Can they do that?

Or, to be strictly grammatical,  the doer in this case being a single entity, if composed of several individuals, can it do that?

The “it” is the Executive Branch of the government of the state of Vermont, commonly known as the Douglas Administration. And the thing that it did was fire a state worker after the Legislature specifically told it not to fire that state worker, an instruction that Gov. Jim Douglas seemed to accept.

As with the grammar, the above description is imprecise. The Administration did not officially “fire” Jens Hawkins-Hilke, the scientist who provided expert advice to local planners involved in the Community Wildlife Program.

It just eliminated his position.

It did so even though the budget bill passed in late May stipulates with no apparent ambiguity that “(i)t is the intent of the general assembly that the fiscal year 2011 budget… funds two (2) limited service Fish and Wildlife Scientist II positions… The Scientist II positions shall continue to implement the landowner Incentive Program and Community Wildlife Program. “

A separate “Statement of Legislative Intent” filed by Appropriations Committee chairs Martha Heath (House) and Susan Bartlett (Senate) asserts that “the policy goal” of the provision is “to have continuity…for the wildlife related local municipal and regional planning…assistance these positions provide including wildlife crossing of roads in developed areas to improve planning for sustaining critical habitat for wildlife preservation.”

Douglas signed the bill on June 3. The next day, Jonathan Wood, the Secretary of the Agency of Natural Resources eliminated one (1) of those “two (2) Fish and Wildlife Science II positions, Hawkins-Hilke’s, the one that “implement(s) the…Community Wildlife Program.”

Could he do that?

Obviously he could because he did, though Hawkins-Hilke and the state employees union have filed a grievance. Until the grievance procedure runs its course, then, it’s premature to conclude that the termination (reduction in force, or RIF, in government jargon) was completely on the up and up.

But it isn’t too early to conclude whether the Executive Branch has the power to terminate a position even after it agrees (as at least implied by the Governor’s signature on the bill) not to terminate that position.

Apparently it does.

“The Legislature can put in language that says ‘you shall’ or ‘you shall not,’” said David Coriell, Douglas’s spokesman. “But when they say what the intent of the Legislature is, that’s a little fuzzier. Intent is not a mandate.”

Coriell, of course, works for the Executive Branch, and could be expected to interpret law and constitution in its favor. But Steve Klein, the head of the Legislature’s Joint Fiscal Office, a lawyer as well as a numbers whiz, agreed that in general “I don’t think legislative intent has the force of law,” and Paul Gilles, the Montpelier lawyer who is recognized as one of the state’s leading constitutional lawyers, said statutes are often “not implemented the way (legislators say) they’re supposed to be,” but courts are reluctant to intervene in jurisdictional disputes between the other two branches.

At any rate, the Legislature does not plan to take this case to court.

“We’re just urging the governor to follow the full intent of the law,” said Tom Cheney of Speaker Shap Smith’s office.

When one side in a legal dispute decides not to go to court, it’s usually because it doubts it can win.

So Hawkins-Hilke’s termination, while perhaps less than noble, arguably even dishonorable, appears to be within the Administration’s constitutional discretion.

Whether it violates the state’s contract with the Vermont State Employees Association is yet to be determined, and Hawkins-Hilke, not surprisingly, asserts that it does, and is therefore illegal.

“According to the union contract, (the RIF) has to be on economic grounds and has to be in compliance with the law,” he said. “The budget bill is law. It was signed June 3, and on June 4 administration continued with the RIF. So it is not in compliance with statute. Nor is it an economically driven cut.”

Yes, it is, insists ANR Secretary Wood, even though it saved only $16,000, the state’s half of Hawkins-Hilke’s pay. The other half came from the federal government.

“I would love the people who are saying that to live a little bit in my shoes,” Wood said. “The agency has had to reduce almost 100 positions…in the last couple of years. Unless you’re in state government it’s a little annoying to cavalierly talk about amounts of money as though they’re insignificant. This has been the largest reduction of state government in history. Every dollar is important.”

But Hawkins-Hilke and others suspect that the Administration wants to weaken environmental planning as much as it wants to save money. After all, it increased spending on some of its preferred functions, such as economic development.

And one email released by Administration Secretary Neale F. Lunderville’s office indicated that at least one Administration official, Human Resources Commissioner Caroline Earle, was “very concerned about this move in the light of the legislative language.”

Other officials, though, were confident that Wood had the authority to terminate the position.

Hawkins-Hilke pointed out that he is not the only environmental planner whose job has been eliminated.

“The only planner in Forest, Parks, and Recreation was RIFFED last year,” he said. The head planner for the Agency of Natural Resources was RIFFED  last year. The Basin Planning Program (part of the Water Quality Division) has taken a substantial hit.”

Dana Farley, president of the Vermont Planners Association, had a similar assessment.

“The planning community’s a little bit perplexed by it all,” she said. “Resources for planning have been cut for many years. We aren’t getting the kind of technical and funding support we used to. The loss of this position really tipped over the cart.”

Wood insisted that ANR would continue to help localities plan for wildlife conservation, though he acknowledged that the service “may not be quite as robust without having an individual dedicated to it.”

Evidence as to whether the position was terminated solely to save money might be found in the emails the VSEA is seeking from the Department under a Freedom of Information Act filing. According to Hawkins-Hilke, Lunderville’s office has complied with the request, and the Agency of Commerce and Community Development replied that it has “no communications whatsoever” on the matter, an assertion Hawkins-Hilke does not doubt.

But ANR is balking, arguing that though the VSEA does not want copies of the emails, only the opportunity to look at them, it must pay for the staff time required for the search.

This, too, could simply be because the hard-pressed agency needs to find all the money it can. On the other hand, just as a decision not to go to court usually indicates a weak case, a reluctance to turn over documents often means that the reluctant party does not want the documents in question to see the light of day.

On April 17, 2009, Aaron B Xue, a 15-year-old freshman at Essex High School who was an honor roll student, a tennis player, and a cellist, shot and killed himself in a field near his home.

The weapon, according to his mother, Ge Wu, a professor in the University of Vermont’s Department of Rehabilitation and Movement Services, was left in the field for Aaron by another Essex High School teenager.

This other boy, Ge Wu said, was both a friend and a tormenter to her son. The other youth, she said, “frequently coerced Aaron, spread rumors about him, and threatened him.”

Essex police would not precisely confirm Ge Wu’s account of where Aaron got the gun, but did not dispute it, either. Captain Brad LaRose of the Essex Police Department said that because the investigation remains “open,” and concerns a juvenile, “the laws are very strict on releasing any information.”

But he did report that “the gun did not belong to (Aaron) or to his family.”

According to Ge Wu, the friend-tormenter actually left two guns, which had belonged to his late father, a State Police officer until his death some five years earlier. The boy also left ammunition for the weapons, she said.

In their grief, Ge Wu and her family did what parents who have lost children often do. They decided to memorialize their son by trying to prevent similar tragedies in the future. In their research, they discovered an ugly little fact about Vermont: its high teenage suicide rate.

As explained in Wednesday’s post (scroll down) Vermont has a relatively high suicide rate for people of all ages. But at least in comparison with most of its sister states in New England and neighboring New York, Vermont’s teen suicide rate is strikingly high.

According to statistics from the Centers for Disease Control, between 1987 and 2006,  2.12 of every hundred-thousand Vermonters under the age of 19 shot themselves to death. Maine’s rate was almost as high, but in the other New England states and New York, the rate was substantially lower. New Hampshire’s was 1.71. The others were less than one per  hundred-thousand. The rate in Massachusetts was only 0.42.

Ge Wu thinks she knows why: guns. Not only are they plentiful and all but unregulated in Vermont, but Vermont and Maine are the only two states in New England without a Child Access Prevention (CAP) law, requiring firearm owners to lock their weapons away from children when they know minors might have access to them.

So she decided to try to get one passed. With the help of professionals dealing with youth suicide, she formed Citizens for Safer Vermont Children and drafted proposed legislation labeled “Aaron’s Law.” One of her legislators, Linda Waite-Simpson, a Democrat of Essex Junction, introduced a bill last February, H. 737

It promptly went nowhere.

Well, it went to the Judiciary Committee, from where it went nowhere, and the committee chairman, Democrat William Lippert of Hinesburg, understands why, and how difficult further progress is likely to be.

“It would take grass roots organizing,” he said. When she came before the committee, we heard very powerful and emotional testimony. But I said to her, if and when this is taken up, it’s not a slam dunk. It’s filled with controversy because it touches on the issue of firearms, even though it is not a gun control bill. Those are the political realities as I see them.”

Lippert is right to see powerful opposition to “Aaron’s Law” from the influential gun lobby. Ed Cutler of Westminster, the chief legislative director and past president of Gun Owners of Vermont, said his organization has “serious problems with that bill.”

First, he said, “the lack of suicide and violence in this state” made the legislation unnecessary.

Worse, he said, “even kids should be able to defend themselves,” and passage of a CAP law could prevent people from getting to their weapons if they were attacked in their homes.

The only example he gave was Kimberly Cates, the Milford, N.H. woman who was murdered in her bed last October. Her 11-year-old daughter was tormented and seriously injured. The family had guns, Cutler said, but the woman’s husband, who was away on business, “had (the weapons) locked up and nobody could get to them.”

If this is Cutler’s best argument, he doesn’t have much of a case. According to the story in the Manchester Union Leader, Kimberly Cates was slain in her bed at 4AM by intruders who snuck into the house. There’s little reason to think that had her husband been home he wouldn’t have been just as fast asleep at that hour. Only taking a loaded gun to bed would have saved them.

This doesn’t mean that the case for a CAP law is airtight. In New Hampshire, which has such a law, the teen suicide rate by firearms was slightly higher than in Pennsylvania, which does not.

Furthermore, a case can be made that CAP advocates are overstating the extent of the danger. Nationally, suicide rates declined among 10-to-24 year-old males from 15.43 suicides per 100,000 in 1991 to 11.39 suicides per 100,000 in 2006, according to the CDC.

And while Vermont’s teen suicide rates are high, the actual numbers are small. IN 2007, the last year for which final statistics are available, four young Vermonters committed suicide, at least two of them with firearms.

The question is whether any of them might not have killed themselves had they not been able to get their hands on a gun. The answer, not from gun control advocates but from data-driven scientists, seems to be yes.

Daniel Webster, a health policy expert at Johns Hopkins University in Baltimore, said an article that he and others published in the Journal of the American Medical Association “examined effects of CAP  (laws) on teen suicide, and found that they did indeed lower suicide risk for teens.”

It may be true that, as Cutler of the Gun Owners of Vermont said, “if (teens) really want to commit suicide, they’re going to find a way.” But studies show that most suicide attempters decide to kill themselves on impulse, an impulse that often fades before they complete the task. Most of those people don’t end up dying from suicide.

“Given these facts,” an article in New England Journal of  Medicine noted, “access to guns likely turns an impulse into a final decision.”

But those are only scientific facts. They may not prevail in the Vermont Legislature, where power – or perhaps, in this case, perceived power – often trumps mere data.

Note: There will be no post next Monday.

Being a man of his word, the News Guy follows up today, because he said he would, on Wednesday’s post, One House, Two House (just scroll down) suggesting that Vermont think about – or at least think about thinking about – getting rid of the State Senate and operating under a unicameral (one house) legislature.

Before embarking on the promised history lesson explaining how the state got to have two legislative houses (which is no more “natural” than one, and is decreed by no higher power), a brief comment on the comments by the commentator who called himself simply “A Nebraskan” (which can be read by clicking on “comments” at the end of Wednesday’s post).

William Wirt: Vermont's favorite

“A Nebraskan” thinks the unicameral legislature in his state is a disaster, and he seems to have a good case. But the problems he mentions stem less (if at all) from the Legislature’s unicamerality (if that’s a word) than from two other peculiarities of the system there: non-partisanship and term limits.

Without a party structure in the Legislature, “A Nebraskan notes,” not only the state lawmakers but also its “representatives in Congress are unfamiliar with a body run on party lines, and we end up with weak back benchers getting lost in the highly partisan system in Washington.”

And thanks to term limits, he said, the Legislature has little “institutional memory” and “the balance of power has shifted to lobbyists and department heads appointed by the governor.”

Neither problem would bedevil Vermont, where partisanship is vigorous and relatively civil, and where term limits, surely one of the worst political ideas of the last millennium or so, has never had much of a following.

As mentioned Wednesday, Nebraska may now be the only state with one legislative house, but it isn’t the only one in history. From its creation in 1777 until 1836, Vermont had a unicameral legislature, and even though State Archivist Gregory Sanford warns that discussing the details could make one “the most boring guest at a cocktail party,” there’s a lesson to be learned in how and why the state switched to two houses.

Way back before the slogan “one person-one vote” was common, each of Vermont’s 246 towns chose one member of the General Assembly’s single house, in a September election, for a session which met every October and ended sometime in November.

The governor, at least until after 1800, had no veto power. But he was also the head of a twelve member Council, and together, the Governor and Council could either “concur with, or propose amendments to, bills passed by the house (or)  suspend passage of a bill until the following session,” in the words of a speech Sanford made in 1999.

The Council, then, though part of the Executive Branch, had quasi-legislative powers. It was a semi-Senate. And its 12 members were elected at large, meaning none of them represented any particular part of the state.

The upshot, Sanford said, was “a lot of tension,” especially because the Legislature was “fragmented among multiple parties,” including Whigs,  Democrats, and the anti-Masonic Party, which was briefly powerful in Vermont, the only state to give its electoral votes to the party’s 1832 presidential candidate, William Wirt. (No Republicans, yet; they came along later).

Complicating matters further, Sanford said, was the “unofficially but rigidly adhered to ‘Mountain Rule,’” requiring that a governor from one side of the mountains would be succeeded by someone from the other side.

All this turmoil came to a head in 1835 when the governor’s race was won by…nobody. Then as now, a candidate for governor needed a majority, and when the divided electorate did not provide one, the election went to the unicameral General Assembly.

Which couldn’t provide one, either, not even after casting 63 ballots over a three-day period starting October 9. In desperation (or something) the lawmakers finally installed Lt. Gov. Silas Jenison as Acting Governor, the first governor, Sanford said, to have been born in Vermont.

At this point, apparently even the General Assembly was embarrassed enough by itself that it “resolved to create a senate, a deliberative body to check on the exuberance of the House.” To provide greater local representation than the Governors Council, the Assembly opted for a 30-member Senate, half elected by county, the other half at-large.

But there were only 13 counties, meaning substantially less than half the senators would be elected from districts. Looking at the map, and no doubt the politics, the movers and shakers of the day apparently couldn’t figure out how to create two new counties. So they settled on one, and created Lamoille county. Now there could be 14 senators representing counties and 16 elected at large.

It took a Constitutional amendment in 1836 to create the Senate, with the lieutenant governor as presiding officer. As is true in other states which follow the same model, a little confusion about executive-legislative power remained. To which branch does the lieutenant governor belong?

To the executive, said Lt. Gov. David Camp in his opening address to the first senate.

“It seems very obvious that a body, which does not choose its presiding officer, cannot with propriety assign him the power of appointing its committees and officers,” he said.

So he didn’t, and the lieutenant governor still doesn’t.

(Nor does the vice president of the United States, though Dick Cheney once tried to argue that he was not subject to certain executive branch rules because he was really part of the legislative branch. The argument was not convincing).

What all this history has to do with today’s situation is that it has nothing at all to do with it. The turmoil that prompted the General Assembly to create a senate – many parties, the Mountain Rule, the Governors Council with a foot in both branches – no longer exists, so present no arguments against Vermont considering a return to unicameralism.

But why stop there? Check the third comment to Wednesday’s post, not from a Nebraskan, but from a Vermonter who wondered what would happen if the state adopted a Canadian-style parliamentary system (“minus the Queen,” he said) where a legislative (parliamentary) majority would choose a prime minister rather than a governor.

This reader thought such a system would lead to “the formation of third parties and coalition governments.”

Maybe and maybe not. And that might or might not be a desirable outcome. But it’s worth a little musing. Continued anon.