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.

Talk about a slam-dunk no-brainer.

Here’s a gift, worth millions in plain money, and more in measures money can’t match.

It’s for everyone. First for residents of the Northeast Kingdom, but also for all Vermonters, every American, even anyone in the world.

Not to mention the world itself.

Who could turn it down?

Maybe we could.

“We,” here, is technically the United States of America, or to be precise the Fish and Wildlife Service of its Interior Department, which now has 62 days to accept the gift of  more than 400 acres of land, including 1.4 miles of shoreline along Lake Memphremagog and 228 acres of wetlands.

Or it will turn into a pumpkin.

No, worse. Or it will be sold to whoever will pay the most for it, likely to be someone who will build immense and nearly identical McMansions.

Such are the terms of the will of Michael Dunn, who died on September 1, 2007, and who bequeathed his more than 800 acres on both sides of the U.S.-Canadian border to governments, hoping to preserve the land’s “open state” and recreational potential.

But only if those governments agreed to accept the donations within three years of Dunn’s death. Otherwise, the land is to be sold to provide the maximum benefit to another passion of Dunn’s life – the Modern Museum of Art in New York. That doesn’t give Fish and Wildlife much time.

(The federal government of Canada actually rejected the offer, but Quebec Province accepted, so the Canadian portion is saved. For whatever reason, Dunn did not offer a similar option to the state on this side of the border).

It isn’t that Fish and Wildlife is against accepting the gift. At an afternoon tour of the site yesterday afternoon, and later at a public hearing in Newport, Agency officials left little doubt that they wanted to preserve the land and that “we are aware of the deadline,” in the words of Janet Kennedy, the Massachusetts-based regional supervisor of the Service’s Wildlife Refuge System.

So what’s the problem?

Actually, there are two problems, and though right now it looks as though the deadline will be met, both problems illustrate how difficult it often is to get anything done these days in America, and perhaps especially in Vermont.

The first problem is that there is actually some opposition to accepting Dunn’s bequest. Not from the town of Derby, which considers saving the land “a real asset,” Selectboard member Karen Jenne told the hearing. Not from the State Legislature, which overwhelmingly passed a resolution urging the feds to take the deal. And not from the owners of neighboring lakeside cottages, several of whom came to the hearing to urge acceptance.

But Sherb Lang is against it, and so is Hunters, Anglers, Trappers of Vermont (HAT), of which Lang is the president. Lang raised no specific objections to federal ownership of the Dunn land. In fact, he called it “a wonderful piece of property.” But he and his associates are angry at the State Fish and Wildlife Department over other issues, and they remain furious about the 12-year-old sale of what were once called the Champion Lands to the state and federal governments.

This is, in short, a policy position founded on resentment, not an unusual phenomenon in rural Vermont.

The other, more influential, dissenter at the hearing was Duncan Kilmartin, the Republican State Representative from Newport. Kilmartin contended that the plan under consideration by state and federal officials didn’t really honor Dunn’s will, which specified that the land should remain available for “hikes and campers.”

Instead, Kilmartin said, the draft Environmental Assessment (the official subject of the public hearing) gives priority to conserving resources and wildlife habitat rather than human uses such as hiking and camping.

It’s unlikely that Kimartin has a better grasp of what Dunn wanted than does Michael Hickcox, the long-time family friend of Dunn’s who flew to Europe to bring Dunn’s remains home and who flew to Vermont from his San Francisco home for last evening’s hearing.

The proposed plan for the land is “in terms of spirit, exactly what (Dunn) would want,” Hickox said.

Besides, the draft EA does specify that under federal ownership the land will be open to hunting, fishing, and camping. But the proposed new owner is the Fish and Wildlife Service, whose basic mission concerns…fish and wildlife and their habitats. The Service can’t very well take ownership of land primarily for another purpose. Still, people fish, hunt, and camp on its lands all over the country.

The other problem has to do with bureaucratic sclerosis, some of it created by environmental law, which, in this case at least, might end up making it harder to protect the environment.

The National Environmental Policy Act of 1969 creates a complex and elaborate system of processes that have to be followed before a federal agency can acquire property, even for free.

As Janet Kennedy explained it last night, the first step was a “preliminary project proposal,” which started the NEPA process, leading to the draft EA examining whether the proposal “would significantly affect the environment” and proposing alternatives (in this case just two: take it or leave it).

What is happening now is the legally required comment period, after which a final EA will be issued and the regional supervisor will or will not issue a Fonsi, which is not a character in an old sitcom but a Finding of No Significant Impact, after which the Acting Fish and Wildlife Director in Washington may grant “permission to expand the boundary” of the existing Missisquoi National Wildlife Refuge, which will include the Dunn land, non-contiguous though it may be.

Got all that?

There is also the possibility that the whole process didn’t start soon enough. The trustees of the Dunn estate seemed to have had trouble navigating the political shoals in Washington until they turned to the Vermont Land Trust for help.

“You would think that giving away this land would take a ten-minute meeting and a handshake,” said Mark Frederick of the Community Financial Services Group, which is handling the Dunn trust. “But some said it wasn’t their jurisdiction, others said the property was too small for them, or they didn’t have the funding.”

When the VLT came into the picture, Frederick said, so did Vermont’s Congressional delegation, and then the process began to move.

In time? Jonathan Wood, the Vermont Agency of Natural Resources Secretary who conducted last night’s hearing with a booming voice and a soft touch, said he thought so. The state’s Fish and Game Department (part of Wood’s agency) will probably end up managing the new addition to the federal system, but it won’t cost much. The basic management plan is to leave it alone, and anyway the feds will pay for most of what has to be done.

See? A no-brainer slam-dunk.

Unless it isn’t.

Forenote: There will be an extra News Guy posting tomorrow, Thursday (as well as the usual Friday posting), along with an announcement about some new developments at the web site which we trust will be received favorably.

Actually, it might be more accurate to consider today’s post the “extra” one. Tomorrow’s will have more news; what follows is a bit of musing on Vermont and consistency.

Back in the day, Sen. Russell Long, the Louisiana Democrat who chaired the Senate Finance Committee for a century or so, used to sum up the average person’s attitude toward taxation as follows: “Don’t tax you, don’t tax me, tax that fellow behind the tree.”

Bad poetry, but good political analysis.

As Vermonters are now learning (and proving), the same phenomenon applies to spending. From Gov. Jim Douglas on down, the attitude of the body politic is: “Cut the other guy to the bone, but leave my favorite program alone.”

Poetry no better. Perspicacity identical.

Exhibit A comes right from the top. For years, Vermont farmers and woodland owners have gotten a tax break thanks to the “current use” tax assessment. Nobody opposes this policy in principle; it’s kept thousands of acres open and green by removing an incentive for landowners to sell to developers.

But it’s also expensive.

According to whom?

According to the Douglas Administration, whose tax commissioner, Richard Westman, just a few weeks ago identified the Current Use policy as one reason everybody else’s property taxes keep rising.

As it happens, over the last year or so, the various “stakeholders” of Current Use – farmers, foresters, environmentalists, local officials – have been meeting to try to figure out a way to get a little more money for the state treasury without seriously diminishing the advantage to landowners.

And they succeeded. Or at least most of them thought they did, and they presented the Legislature with a plan that would bring in another $1.6 million in revenue.

Oh, no, said the Douglas Administration, represented in this case by Agency of Natural Resources Secretary Jonathan Wood. Yeah, we need money. We’re $150 million in the hole. But we don’t want money from these landowners because…well, because it’s a good program, Wood said.

Yeah, but they’re all good programs. Maybe what he really meant was—These are our friends.

Then there was the Governor’s major power play to get a special Legislative Board to approve spending several more million dollars for one of his pet programs even as he insists on cutting almost everything else. This was the cap-raising of the Vermont Economic Growth Incentive . (See VEGI Burgher,” the January 13 post)

Assume for the sake of discussion that this, too, is a valuable program. But it never seemed to have occurred to Douglas to apply the same standards to it that he wants imposed on other agencies—spend less than you have in your budget this year because we all have to tighten our belts.

Do not suppose, though, that this “cut everybody but me” attitude is limited to Douglas and his fellow Republicans. At a Democratic fund-raiser a couple of weeks ago, former Gov. Howard Dean scolded lawmakers who might be willing to consider reducing the budget of the Vermont Housing and Conservation Board.

“We need that program,” Dean said. “It is the perfect public-private partnership.”

It may be, and like Current Use, it has been useful as a conservation mechanism. But it couldn’t survive a year or two with a little less money?

The liberals are somewhat less inconsistent than the conservatives here, because some of them openly call for some targeted and temporary tax increases to help the state over its $150 million budget shortfall. But everybody agrees that programs will have to be cut.

Just not their favorites.

OK, some folks are willing to take less. State workers took a three percent pay cut. Yes, they did it under pressure and to avoid more layoffs, so it wasn’t just an act of noble sacrifice. But it was a sacrifice, as was the five percent pay cut taken by their bosses, the “exempt” state workers who earn more than $60,000 a year. The Stowe teachers agreed to give up the 5.5 percent pay hike they had negotiated for this year.

But these seem to be the exceptions. The default position for Vermont advocates left and right remains a firm and forthright conviction to cut spending. On everybody else’s programs.

Aftnote: Because the News Guy rarely misses an opportunity to ridicule or insult the Burlington Free Press when it deserves ridicule or insult, it’s only fair that the paper’s triumphs be recognized. Last Sunday alone it had three pieces of first-rate journalism: Sam Hemingway’s lead story about tritium contamination at nuclear plants nationwide, Nancy Remsen’s story about the potential impacts of state budget cuts, Candace Page’s fascinating account of niche marketing agriculture in Vermont.