To Plan or Not To Plan
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.
