Five or so years ago, as Rep. Bill Frank, an Underhill Democrat, remembers it, he helped guide a bill through the Legislature setting up a computerized prescription drug data base to prevent people from getting prescriptions for the same drug from two or three different doctors, either to sell the surplus or to over-medicate themselves.

It worked. Gov. Jim Douglas’s Administration set up that data base after only, as Frank remembers it, three and a half years.

“Sometimes you just have keep track,” Frank said Every January I would have the person who was in charge of setting up the system come into our (House) committee (on Human Services). Just sort of on my own.”

It wasn’t, Frank said, that he and his fellow lawmakers were being stonewalled.

“Whenever I called the commissioner they were very responsive,” he said. ”I’d get answers. But I sometimes wondered: Is this the role of legislators? To follow whether the laws are implemented?”

Maybe it is.

If so, the Vermont Legislature works under certain disadvantages. It is, as Frank noted, “a citizen legislature,” which, he said “works great, but basically we can’t do oversight only for three or four months a year when the legislature is in session.”

Whether or not it “works great,” another way to describe a “citizen legislature” is “amateur legislature.” The $625.36 a week salary (only when the Legislature is in session) is one of the lowest in the country. Even the leaders, who get extra pay, have day jobs. House Speaker Shap Smith works at a law firm. Senate President Peter Shumlin operates a business in Putney.

Individual legislators don’t have staff, either, as they do in most states. There is a Legislative Council’s office, with a staff of 35 (that’s not just professionals; that includes support staff), and the 13-person Joint Fiscal Office. A few aides work for the leaders and some committees, but according to Brenda Erickson, a senior research analyst at the National Council of State Legislators, “Vermont has one of the smallest, if not the smallest, staff of any legislature.”

The Governor may work just down the hall from the legislative chambers. But his is a real job, paying a tad more than $150,000 a year, the tenth highest of the 50 governors. He appoints six agency secretaries, each of whom also earns more than $100,000 a year, and the heads of 21 commissions and six boards. Every one of them is fully staffed. Almost every one has a public relations spokesperson and one worker who, whatever his or her job description, lobbies the Legislature.

Not that the governor’s administration (not capitalized here because it would apply to any governor of either party) is the Legislature’s only source of information. Lobbyists for all sorts of business and causes assail lawmakers with facts (or alleged facts) and analysis almost every day, and the legislative staff regularly runs the numbers on tax and spending proposals.

Still, there is no doubt about which branch of government outweighs the other when it comes to making its case to the press, the public, the entire political process.

As in most states, the Vermont Legislature gets most of its information about the executive branch from the executive branch. Up to a point, lawmakers seem satisfied with the cooperation they get.

“I have had no trouble with having commissioners or agency secretaries come before my committee,” said Ann Pugh, the South Burlington Democrat who chairs the House Committee on Social Services. If she summons lower-level officials, she said, they appear, too, but they “usually come with their boss. I understand the position they are in. They represent the governor.”

But like many legislators, Pugh said she sometimes thinks administration officials hold back information.

“When the initial personnel cuts being discussed in 2007 I was told, we won’t know until June 30 who we’re going to lay off July 1,” she said. I kept asking them about what would be the impact in terms of the service the state could provide.”

She said she never got a satisfactory answer.

As explained in Friday’s post (just scroll down), Vermont legislators might have a harder time getting information from the executive branch because the state is one of the few in which legislative committees do not have the power to issue subpoenas.

“We can’t question people under oath, either,” said Rep. Tony Klein, the East Montpelier Democrat who chairs the Hose Committee on Natural Resources and Energy. “For most part it hasn’t been necessary, but there have been times, I won’t tell you somebody lied, but they certainly didn’t give the full picture.”

Like other Democrats, Klein said Douglas runs “a very controlling administration,” including restrictions on allowing some state officials to appear before a legislative committee unless their supervisor was also present.

Both Klein and House Majority Leader Floyd Nease of Johnson said that the Douglas Administration has more public relations aides than any previous administration, and sometimes sent them, rather than officials actually responsible for the functions of government, to appear before legislative committees. The administration, both Democrats said, was more intent on “staying on message” than sharing information.

That the Douglas administration has more flacks than its predecessors is not debatable, having been documented by Shay Totten in Seven Days. But just as Douglas employs more PR people than Dean, it is likely that Dean employed more than Richard Snelling before him, who had more than Madeleine Kunin before him, who had…

All administrations, state and federal, Democratic and Republican, want their officials to stay “on message.” If earlier Vermont administrations were less vigorous in enforcing that rule, it was probably because until recently both the governor and the legislative majorities were Republican, and because in the pre-television era, “message” could be controlled informally and in person.

No longer. Not just TV, but direct mail, push polling and ideological blogging have come to Vermont. The modern spin era is here, and will not disappear if the next governor is a Democrat. Unless the Legislature asserts itself, he or she is likely to be as secretive and uncooperative as the incumbent.

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NOTE: Today’s post wasn’t planned to be the first of two parts, but the subject ended up being too complex and too intricate to deal with in one sitting. Oversimplifying a bit—today the theory, Monday the down and dirty politics.´

Remember Ashley Ellis?

Don’t beat yourself up if you answered in the negative. Neither, it seems, do most Vermonters.

Ellis was the 23-year-old woman who was serving a 30-day sentence in the Northwest Correctional Facility in St. Albans last August when she died because she didn’t get the medicines she needed.

Her death was a story in the newspapers and on the air for a few days, until Franklin County States Attorney James Hughes decided not to press criminal charges. Then the whole affair faded away.

In an interview Thursday, Hughes said he found no evidence of criminal activity on the part of “any individual.” Prosecutors may bring criminal charges only against individuals. But Hughes’s answer implied that he wasn’t convinced that nobody had done anything wrong.

On the face of it, some person or organization did something fatally wrong. Ellis was not blameless. The auto accident she caused put a man in a wheelchair for the rest of his life. But her offense was a misdemeanor. She was sentenced to 30 days, not death. Even the most cursory examination of the details indicates that somebody – a doctor, a nurse, the Department of Corrections or Prison Health Services (PHS), the private company hired to provide health care to inmates – did something very wrong. Perhaps something inexcusably wrong.

From one perspective, it makes no difference. As quietly as possible, the matter has been dealt with. Conveniently, the state’s $16.4 million contract with PHS expires next month, and the company decided not to try to get it renewed. And according to reliable (if unidentifiable) sources, the nurse who didn’t get Ellis her medicine has been fired.

But the public will probably never know the details. Nor are the policy implications of Ellis’s death likely ever to be discussed. Absent criminal charges, Vermont’s authority to investigate such occurrences is effectively non-existent

The Corrections Department could scrutinize itself, were that not a contradiction in terms. The Secretary of State’s office regulates “professional conduct,” but the head of that division, Christopher Winters, said it could impose only “administrative penalties,” at most revoking a nurse’s license. Winters said the law barred him even from saying whether his agency was looking into the circumstances surrounding Ellis’s death.

But what about the legislature? In many states, as well as on the federal level, committees of the legislature or Congress can and do investigate the workings of the executive branch. In neighboring New York, for instance, the Senate has a committee on Investigations and Government, the Assembly (what New York calls its “lower” House) a committee on Oversight, Analysis, and Investigations, both of which regularly monitor the behavior of state agencies. In Virginia, the Joint Legislative Audit and Review Commission of the General Assembly “assesses the performance of the agencies and programs (the Legislature) creates.”

Vermont doesn’t do any of that. In fact, by both culture and law, Vermont’s legislature appears to be one of the weakest in the country in its capacity to find out about what’s going on in the executive branch, much less to monitor it or to probe into possible incompetence or misconduct.

That’s one reason the administration of any capable governor of Vermont – and Jim Douglas fits that description – has substantial leeway to follow the policies it pleases and ignore those it dislikes, sometimes perhaps even to ignore laws it dislikes (details Monday). It isn’t exactly that nobody is standing guard over executive over-reach; it’s that the guard is not heavily armed.

The Legislature’s impotence in these matters seems perfectly illustrated by the Ellis case, because one of its few permanent oversight committees is a joint House-Senate committee to monitor the Corrections Department..

Its chair, Rep. Alice Emmons , a Democrat from Springfield, said the committee “looked into (the controversy over Ellis’s death) as it was occurring. We’ve had conversations.”

But conversations are about all the committee can have. It is designed, Emmons said as “an interim committee,” which only meets six times a year when the Legislature is not in session. Its only staff, she said, “is one legislative person, and (investigation) would be beyond his capacity.”

Emmons was not criticizing the staffer’s ability, merely his authority, which does not extend very far. Neither does the Legislature’s in general, at least not when it comes to looking into the goings-on in the executive branch.

To begin with, it’s not even certain that the Legislature (or General Assembly, to use its formal, legal, name) has subpoena power. Emily Bergquist, the Director and Chief Counsel of the Legislative Council’s Office, said the Legislature has “the authority to inform itself about issues,” and because “it’s been said that subpoena power goes with the power to inform,” subpoena power would be “sort of inherent.”

But only the Legislature as a whole has that power, she said. Individual committees do not. In fact, if a committee of either house wanted subpoena power, resolutions from both chambers would probably be required before the subpoenas could be issued.

All that rigmarole creates such a disincentive to use the subpoena power that it might as well not exist.

Legislators are aware of the situation, and increasingly dissatisfied with it. Earlier this year, the Senate passed a bill that would grant each committee the power to issue subpoenas. The bill was referred to the House Judiciary Committee.

House Speaker Shap Smith acknowledged that the Legislature was so “constrained by some of the tools we have” when it comes to its oversight function that it sometimes seemed to be “at the mercy of the executive branch, which can say, we don’t want to provide that information so we’re not going to.”

Smith, a Morrisville Democrat, said lawmakers “sometimes have questions about whether you’re getting everything that you should.”

Vermont is not the only state that does not give committees the right to issue subpoenas. Brenda Erickson, a senior research analyst at the Denver headquarters of the National Council of State Legislatures, said rules and procedures vary widely from state to state. But in many if not most states, legislative committees can issue subpoenas.

Erickson said that even where committees are authorized to issue subpoenas, they rarely do. Still, it requires expertise in neither political nor behavioral science to understand that a witness will provide more complete answers knowing that the committee asking the questions has the power to compel testimony if it is dissatisfied with the answers it first gets.

Then there is the question of which branch of government decides who will provide the answers to begin with. If, for instance, a Legislative committee heard reports of incompetence or corruption at Frogwart Hollow State Park (a hypothetical example; there is no such park) and wanted to question the director of that park, nothing now requires the Department of Forest Parks and Recreation or its parent Agency of Natural Resources to produce that director. It could send the Department head, or the Agency Secretary.

Or increasingly, a public relations spokesperson said House Majority Leader Floyd Nease, a Democrat from Johnson.

According to Anthony Iarrapino of the Conservation Law Foundation, the above hypothetical example about the park isn’t all that hypothetical. Iarrapino, an environmental lobbyists, said that in his experience lawmakers too often “get who the (Natural Resources) Agency wants to give them (at a committee appearance) instead of saying, ‘this is who I want to speak to.’”

Like most discussions in Montpelier, this one is at least partly political. The Legislature is run by Democrats, this administration by Republicans. Some Democrats say they think the Douglas Administration is more secretive and less straightforward than its predecessors, making vigorous legislative oversight more important than ever.

Grading administrations on how cooperative or evasive they are with legislative committees is close to impossible. And it may be that a Democratic administration would be no different. The modern political world – more professional, more formal, more communications (or maybe just “spin”)-oriented, more influenced by money and lobbyists – is invading Vermont.

All of which would tilt the balance of power in the direction of the executive even if the Legislature had more clout than Vermont’s.

MONDAY: Monitoring the Douglas Administration.

Tuesday evening was the News Guy’s last University of Vermont classes for the semester, meaning for the year (the “spring semester” in these parts really being the winter semester, when the round trip drive to Burlingburg becomes what the economists would call a disincentive).

The intellectual energy required in corrupting the young being so great, especially at its grand finale, the News Guy returned home with insufficient mental energy to summon a coherent through, much less to compose deathless prose.

There will, therefore, be no posting today.

Check back Friday for some substantive questioning about whether it is Vermont’s culture or its constitution that prevents it from pursuing minimal efficiency – and sometimes basic decency – in government.

Meanwhile, there are some 22 days left in the year, and thus far the pace of donations is not quite sufficient to reach the 200 sought by December 31.

The inclination is to continue on. Much of the support expressed has been gratifying. But another flurry of donations would be helpful. Any amount will do. Look up at the right and click on “Donate” under “Pages,” and act accordingly.