Vermont Legislature SmartTranscripts:

[Alice M. Emmons (Chair)]: Welcome, folks. This is House Corrections and Institutions Committee. It is Tuesday, March 10. And we're shifting gears back to corrections. We're going to be working on House Bill five fifty. We have a new draft before us, 1.3. And we have our legislative counsel here with us who's going to walk us through the new bill. Welcome, Hillary. So if you could introduce yourself.

[Hillary Chittenden (Office of Legislative Counsel)]: For the record, Hillary Chittenden aims for the Office of Legislative Counsel. Delighted to be back. This draft is in large part thanks to the efforts of the subcommittee. So, Representative Headrick, your first name, Galfetti, Representative Galfetti, and Representative Minier, and Jen and Josh from DOC. So many thanks to all

[Alice M. Emmons (Chair)]: of their efforts. And before you get started, we did have a sheet of recommended changes from DOC and you've incorporated those. Yes. Correct. And then we also talked about codifying our support of the PREA standards, and that's what the subcommittee worked with DOC on. And that's the end of the

[Hillary Chittenden (Office of Legislative Counsel)]: bill for that. Correct. So this bill has the same general topics that were in the as introduced bill. But for some of them, as I'll point out along the way, they're a bit reformulated in response to some of the DOC comments. The one main so there will be new language in a number of parts of the bill, and I will point that out. But the main new section will be, as the chair mentioned at the end, looking at authorizing the department to adopt PREA standards as a matter of state law.

[Alice M. Emmons (Chair)]: So we'll walk through.

[Hillary Chittenden (Office of Legislative Counsel)]: There are eight sections. We'll go ahead and walk through them. Because of the number of changes, I did not include the usual highlighting to show differences, but I will point out where something is the same as the as introduced version or where it is different. So starting on page one with the intent section. Subsections A and B are the same intent subsections as in the bill as introduced. Subsection C is a new intent section. So this is adding some clarity about the intent of the bill, recognizing how the department is designed and built, and also as context for the new section referencing the PREA standards. So subsection C, this is line 20 of page one. It is the further intent of the General Assembly to recognize that although the Department of Corrections system was built within traditional gender framework that solely recognized the male and female genders. Gender diverse, intersex, and transgender incarcerated individuals are at a higher risk for abuse, harassment, and sexual violence. This language is pulled from some DOC policy language. Any questions about the intent section before you leave Billmer?

[Alice M. Emmons (Chair)]: So by listing gender diverse, intersex, and transgender incarcerated individuals. Is that limiting? So just those folks?

[Hillary Chittenden (Office of Legislative Counsel)]: That is leading us into the definition section that we can discuss a little bit more. The choice of gender diverse, especially gender diverse as an umbrella term, along with intersex and transgender, is intended to cover a range of possible identities without exclusion. So gender diverse in particular is an umbrella term. As we'll talk about in the definition section, there are some trade offs in choosing whether to include definitions in statute. There are certainly clarity benefits. Be clear about when you're referencing these terms, what you intend them to mean. There can also be some drawbacks where terms change frequently, where understandings change, where terms that are considered appropriate change more frequently. So there are some different considerations for the committee to balance in thinking about whether to include definitions in the bill. So the half answer to your question, Cher. But if no other questions on the intent section, I think that leads us into definitions. Perfect. So section two, it's on page two, line four. 28 VSA section three is the definition section for all of Title 28. Some of these definitions were in the bill as introduced in subsections, but because of the reorganization, they are now moved to this general definition section. We've also added some new terms that I will flag. One thing to note is that this definition section as drafted, if the committee chooses to go forward with this as drafted, there will be a couple additional cross references where other parts of Title twenty eight and one section in Title 20 reference the number of these specific definitions, some of which change, as you'll see. So just a flag of the committee. It's not included here until the committee decides to move forward with the definitions as formatted. But that will be one thing that we'll need to do for consistency.

[Alice M. Emmons (Chair)]: So these definitions right now are not in the bill as it was introduced?

[Hillary Chittenden (Office of Legislative Counsel)]: A few of them are. So I will flag big picture, gender diverse, gender identity, health care practitioner, intersex, sexual orientation and transgender are five terms that were not previously included in the bill as introduced. Gender pronouns and honorific were both included in the bill as introduced. So those are not new. Gender identity is defined based on the definition already in statute in one BSA 144. But this was not included in the bill as introduced, but it's not a new definition. The other definitions for purposes of discussion, the subcommittee choice was to use slightly modified for statutory language, but definitions that DOC policy uses for these terms. So

[Alice M. Emmons (Chair)]: as an example, gender diverse would be the definition that would be used within corrections. Correct.

[Hillary Chittenden (Office of Legislative Counsel)]: Would not necessarily be used outside of corrections. Correct. Putting it into 28 VSA section three means it applies to anything in title 28, but not necessarily.

[Alice M. Emmons (Chair)]: That clear to folks?

[Josh (Department of Corrections official)]: Yes, ma'am.

[Hillary Chittenden (Office of Legislative Counsel)]: So I'll go ahead and read through them. And again, there are different options for the definitions of these terms. The bill draft uses the definitions that the department policy does, slightly modified for statutory language. And if the committee is interested in hearing anything further about the considerations and including or not including definitions, we can certainly turn to that.

[Alice M. Emmons (Chair)]: So I didn't understand that. The definition is based on

[Hillary Chittenden (Office of Legislative Counsel)]: So DOC policy includes definitions of these terms.

[Troy Headrick (Ranking Member)]: So

[Hillary Chittenden (Office of Legislative Counsel)]: DOC does not pull all of them from statute. They are what DOC puts in its policy. We have used in the bill or the bill uses those definitions that DOC uses for its policy for these terms.

[Alice M. Emmons (Chair)]: In a statute in title 28, just for corrections?

[Hillary Chittenden (Office of Legislative Counsel)]: Yes. Right now, it's only in their directives or policies. Correct. So right now, Title 28 does not have definitions of these terms, and the statutes generally do not have definitions of these terms. In offering definitions to consider, the choice made by the subcommittee was to use the definitions that DOC policy sets with. Does that help answer?

[Alice M. Emmons (Chair)]: I would have expected to hear policy period. But then I heard a phrase after that, it said there's some modifications.

[Hillary Chittenden (Office of Legislative Counsel)]: Got it. So one way that statutes format definitions is if it's a noun, you say, the word means followed by the definition. And if it's an adjective, you say the word describes followed by the definition. That's not the formatting that DOC uses in its policy, but it's that small change

[Josh (Department of Corrections official)]: Gotcha.

[Hillary Chittenden (Office of Legislative Counsel)]: Between the policy and this.

[Troy Headrick (Ranking Member)]: Got it. Thank you.

[Alice M. Emmons (Chair)]: Well, and then I think the commissioner had his hand up.

[Unidentified Committee Member]: And the commissioner might actually answer this, but just based on what you said, I want to clarify that there's no new definitions that are not included in DOC's policy currently, correct?

[Hillary Chittenden (Office of Legislative Counsel)]: I am not sure that the two definitions in the bill as introduced, I would have to check. So gender pronoun and honorific. I think those are in DFC policy. But for those two, for the bill as introduced, I would have to check.

[Josh (Department of Corrections official)]: I'll let you know in a minute.

[Hillary Chittenden (Office of Legislative Counsel)]: Thank you. Perfect. And health care practitioner, I'm sorry, that's the one outlier that I can explain separately. You're talking with Katie McLinn. But for gender diverse, gender identity DOC also uses the statutory definition. So gender diverse, gender identity, intersex, and transgender. Those come from DOC policy. Does that help?

[Josh (Department of Corrections official)]: Yes. So,

[Alice M. Emmons (Chair)]: Commissioner, you

[Laurie Fisher (General Counsel, Vermont DOC)]: You can don't have your hand up.

[John Murad (Commissioner, Vermont Department of Corrections)]: Thank you. I did.

[Alice M. Emmons (Chair)]: So just identify yourself for

[John Murad (Commissioner, Vermont Department of Corrections)]: the For the record, John Murad, commissioner of the Vermont Department of Corrections. And I am raising a general sort of question, which is the degree to which this level of both granularity and I think specificity that is that will then become engraved in law is appropriate for statute as opposed to policy. Some of these definitions of things that have changed even over the course of the last ten years and in order to maintain I think a posture that aligns itself with the most current interpretation of some of these issues that are fraught and are ever evolving, policy is a more appropriate place for these kinds of things than statute.

[Hillary Chittenden (Office of Legislative Counsel)]: Policy decision for the committee about whether for one or more of the definitions, the trade offs warrant including it or not including it.

[Alice M. Emmons (Chair)]: Quite often, we put in definitions in statute in a particular title because those words or terminology are used throughout that statute, throughout that title. And we need to be clear in terms of how we define how do we how we define that word or the interpretation of that those particular words. So I understand what the commissioner is saying about policies, but when you're doing language and in statute, you need to be very, very clear what words mean. And that's why we put in definition

[Hillary Chittenden (Office of Legislative Counsel)]: sections. One consideration to offer is that if a court is reading or anyone, really, when you read a statute, if there is a definition section that defines it, you use that definition. If there is not, you use the plain language understanding of that word. So it can be especially helpful to include definitions if you want to indicate that it means something other than a plain language, meaning what someone reading it would understand. So then the question becomes, if it's the plain

[Alice M. Emmons (Chair)]: language interpretation, is that different than what's in policy and DOC in terms of their interpretations? Because we're picking up in statute what's their current policy definition of the term. I

[Hillary Chittenden (Office of Legislative Counsel)]: don't think that plain language would be meaningfully different from the way DOC defines these terms. I think that is just one. I offer the plain language definition as something for the committee to consider in balancing against the fact that the meaning of terms does change. And I think particularly in this area, what terms are appropriate and how they're understood change somewhat more frequently than in other areas. And so if you do not include definitions, it doesn't mean that no one's going to know what you mean. But it would mean that someone would rely on the plain language understanding of the term. So if you think that that plain language would not be sufficient, then that would counsel towards including potentially including a definition. But there trade offs on both sides as you're hearing.

[Alice M. Emmons (Chair)]: If a term is not defined and then that piece of legislation ends up in court, and then the court asks what's the legislative intent of that term because it's not defined. Would something like that happen at times, maybe?

[Hillary Chittenden (Office of Legislative Counsel)]: It could. Again, I think when courts or really any users of the statute, I should say, when they are reading a statute and wondering what a term means. If there isn't a definition, they will use They'll go to the dictionary, they'll use a plain language understanding, and that provides some more statutory flexibility. I don't understand these definitions to be distinctly different from a plain language understanding of the term, but I think non legal minds could also think about that and have opinions. So I just offer that there are these trade offs. I think you're hearing there are some trade offs to including definitions or not. And that really is a policy question for the committee to weigh in deciding whether to include them.

[Conor Casey (Member)]: Hillary, just any issues with defining correctional officer so broadly, right? Because there is a position title correctional officer, but there's also probation and parole officer, because the community. But in this case, correctional officer is all encompassing of anybody supervising anybody inside or outside the facilities.

[Hillary Chittenden (Office of Legislative Counsel)]: Now you're making me answer current law. Yeah. I don't know about. So that definition exists in current law. I'm happy to look further into your question. The only reason it's in the bill, it doesn't substantially change that, is that that definition will be renumbered if the bill were to add these definitions.

[Conor Casey (Member)]: And do you think it's broad enough in the bill the way it defines correctional officer? Because there could be other contractors who might not directly supervise the staff who you would still want using the same language like the honorific, right? It might not be captured in that definition? Just wondering, yeah.

[Hillary Chittenden (Office of Legislative Counsel)]: No, it's a great question. We can confirm when we get there.

[Conor Casey (Member)]: Okay, I'm skipping ahead. We back? Sorry,

[Hillary Chittenden (Office of Legislative Counsel)]: go I believe the bill uses terms more broad than correctional officer. So the bill refers to department and contractors and volunteers. So I think the bill's direction uses nouns broad enough to cover anyone at DOC, but you can certainly hear testimony on that. Always like a leading question.

[Alice M. Emmons (Chair)]: Thanks, Hillary. Great. I will flag that for further committee discussion. Spokes are pretty clear what direction they wanna go in now. Question is, do we define some of these terms in statute or leave it up to DOC with their policy and have policy determinant? Josh, could you identify? Just

[Josh (Department of Corrections official)]: to answer your question, no definitions for all these terms in the policy except for honorific, because we use plain language or any of and we don't have the definition for gender pronouns. But all the other terms we have defined in policy.

[John Murad (Commissioner, Vermont Department of Corrections)]: They're defined some of them are defined in the text of the policy as opposed to in the definition section. The definition section, I think, only includes two of the things that are in the definition section that you are advocating for there.

[Hillary Chittenden (Office of Legislative Counsel)]: Just to be clear, not that I'm advocating for, but that are in

[Alice M. Emmons (Chair)]: the bill. Apologies. But yes. Brian?

[Brian Minier (Member)]: Okay, sorry. Thought there was a couple.

[Conor Casey (Member)]: Yeah, I'm

[Brian Minier (Member)]: just I guess I'm asking you, Chair, to say what we're talking about right now, because I can talk more about definitions, and I think they're useful to me in terms of when people look at what we're doing, what are we talking about, how are we talking about it, and why? And for me, for instance, a term like gender diverse was useful because it gave me a new way of talking about something where I could have only used slang before. But are we talking about that right now? Are we talking about that another time?

[Alice M. Emmons (Chair)]: Well, we're talking about gender diverse definition, but we're also talking about, I think, in general, what the commissioner has said, that they would rather us not define these terms in statute and leave it to their definitions in policy. That's what the commissioner has mentioned.

[Brian Minier (Member)]: Yes. It's not specific instance I'm advocating for using the definition.

[Alice M. Emmons (Chair)]: Because there's only two these definitions have The additional definitions that have come in here, which are gender diverse, gender identity, except for gender identity, because in statute, we already have a definition for that. So this bill refers to the current definition. Healthcare practitioner, there is a specific definition for healthcare practitioner within the medical world. Intercepts is new, and sexual orientation has a definition elsewhere in statute, and transgender is new. But they, in our definition set that Hillary has added for those items, those terms, she has picked up the definition that is currently in DOC's policy to be relayed into statute.

[Brian Minier (Member)]: Yeah. I think there's value there. I mean, can go back and clean up statute eventually if he or she goes passe and we're gonna put in something else in its place. This has value right now.

[Alice M. Emmons (Chair)]: Right. So the question is, do we keep those definitions in statute Or do we not have those definitions in statute? And they would only be in DOC's policy. I'm going

[Gina Galfetti (Member)]: for statute.

[Troy Headrick (Ranking Member)]: Troy? Yeah. I'm with Brian on this. For me, it's an organizational thing. So when I'm in the statute and I'm reading the statute, I want to know what the statute is talking about. And that's what we use definitions for. I can certainly appreciate the commissioner's point. But the policies versus the statutes serve two different purposes. Sometimes they merge. There's a Venn diagram here. But sometimes they ride solo. And when they ride solo, I would know that this is where people are finding and to your point in the courts, they're going to look. If we ever find this statute in the courts, they're going to look. What are we talking about here? And it's very easy to find. So I'm also advocating for keeping it in.

[Alice M. Emmons (Chair)]: Are there other folks who want to weigh in?

[Josh (Department of Corrections official)]: Keep it in.

[Alice M. Emmons (Chair)]: Keep it in. Other folks

[Troy Headrick (Ranking Member)]: to Are put

[Alice M. Emmons (Chair)]: we comfortable with keeping these definitions in statute? Yep. I don't hear anything.

[Joseph "Joe" Luneau (Member)]: I'm listening to

[Troy Headrick (Ranking Member)]: the entire read through.

[Unidentified Committee Member]: Just wanted to listen to it.

[Alice M. Emmons (Chair)]: Sorry, can we hear Now we're on page. The little piece of swagger. So why don't you keep going, Lauren? Passing forward.

[Hillary Chittenden (Office of Legislative Counsel)]: So section two, general definitions. Section three starts at the bottom of page four. I'm just going to case of water. Thanks. And the real substance starts on page five. Section three would add a new section to Title 28 entitled Gender Identification and Nondiscrimination.

[John Murad (Commissioner, Vermont Department of Corrections)]: Down

[Unidentified Committee Member]: there. Sorry, where's this again?

[Hillary Chittenden (Office of Legislative Counsel)]: Yeah, we're now on the top of page five.

[Joseph "Joe" Luneau (Member)]: Page five, section three, line 15.

[Alice M. Emmons (Chair)]: Not just the very top of facial expressions.

[Josh (Department of Corrections official)]: At the

[Joseph "Joe" Luneau (Member)]: very top.

[Hillary Chittenden (Office of Legislative Counsel)]: I'm Bill section as opposed to subdivision.

[Joseph "Joe" Luneau (Member)]: I see. Not

[Hillary Chittenden (Office of Legislative Counsel)]: ideal to have the page break there. So this part of Title 28, this subchapter is on general department topics. And because the provisions of this section are intended to apply to anything that the department does, that's why this new section is located there. It'll be a new section. So this section covers two parts of the bill as introduced, but this is just a new location. And then there are some modifications, which I'll point out as we go through. But this section includes from the bill as introduced, gender identification and address and non discrimination. So starting on line two of page five, we have subsection A, gender identification and address. The department shall ensure that each individual is addressed in a manner consistent with the individual's gender identity. During the initial intake process and in as private a setting as possible, the department shall ask each individual to specify the following. The individual's gender identity of female, male, transgender, gender diverse, or intersex. B, the individual's gender pronoun and honorific. And c, the individual's views as to the gender of staff who may perform a lawful search.

[Alice M. Emmons (Chair)]: The individual's views as to the gender of staff who may perform. What do you mean by offend individuals' So

[Hillary Chittenden (Office of Legislative Counsel)]: the bill, as introduced, used the word preference. There was some discussion by the subcommittee that preference suggested it was not a sincerely held view of the person's safety or health. So this draft uses the word view instead of perspective. There might be a better word than view to capture the committee's intent. But this was previously perspective, was changed for that reason. And if the committee is interested in a different word to capture there, I'm happy to come up with some more options to offer. Think perspective might be fine to really get progress. At practice. Practice is the problem. Perspective. So perspective is

[Alice M. Emmons (Chair)]: an option.

[Gina Galfetti (Member)]: Perspective, I think, would work fine.

[Unidentified Committee Member]: I'll also throw out another suggestion. Sure. But I don't know why, but the word request for me sounds a little more concrete, because I think if we're talking about who may perform a lawful search, I think we're trying to factor in the individual's request essentially for what they want, and then based on DOC staff, be able to fulfill that request. But perspective might be better. I just don't It just seems a little too abstract, but that's just Commissioner?

[John Murad (Commissioner, Vermont Department of Corrections)]: I'd just like to reiterate my concern that this is a policy. I'm grateful that this is expressed in this way because it is our current policy or it's very, very close. It's not word for word, but this is a step by step description of what is done when a person is brought into our custody. I don't believe there's any other statute in Vermont that, for example, describes what an officer does when a police officer stops a car and the steps that that officer has to take when he does he or she stops a car or when a police officer does these same things to a person in the police officer's custody at a police station. And the reason is that this level of specificity is policy. And to go through a policy and work on policy is really important, but in general, statute is much broader and says that something along the lines of shall be respectful during these efforts, as opposed to delineating step by step how the efforts are undertaken.

[Alice M. Emmons (Chair)]: That may be where some of the rub is, because we know some of it may be in policy, but maybe some of it we wanna codify, because we're dealing with some delicate issues here. And we do codify the process in terms of folks who are coming in for medical evaluation, mental health evaluation. And when we've codified some of that, we have testimony, how does DOC do it? And we codified it. So this is not new, how we've done this in the past. Troy?

[Troy Headrick (Ranking Member)]: Yeah, two things. I'm going to be pretty deliberate about differentiating this process from a traffic stop. We are taking these people into custody. And they are under our jurisdiction in ways that are different categorically from a traffic stop. Also, I do think and it's the point I made before that it is important to your point, Cher, that we codify this. One of the reasons we're here is because we've heard testimony that policy is not necessarily consistently enforced, which is why we thought why I thought it might be important to introduce a bill that modifies this. I think that's incredibly important right now based on some of the testimony we've heard. So I'm glad that the statute, as we're writing this, closely aligns with DOC, current policy that makes me happy. I'm incredibly grateful for how DOC was in the room with us as we did a lot of work on this. And it felt incredibly collaborative. So I don't want to pivot away from that collaboration. That helps.

[Joseph "Joe" Luneau (Member)]: I

[John Murad (Commissioner, Vermont Department of Corrections)]: guess I got a question for you, John. So when you say that you don't want it, you think it should be policy and not in statute. Where do you see that? What's the problem with that? Chance. What's the big, what's the scene? Is it overreach? Like, are you having, what's, I guess, if you can explain that, that'd be helpful to me. Well, I think that a component of it is, I am both surprised and even a little bit shocked and not proud of the fact that EOC's previous gender identification policy dates to 2015 under then Commissioner Pulido. And it took us eleven plus years to draft the new one that was promulgated on the February 22 and goes into effect on Friday. And I think that that is a problem. And I wish that that weren't the case, but that is not the case because of the difficulty in doing it. That is the case because of inertia inside the department and the intervention terrible scandal and also of a huge global pandemic. We can fix these things more quickly, and we can pivot more rapidly when either facts intervene or new ways of thinking intervene, or when we come up with different understandings about how to handle these kinds of incidents or any of these kinds of procedures, because these are procedural as opposed to the statutory guidelines that in general show themselves. And I hear clearly, Chair, that this has been done with other issues and matters, and perhaps I am not as familiar with those, and I beg your pardon for that. But in general, if we were to need to fix something in a directive, we can do that via memo almost immediately and via directive within a week or a couple or a month, you know, on the basis of a month. I don't believe statute is amendable at that rate.

[Alice M. Emmons (Chair)]: I was going go to Josh first.

[Josh (Department of Corrections official)]: Oh I'm sorry,

[Troy Headrick (Ranking Member)]: that's helpful, thank you.

[Josh (Department of Corrections official)]: I have a more granular point than I think the larger Commissioner is making. I should have mentioned we discovered this in review earlier today. Looking specifically at one C and that language follows over to the other cases, it doesn't limit that

[Alice M. Emmons (Chair)]: Are you on line 10?

[Josh (Department of Corrections official)]: Yes, I'm sorry. Line ten and eleven, it doesn't limit that to only individuals who are transgender, gender diverse intersex. So the way that, and I think the intent was that it would be that population. The way it reads right now is everybody coming into our custody, even cisgender folks, would get to work class what gender they want to search on. And I don't think that is where don't think that we want to go. I suspect that it's not where the committee wants.

[Alice M. Emmons (Chair)]: It's not our intent.

[John Murad (Commissioner, Vermont Department of Corrections)]: Certainly not our intent. Thank you, Madam Chair. That issue does repeat in a number of different places in this that we haven't gotten to yet. I didn't want to get ahead of it. But for example, you know, in five me, in B1 underneath this on that is line seven on the following page, page six, the anatomy including the genitalia or other physical characteristics of the individual for the vast, for all 13 of the people in our custody, we do use that as a rationale for where we have sleep.

[Alice M. Emmons (Chair)]: But before we get to that point, let's deal just with A1 first before we get to that point. We need clarity on line 10. I'm sorry, Alice. What page are we?

[Troy Headrick (Ranking Member)]: Back on five.

[Alice M. Emmons (Chair)]: Page 10.

[Josh (Department of Corrections official)]: It's

[Alice M. Emmons (Chair)]: for every person.

[Gina Galfetti (Member)]: Is she excluding cisgendered individuals at the end of say?

[Hillary Chittenden (Office of Legislative Counsel)]: I will probably suggest something slightly different, but happy to modify the language there.

[Alice M. Emmons (Chair)]: Joe?

[Joseph "Joe" Luneau (Member)]: Well, I think the commissioner might have touched on some of it. But I would concur that anytime that we become very prescriptive in statute, that that's less flexible than policy modifications. And, I mean, inevitably, whatever's here, you're gonna have social mores change. And so it'll have to be revisited by by by future legislators. So to that extent, you know, there there there are some things that may be, in practice, better left in policy than made statutory, I I I think. And that's just a general statement. I'm not I'm not picking on any individual pieces.

[Alice M. Emmons (Chair)]: So with having some of this in statute versus policy, statute can always change as policy changes and vice versa. Policy changes as statutes change. If within the corrections world there is this policy and it's not being carried out appropriately by staff. One statute gives more backup to DOC to work with staff on this than just having it as an internal directive for policies. By having it in statute, it gives DOC more backup. Put that out on the table for

[Joseph "Joe" Luneau (Member)]: I think that's valid too, but I think the the the offset for that or the the price that it's paid is that if if if something in statute becomes functionally obsolete, it it it's not as fluid. It's it's not as fluid to to modify. You can't have it both ways. And so I think there's a balance there, which is, you know, if it's a perspective, I'm gonna look at the balance of this read through.

[Conor Casey (Member)]: You you could be nimble changing policy, but you can also be very nimble undoing policy completely with a change of administration, who has an ideological plant who says, I don't believe gender is anything but a binary construct. I want to undo all of this right now. And because it's a policy, it's not a rule which goes through LCAR. It's unilateral. So, if the legislature has some skin in the game on this, they should express it in legislation.

[Joseph "Joe" Luneau (Member)]: I agree with that to an extent.

[Alice M. Emmons (Chair)]: I guess it's a comment. I'm really, really hung up on page two, and I'll explain why. And it seems like we've given up on solving the problem that we just accept higher risk for abuse, harassment and violence. Therefore, we're gonna go through all this detailed policy because we've given up on fixing the problem which says there is still abuse, harassment and violence. We should fix that

[John Murad (Commissioner, Vermont Department of Corrections)]: rather than prescribing how we're gonna deal with the

[Alice M. Emmons (Chair)]: You can't fix that.

[Brian Minier (Member)]: This is our time to mitigate that. I mean, can't expect people

[Alice M. Emmons (Chair)]: to Okay, I'll stop saying it. Is the tail wagging the dog. Let's continue where we were on page five, section 129. So we propose lines ten and eleven to be very clear. We're not dealing with everyone coming into the being able to request or have their own perspective in terms of who could do a search. Anything else with a one? Let's go to two.

[Hillary Chittenden (Office of Legislative Counsel)]: So the next draft will reflect that, and it sounds like there will be other places that that kind of edit is warranted. So we'll note that as we keep moving through. On line 12 on page five, an individual shall not be disciplined for refusing to answer or for not disclosing complete information in response to the questions pursuant to subdivision one of this subsection. That That was in the bill as introduced and carried over without any or much change to this draft. On line three, so sections one. Well, really section one is at the initial intake process. Section two says someone will not be disciplined for not responding, giving an incomplete response. Three is at any time after intake, an individual may inform designated facility staff of the individual's gender identity, and designated facility staff shall promptly repeat the process described in subdivision one of this subsection.

[Alice M. Emmons (Chair)]: So I have a question of this one here, and I'm going to ask the commissioner this. And commissioner, I already asked you this question earlier. We have folks who come in through the federal marshals system, and they are federal folks that would be going through the federal court system. So if during the process they come in, and particularly in number three, they're they're in a federal marshal bed, and if at any time after the intake, they would inform facility staff of their gender identity, Would you be limited to federal requirements, or is state requirements the ones that make precedence?

[John Murad (Commissioner, Vermont Department of Corrections)]: We operate under of Vermont, Department of Corrections. And so I take to heart Conor's concern around what happens when administration changes. The Federal Bureau of Prisons has chosen no longer to recognize anything but two sexes. And that is problematic. That completely is not Vermont's stance, and if a person were to come into our custody owing to a federal container, they're being brought in because they're going to be in federal court in Burlington, and if they are brought to Northwest and that person says, I am a woman, I identify as a woman, and I don't meet any of the other standards for what we would say perhaps would keep an individual at a male facility instead meets all the standards that we would say, No, we're gonna relocate you. We would relocate that person. We would put that person at CRCF, And if the federal government said, this is a man, why are you putting them there? We'd say then don't keep that person with us. These are our rules and how we operate. I do want to note that the, I think that is a very strong argument for having certain kinds of definitions codified in law around what Vermont believes about, you know, what constitutes, for example, a hate crime in Vermont. There are different parts of that categorization than there are in other states. Not every state includes members of the military as a protected category under hate crime, and Vermont does. I think the issue for me is the granularity of the process that gets outlined in this, but not the notion of saying these are Vermont values, this is what we believe, and we do want to engrave it in the stone that is the green book, so that it can't be easily changed.

[Alice M. Emmons (Chair)]: So if there was a federal person, a person in a federal bed, And then a year later, they were still there and came to DOC and said, My identity is changing. I am really not male. I feel more a woman. You would be providing services to them as you would a Vermont incarcerated person.

[John Murad (Commissioner, Vermont Department of Corrections)]: We treat every person in our custody the same, irrespective of where they come from. And that's not

[Josh (Department of Corrections official)]: strictly hypothetical. We've had circumstances where we apply our standards to folks in our custody of that land.

[Alice M. Emmons (Chair)]: That was a concern that some members had raised, so I wanted to be very clear about that. Okay.

[Hillary Chittenden (Office of Legislative Counsel)]: All right, on page five, line 19, subdivision four. Again, this is from the bill as introduced. In all verbal and written communications that involve the use of the individual's pronoun and honorific, department staff, contractors, and volunteers shall not consistently fail to use the gender pronoun and honorific an individual has specified. So Representative Casey is sadly missing for part of the answer to his

[Josh (Department of Corrections official)]: main

[Hillary Chittenden (Office of Legislative Counsel)]: question. But this uses department staff, contractors, and volunteers, so more expansive than correctional officer. But if there's testimony or the committee has concerns about whether that is the right way to capture the group of people that this is intended to cover, that's something that could be addressed in another draft.

[John Murad (Commissioner, Vermont Department of Corrections)]: Sure. This is in April. This is in the policy section, the very opening of four thirty two, where we make it clear this exact same thing. And therefore I am supportive of it. I do want to point out that a sister department in, or a sibling department in AHS recently ran into an issue that could show itself here. Among our volunteers are members of clergy. And if those members of clergy come and are providing for us a service that meets a significant need, We have very few imams. In fact, I don't think we've got a single imam that comes to our facilities right now, and we would like that to happen. But if that person came and said, my interpretation of scripture does not permit me to participate in this way, are we going to deny that person that ability? DCF did something similar with regard to foster parenting. I don't know that it would be defensible. That said, as I already pointed out, it is a policy that I signed on February 22 and have propagated that you're putting out there. But I do want to point that out.

[Hillary Chittenden (Office of Legislative Counsel)]: If volunteers included members of clergy or otherwise, and that's useful to considering potential implications of this section. There are some federal laws that protect someone's sincerely held religious beliefs. That could be a First Amendment issue. I'm only somewhat familiar with the DCF scenario, but it did raise some of these concerns. I think the question here would be whether there is a penalty for the prohibition. There isn't one in the statute, which I think would be hard to challenge. But it is certainly an important point with legal implications that the commissioner is raising. And I'm happy to speak in a little bit more detail about this when I next come before the committee. I can look at that further. But it would raise some legal concerns.

[Alice M. Emmons (Chair)]: You have this right now, Commissioner, in your policy, right?

[John Murad (Commissioner, Vermont Department of Corrections)]: That is correct.

[Alice M. Emmons (Chair)]: So what would happen right now if someone did come in, particularly clergy, and said, I can't abide by this? What would you do right now?

[John Murad (Commissioner, Vermont Department of Corrections)]: We would have a can of worms that we'd have to figure out. For the time being, we would probably say that's not compatible with our departmental policies.

[Troy Headrick (Ranking Member)]: There's no current scenario where I'm going to rephrase that. I'm assuming that is not is there any current scenario where I know what my question is. I don't know how

[Josh (Department of Corrections official)]: to get it out.

[Troy Headrick (Ranking Member)]: Right. Are those all volunteers?

[Josh (Department of Corrections official)]: Yes. Spoke to all volunteers, yeah.

[John Murad (Commissioner, Vermont Department of Corrections)]: Yeah. And so the same as similarly with people who come in to do AA.

[Troy Headrick (Ranking Member)]: Yeah. So what happens when other volunteers are not compatible with any sort of POC policy? You probably don't continue that volunteer relationship, yeah?

[John Murad (Commissioner, Vermont Department of Corrections)]: In all likelihood, that's true. But it depends on what the policy I mean, for example, if it's their demand to violate our security protocols by bringing in their own cell phone device, then we simply say that's you know, here we go. And they don't have any kind of rights issued to that cell phone in our facility. They do have a right to believe what they believe also to express themselves in certain ways.

[Troy Headrick (Ranking Member)]: But they don't have a right to necessarily do that within your building?

[John Murad (Commissioner, Vermont Department of Corrections)]: That would be an open question. And I'm merely, as I said, we've put this out and signed it. I'm merely fighting. And I'm finding it too, there's a difference in statute and in policy for something like that.

[Troy Headrick (Ranking Member)]: Chair, can I go on that one? Mhmm.

[Brian Minier (Member)]: Is there a similar intersection? Is there a similar conflict for any employee who holds those beliefs also?

[John Murad (Commissioner, Vermont Department of Corrections)]: That is not a bridge we have had to cross around if if if an employee insisted, I don't know what would happen with that.

[Brian Minier (Member)]: That's that's the same issue as the volunteers.

[Alice M. Emmons (Chair)]: Slightly different. They have a contract. They have a labor contract.

[Hillary Chittenden (Office of Legislative Counsel)]: And government employees have limited First Amendment rights. I can give more detail about what that means. But you can, if you are a government employee acting in your official capacity, your First Amendment rights are not exactly the same as someone on a street. So that's not a definitive answer to the question. But it's that they're differently positioned for

[Alice M. Emmons (Chair)]: There could be situations where a correctional officer can be verbally abusive to an inmate. And they could be put on leave, or they could be terminated at some point. Those things have happened over time. That's in the general operation of DOC. They could act in very disrespectful ways to any inmate. And then it would be up to that facility, know, supervisor of that facility to figure out what to do. They could be on leave and then an investigation, and then they could be reinstated or they could be terminated.

[John Murad (Commissioner, Vermont Department of Corrections)]: Both have happened. We absolutely terminate people who are disrespectful to those in our custody.

[Brian Minier (Member)]: Yeah, was gonna say we're drawing the behavior back to a sincerely held religious belief, which is

[Troy Headrick (Ranking Member)]: where we started with the volunteers.

[Alice M. Emmons (Chair)]: But in this particular, I go back to what Hillary was saying, is that there is no penalty if there's continued, I don't want say violation, but if a person continually fails to use gender pronoun, etcetera. There's no penalty that's laid out, like you're going to lose your job.

[Troy Headrick (Ranking Member)]: That to me does seem like it fits within policy. Restate the parameters, the C determines the remedy for violation of those

[Alice M. Emmons (Chair)]: So the policy is they would not consistently that they don't or it's tough for me today, that there isn't the consistent failure of using the correct pronouns. That the policy would then determine what the ramifications of that. Because we're not laying that in statute what the ramifications I of that

[Hillary Chittenden (Office of Legislative Counsel)]: think one thing I'll offer, and maybe this is useful for the committee in thinking generally about what it might look like to put a principle in statute versus to have something procedural or policy. On page five, lines two through four, that principle hovers lines 19 onto the next page to two of policy. So it's a principle that the department shall ensure each individual is addressed in a manner consistent with the individual's gender identity. That encompasses department staff, contractors, volunteers shall not consistently fail to use the appropriate pronouns or honorific. So just context for the committee to consider in hearing about some of the differences between what it would look like to put a principle in statute, what it looks like to put procedure or something more policy oriented in statute. I think a number of folks have generated some of the considerations and trade offs in doing any one of those things. And those are ultimately not to use overwork overuse the word policy, but ultimately, that is a question and policy question for the committee to decide. And I can offer language to meet any of those requests. Any other questions about section I guess we still have one more. On page six, subdivision five, the department shall ensure department staff, contractors and volunteers receive trauma informed and gender responsive training. And that is the end of the gender identification and address subsection A. So any questions there before we move

[Alice M. Emmons (Chair)]: on to Trauma informed, is that the we use that term a tremendous amount. Trauma informed, we use that when we're looking at replacing the women's facility or any practice anywhere else? So is that interpreted just within the gender identity bill, or is it interpreted trauma informed across the system?

[Hillary Chittenden (Office of Legislative Counsel)]: Think it's an excellent point. If the intent is here to refer only to gender identity trauma informed training, I think the bill could further specify.

[Alice M. Emmons (Chair)]: Putting that out because because we use the term trauma informed all over the place. Even when we did the renovations at the booking up in St. Albans, we talked about it being trauma informed. When we looked at the redesign of the women's facility, trauma informed. So we've been using that term. I don't even know if we have a definition of it. We might have a different definition. I think we do have a definition of it. Because there was a member, former member of this committee that was pretty adamant that we could find it when we were looking at the women's facility. So there is a definition out there in statute.

[Hillary Chittenden (Office of Legislative Counsel)]: I'll double check. This was a later ad, and I admit I did not check the definition of trauma informed. We're

[Alice M. Emmons (Chair)]: just looking at trauma informed based on a person's gender identity? I don't think we need that. The trauma informed?

[Gina Galfetti (Member)]: I don't think you could mix the trauma informed to the and and just put the gender responsive training.

[Hillary Chittenden (Office of Legislative Counsel)]: That was something that May's intent was just to capture gender responsive edit. I'll make exactly as you said. Think

[Alice M. Emmons (Chair)]: that you be getting trauma

[Gina Galfetti (Member)]: informed education and any other

[Josh (Department of Corrections official)]: Conformance letter and the word aunt crossed out.

[Alice M. Emmons (Chair)]: Made the bill shorter.

[Hillary Chittenden (Office of Legislative Counsel)]: Next. All right. On page six, line five, subsection B, non discrimination. This principle was in the bill as introduced, but I'll flag one of the changes that we made in response to committee request and discussion. So on line five, the department shall not overrule an individual's search, classification, housing, or programming placement views based on, one, the anatomy, including the genitalia or other physical characteristics of the individual, or two, any other discriminatory reason, meaning based on any legally protected category. So here, I understand this clarity may come from clarifying earlier that the only individuals whose views perspective requests will be gender diverse, intersex, or transgender folks. But I understand that this section should be clear that it is referring to transgender, intersex, and gender diverse individuals. Change that was made from I guess two changes that were made, I believe, from the bill as introduced. The bill has introduced you some language about a factor present at Actually, that might be later. Strike that. One question was discriminatory reason. The bill as introduced did not include any suggestion So of what that this draft adds explanation that any other discriminatory reason means based on a legally protected category under existing law. Any questions about subsection B or comments? Comments, questions about subsection B before we move forward?

[John Murad (Commissioner, Vermont Department of Corrections)]: I just would like to point out that even beyond the notion of whether we're speaking only of persons who are transgender versus the other people in our custody. There are protected classes and categories that we would use to determine somebody's placement, including mental health, including physical disability. And those are protected categories, they would. For example, Southern has has better medical capacity, and therefore if somebody evicts these characteristics, which are protected classes, we would say, you cannot be here, we're gonna put you here. And that would go for a person who, that might be a factor in a person who is transgender as well. I mean, that would be the totality of circumstance for that individual, irrespective of whether they're transgender or not. So I would caution that second clause.

[Alice M. Emmons (Chair)]: I even wonder, it's the department that is determining, the department shall not overrule an individual's search classification, housing, or program placements. The department is the one who makes the decisions in terms of where a PROPEL person is classified, where they're housed, and some of the programming placement, correct?

[Hillary Chittenden (Office of Legislative Counsel)]: I think that question may be answered when we look at what the bill this section is in conversation with what the bill sets up for how individuals express their perspective of request and then what the department does in responding to it. The department does have the final decision. This section just uses the language of the department overruling what an individual has requested.

[Alice M. Emmons (Chair)]: And

[Hillary Chittenden (Office of Legislative Counsel)]: again, overruled would be a different verb, but it might be easier to understand what changes the committee wants to make once we talk through the bill sections for search and classification.

[Alice M. Emmons (Chair)]: So what about a situation where you have a male who really wants to get into that woman's facility for a variety of reasons, and will come forward and say that I'm in the process of transgendering and asking to be in the facility. Does this mean the department cannot overrule what that person is asking for for housing? I don't know. I mean, I'm just reading this and trying to interpret.

[Troy Headrick (Ranking Member)]: So overrule is the important word here, right? So let's say that in your scenario that a male presenting inmate is attempting to seek housing in our female facility. And the department is wary of that request. There are ways that we can overrule that request, and they're going to show up here soon. We just can't say, because you look like a man, I'm overruling this. That's what this section is saying. There are still ways to overrule it. And there is the rebuttable presumption that we're going to get into. But we can't use anatomy only for ruling. So I don't know if we want to say solely somewhere in here, or I don't know. But to me, I'm not so worried. I can appreciate the concern. I think we're going to get there when we proceed.

[Hillary Chittenden (Office of Legislative Counsel)]: I will suggest that. So the bill, as drafted, referred to any other discriminatory reason. This draft suggests defining it based on any legally protected category. I think what the Commissioner just shared suggests that legally protected category might not make sense as a way to define other discriminatory reason. I think Representative Headrick also points out that modifying this to include solely might address the concern. So I would suggest for time, we make a note here that there are some good reasons to come back to revisit this language, but we might be able to resolve that most easily once we look at the next two sections. But it sounds like there might be some changes warranted here, but what makes most sense might be clear. One version I tried with did use the word solely, so that might be it. Section four, this is page six on line 11. So the bill, as introduced, discussed searches at a higher level of generality. This is in some more detail. Our understanding during the subcommittee discussion was that searches occur for people in custody and in other settings. And so this new section in Title 28 on searches is located in early subchapter that covers all of the department's operations. On line 13, the department shall conduct any lawful searches in accordance with this section, including clothed searches, unclothed searches, urinalysis, and body scans. The discussion of the subcommittee was that those are all examples that cover all of the kinds of potential searches. But if further clarity is needed there, changes can be made. Subsection B, the department shall not search or physically examine any individual for the sole purpose of determining the individual's genital status. If the individual's genital status is unknown, it may be determined during conversations with the individual, by reviewing medical records, or if necessary, by learning the information as part of a broader medical examination conducted in private by a healthcare practitioner. With one or two language changes to match Vermont statutory language, this is taken from the federal PREA standards in federal regulations. The subcommittee discussion wanted to include it, given that some of the previous discussion about the search section was wanting to make sure that it was consistent with what Priya says about searches. This section seems very clear. It's very, very clear. I can't take credit because someone drafting federal regulations wrote that. So moving right along. On page seven, subsection C, the department shall consider on an individualized basis whether an individual's views as to the gender of staff who may perform a lawful search would best support the individual's health and safety, and whether a search designation would pose risks to safety or security. I think two of the changes that have previously been discussed are relevant here. One is clarifying that this is with regards to gender diverse, intersex and transgender individuals. And if the committee is replacing the word views with perfective or request, that would also be relevant here. The way that the bill sets up decisions regarding both searches, and you will see later housing placement, is a rebuttable presumption.

[Alice M. Emmons (Chair)]: So this chart may be new to a lot of new folks. Yes. Could you explain, it's a legal term, what rebuttable presumption means? Is a meaning to this.

[Hillary Chittenden (Office of Legislative Counsel)]: A rebuttable presumption is a way of putting a thumb on the scale of a decision. So when someone is considering a decision, if there is a rebuttable presumption, it means that the decision maker assumes that whatever the rebuttable presumption says is the case, but that's not final. If the specific finding to rebut the presumption happens, then you can overrule it. I can tell I'm not explaining this well. I'll You

[Alice M. Emmons (Chair)]: got to look like you can't respect the presumption.

[Hillary Chittenden (Office of Legislative Counsel)]: It's a legal way of setting up a way to make a decision. Maybe that's a better way to put it. You can have a factor test, which is just saying, here are five things to consider. Consider them and make the decision. In contrast to something like that, a rebuttal presumption is a way of saying, if this is true, that's probably the right decision, But it's not the right decision if it is rebutted. And depending on what you say the presumption is, and depending on what you say how it's rebutted, it just structures that decision. Better than my first time, still not great.

[Troy Headrick (Ranking Member)]: I got it first time.

[Brian Minier (Member)]: I mean, it just falsifiable? Is able to be proven?

[Alice M. Emmons (Chair)]: How about an example?

[Hillary Chittenden (Office of Legislative Counsel)]: That's a great question. Give me one moment

[Josh (Department of Corrections official)]: to think of. What kind of standard

[Brian Minier (Member)]: would be applied to regrettable presumptions?

[Joseph "Joe" Luneau (Member)]: Would it be like a civil standard or a criminal standard?

[Hillary Chittenden (Office of Legislative Counsel)]: So it's not an evidentiary standard. It's just a way of structuring a decision. I don't have a good example of one off the top of my head. Should have been prepared with one. But I can bring one when we revisit this next.

[Conor Casey (Member)]: I can give a campaign one since we

[Brian Minier (Member)]: all work in the

[Alice M. Emmons (Chair)]: area. Yeah,

[Conor Casey (Member)]: right. You So know what an independent expenditure campaign is? Like Citizens United, someone putting ads on your behalf, right? They can raise an unlimited amount of money, but they can't talk to you if you're the candidate, right? In the meantime, you're doing your campaign, you're knocking doors, somebody else is doing other ads for you. It's a rebuttable presumption that you didn't coordinate. Right? In some cases there, right? Like if. Yeah, if your campaigns like if they hire a staffer from your campaign on the independent expenditure campaign, you have to prove then that you didn't coordinate. Right? Does that make sense? So it's assumed The burden of proof sort of switches, right? Burden

[Alice M. Emmons (Chair)]: of proof goes on. Okay. Yeah. I think I understood. Thank you.

[John Murad (Commissioner, Vermont Department of Corrections)]: Questioner? I am not an attorney and I certainly would defer both to legislative counsel and for that matter to our general counsel, but in leasing instruction, what we were taught is that the difference is that a rebuttable presumption has to do with clear and convincing evidence as opposed to the preponderance of the evidence. And when it comes down to issues around human resources rules and the dictates of how we deal with employees, we're talking about preponderance of the evidence when we're dealing with issues, which we want. We don't want to have to clear a, for example, beyond a reasonable doubt standard in order to hold an employee accountable. Preponderance of the evidence is what our standard is. I have a concern about using language like this in these contexts, owing to the fact that I do think that it removes flexibility, both with regard to holding staff accountable and to backing staff up when they make choices around the safety and security of a facility, which is articulated in C, but is not rearticulated in C1.

[Hillary Chittenden (Office of Legislative Counsel)]: So there was some subcommittee discussion. There was a suggestion to use a rebuttal presumption as a way of framing how to make this decision. The intent is that an individual can express their perspective or request. And that there's a good faith given to the fact that that might be best for the individual, but the department has the final say. And if they think that or they find that there would be an unreasonable risk to safety and security posed by designating what the individual is requesting, then the department could overrule it. I think the committee is hearing some suggestions that the rebuttable presumption might not be the best way to articulate that. So if the committee gets interested, there are other ways that we can try to capture that intent. The subcommittee certainly didn't discuss wanting to implicate a higher burden of proof. So to the extent that there is concern, that's how it would be interpreted. Some other language would better express that.

[Alice M. Emmons (Chair)]: But a rebuttable presumption is a much lower level of proof. That's the lowest.

[John Murad (Commissioner, Vermont Department of Corrections)]: I would say preponderance of evidence.

[Hillary Chittenden (Office of Legislative Counsel)]: Preponderance of the evidence is lower. So I think the challenge is that a rebuttal presumption, as a general concept, does not necessarily implicate burdens of proof. It sounds like in certain contexts, it does. And if that's not intended here, we can add language to clarify that. So what

[Alice M. Emmons (Chair)]: is our intent on one?

[Troy Headrick (Ranking Member)]: So if I'm arrested and I'm going to be detained for a number of days and I arrive at Northwest and they begin the intake process, which in this case, we're at search right now, right?

[Hillary Chittenden (Office of Legislative Counsel)]: Yes.

[Troy Headrick (Ranking Member)]: And they ask me who wants to be searched. And I say, I'm in the process of transitioning. And DOC says, I don't know. That seems like a safety risk to me. Because I'm requesting that a female officer does the search. And they're not believing me. They're going to presume that based on all the other identifying factors that are in front of them, safety and security dictates that a male identified officer is going to search me, unless I can rebut that presumption. So then I say, here's my history. Here's my transitioning history. This is how long I've been in transition, blah, blah, blah, blah, blah. I'm rebutting the presumption that my preference, or my view, or my perspective is warranted here. DOC has said no. I hear you've made your request that you want a female officer to search you. We're overruling that. I'm going to rebut that overrule, overruling, by giving them all sorts of evidence. I might not have any evidence at the time, and then the presumption may hold. Or I might have my hormone replacement treatment in possession and say, this is the treatment I just took, my HRT. Here is my driver's license. It clearly states on there that I've identified as a woman since 2010. There are ways that I could rebut their overrule. And they could still say, our presumption holds.

[Hillary Chittenden (Office of Legislative Counsel)]: As structured, it's not quite that. So if that is

[Brian Minier (Member)]: already Yeah, correct

[Troy Headrick (Ranking Member)]: me. Yeah, anybody jump in and correct me.

[Alice M. Emmons (Chair)]: As I asked the question. You won't be really getting it. So hang on, shorts.

[Hillary Chittenden (Office of Legislative Counsel)]: As drafted, it means that someone comes in, the department asks them what their views, perspective requests are for the gender of the staff that will search them. As drafted, there is a presumption that that is what is best for the individual's health and safety. And remember the It's department a presumption. That's DOC that makes that presumption. It's a presumption for purposes of DOC's decision making. So DOC is the decision maker here. DOC is getting the information from the individual about their request for perspective on the gender of staff who should be searching them. The department is looking at two factors, essentially. This is C, to make their decision. They're looking at the individual's health and safety, and they're looking at whether the search designation would pose risks to safety or security. So if an individual expresses a request or a perspective, the department presumes that that best supports the individual's health and safety. But the department also has to consider whether that search designation would pose a risk to safety or security generally. And if the department finds that designating the individual's request would pose an unreasonable risk to safety or security, that rebuts the presumption, overrules the presumption. So it's a way of structuring the department's decision making to give weight to what the individual is requesting while specifying what kind of criteria allows the department to overrule what the individual is requesting. And a rebuttal presumption looks like that. It might not be the perfect language to express what I just described. So to the extent we want to clarify, if what I described sounds right, just removing the words rebuttal presumption, we can say that without rebuttal presumption. If there's a concern that rebuttal presumption necessarily implicates a burden of proof, we could specify that it should not. But that is what that is intending to capture.

[Alice M. Emmons (Chair)]: Commissioner? I

[John Murad (Commissioner, Vermont Department of Corrections)]: was just going to say that using percentages can be useful, but it's not entirely accurate when you say beyond reasonable doubt is 99% certainty or probable cause is 51% certainty or preponderance of the evidence is 51%. Rebuttable to me is somewhere in between those two is higher. And what this does as phrased is the opposite of what representative Hendrick said in that it actually puts more burden on the department to disprove than representative Hendrick's narrative in which the individual was for themselves trying to articulate and give a lot of evidence in order to make the case. If, to the extent that percentages are going to be useful, really, we should be talking about sort of thirds, a third about the value of what the individual expresses for the individual's desire. This is who I want to search me. A third about sort of the department, the the safety and security, and a third about other operational issues, including safety of staff. Because one thing that we haven't gotten into, the next piece of this gets into, is the question of what we can or can't compel staff who may have their own trauma around these kinds of issues to do.

[Alice M. Emmons (Chair)]: I was also going to note, sorry, we have DOC's General Counsel Laurie Fisher here

[Laurie Fisher (General Counsel, Vermont DOC)]: as well, and I've seen you like.

[Alice M. Emmons (Chair)]: Anything you wanted to echo, I wanted to make

[Joseph "Joe" Luneau (Member)]: sure it's

[Troy Headrick (Ranking Member)]: for you.

[Laurie Fisher (General Counsel, Vermont DOC)]: I appreciate it really, thank you.

[Alice M. Emmons (Chair)]: Did you identify yourself?

[Laurie Fisher (General Counsel, Vermont DOC)]: Yes, sure. Thank you. Laurie Fisher, General Counsel, Department of Corrections. I just caution putting a shifting burden of proof into something like this, because it's going to, I can all guarantee you, it's going to increase the litigation in relation to the policy that is already litigated at a pretty, receives a lot of judicial scrutiny to begin with. Because if you put in a starting presumption that the department accepts and then the department, and again, I would just, using the word overrule, we would never overrule individuals views. We don't operate that way. We would accommodate the individual reviews or not accommodate. I'm just opposed that, but suggesting that there's a burden of proof that all that is required, we should be accepting what that individual says to us that they desire. And then we employ the proper safety evaluation at that point. But a shifting burden is just more likely than not, we talk about burden of proof, to get us a number of litigation arguing that the department did not overcome the presumption or the department having to prove they did overcome the presumption, as opposed to really litigating what should be litigated as the safety and security of the individual, was that considered? And it was that was the forefront of the decision. So

[Hillary Chittenden (Office of Legislative Counsel)]: there are two options going forward. I think one is to remove the rebuttable presumption language, but otherwise leave how this is phrased. So this would look something like on line five, the department shall credit that an individual's views as to the gender of staff who may perform a lawful search are in the best interests of the individual's health and safety. The department may choose not to accommodate the individual's request if it would pose an unreasonable risk to safety or security. So that's a way to a little bit keep the structure, but remove any suggestion of a burden of proof. A second alternative that the commissioner was describing is to just list the three things that the department can consider in making the decision and not state any kind of order or balance. It would just be the department shall consider the individual's health and safety, whether the designation is risk to safety or security, and there was a suggestion to consider operational concerns. So those are two alternative ways that avoid some of the concerns about using the phrase rebuttable presumption. They do structure the decision differently. So that's a question for the committee about the intent of structuring that decision.

[Alice M. Emmons (Chair)]: So I'm wondering if you could draft both of those proposals so we could see it and compare next time we see the graph and make a decision on that. Does that seem fair? Yes. I think it's really hard to make that decision right now without seeing the language from each version to compare.

[Hillary Chittenden (Office of Legislative Counsel)]: Yes, I'm just making a note. And yes, if the decision point is offer something that is not a rebuttal presumption, I just take that.

[Alice M. Emmons (Chair)]: So I was thinking the same thing as Lori Fisher was thinking. You put in that term regrettable presumption. You've opened up a legal can of worms, is what I was thinking as well. And I didn't know if we wanted to do that or not. Right.

[Brian Minier (Member)]: I'm on the subcommittee. It's not my bill. But to me, the intent of this is to say that what a person puts forward should be seen as believable. And that's sort of like legal counsel's choice of the word to credit there, as in belief. It doesn't have to be the ultimate arbiter, but it should be taken seriously at face value. And I think that's what credit does.

[Alice M. Emmons (Chair)]: But we also have to balance the person coming in and what they want versus the security and safety of that person.

[Brian Minier (Member)]: I believe for the exclusion of

[Josh (Department of Corrections official)]: all them.

[Alice M. Emmons (Chair)]: And the the security and safety of the person doing this search.

[Josh (Department of Corrections official)]: Yep.

[Alice M. Emmons (Chair)]: We're responsible for both.

[Hillary Chittenden (Office of Legislative Counsel)]: Excellent. So I believe I'm back with the committee tomorrow, and I will have versions of language for both of those ways of structuring the decision. That will also apply to housing, as I'll flag in a second. We may not need to discuss that as much if the same concern is present there and we know that I can bring back to different versions for the committee to consider.

[Alice M. Emmons (Chair)]: So we got to keep bugging folks because we're going to get this bill out Friday. We only have a couple more days and we're only about halfway through the bill. So we got to keep plugging.

[Brian Minier (Member)]: Well, what are we shooting for, Cherry? Do we have another obligation later?

[Alice M. Emmons (Chair)]: We have another what?

[Brian Minier (Member)]: Do we not have another obligation later?

[Alice M. Emmons (Chair)]: We do, but it's only 04:30. Cool. We can work to about quarter of 10:00.

[Josh (Department of Corrections official)]: Roughly. Some people talk

[Brian Minier (Member)]: about the case we started fifteen minutes ago.

[Alice M. Emmons (Chair)]: Everyone was warned to work late. Everyone was warned.

[Hillary Chittenden (Office of Legislative Counsel)]: Cut me off whenever. Page seven, line 16. Say

[Troy Headrick (Ranking Member)]: the word. And three

[Josh (Department of Corrections official)]: of the

[Troy Headrick (Ranking Member)]: last nineeleven overrules has been suggested as perhaps not the best word there.

[Hillary Chittenden (Office of Legislative Counsel)]: Yes. So I made a note to change that. On page seven, line 11, subdivision three, so if the department does not accommodate was suggested as more appropriate, the next draft can reflect that. And I think that will apply in a number of places throughout the bill. Next draft will be consistent in using that different language. So if the department does not accommodate an individual's request as to the gender of staff who may perform a lawful search, the department shall, before deciding not to accommodate the individual's request, document and certify in writing a specific and articulable reason the department is unable to accommodate the individual's views sorry, individual's request as to the gender of staff who may perform a lawful search. So this was in the bill as introduced. I'll make those language changes. And if there are further questions about that, I'll be here. I'll Josh?

[Josh (Department of Corrections official)]: And and we went over this a little bit when we were looking at this this morning. Understanding the intent of that, as the person who will sometimes be asked to write this, I'm just going say that's going be a little challenging at times, both the right and for Ms. Fisher to defend in terms of what that reason is because it's our judgment calls and understand Representative Headrick sort of like what he's saying is that we should be telling people bygone, it will be difficult to write then I think if it does get complicated, then it goes into, it's either this is actually how do we defend that and contribute to that.

[Hillary Chittenden (Office of Legislative Counsel)]: Noting that for the committee to consider in whether to include this language and what language to include. Mindful of time. Moving forward, page seven, section sorry, line 16, subsection D. A lawful search may be conducted by facility staff of any gender if exigent circumstances exist, including in an emergent situation when the search of an individual is imperative to the safety and security of any individual or to the operations of a facility.

[Alice M. Emmons (Chair)]: Is there a definition of exigent?

[Hillary Chittenden (Office of Legislative Counsel)]: Plain language meaning? Unusual circumstance or? With, yes, pressing where time is of I the think as drafted, using the language including is another way of giving meaning to what exigent circumstances mean. That if there is a safety or security concern that is pressing, the other restrictions on how to conduct a search do not apply.

[Alice M. Emmons (Chair)]: Commissioner? I would like to just sort

[John Murad (Commissioner, Vermont Department of Corrections)]: of note something that we've been wrestling with as a department, which is that Priya, for example, forbids an exigency would not include not having any female staff on hand. That would not be an exigency according to PREA. And so that is our PREA guideline. But if we have either nobody on staff or if we have female staff, for example, who have experienced, and this has happened, which is why I'm mentioning it, have experienced trauma around, for example, in their own history, have been in situations where strips were conducted and being therefore doing that with other people is problematic and challenging for them. Being able to direct that they do this, that an employee does these things can be a challenge well. And there's a lot to consider here. Again, I pose this as a rationale for why something is as set in stone as statute may not be the right place when we're talking about things that have a lot of gray areas, even when we're creating policy and trying to make certain that we're in keeping with all of our best angels.

[Hillary Chittenden (Office of Legislative Counsel)]: So there, if the committee wants to consider language that is broader than this, that is an option. The alternative is deciding if it's not really possible to craft language that covers all the exigencies that might arise or all the circumstances that might arise. That's one of those things to think about in whether something is best placed in policy or best placed in statute.

[Gina Galfetti (Member)]: Gina? Honestly, I'm finding a lot of the search requirements being policy decisions. I just feel like we're getting very prescriptive about documentation, all of these other facets of it that really aren't necessarily what we were looking to do with the intent of the bills for, just assuring that our evaluation and classification and housing assignments were all correct. It feels like the search stuff isn't necessarily something that was the driving concern behind the legislation, and we may be getting overly prescriptive as long as we can set the parameters that DOC is gonna consider, what is it, line one, section C there, subsection C rather. And then just leave it at that, and maybe even carry it as far as line 10. But the rest of it just seems like,

[John Murad (Commissioner, Vermont Department of Corrections)]: I don't know. I don't know

[Gina Galfetti (Member)]: if we need to make this

[Alice M. Emmons (Chair)]: restrictive. So Commissioner, you have policy based on searches.

[Josh (Department of Corrections official)]: Yes, ma'am.

[Alice M. Emmons (Chair)]: And you have policies based on gender identity searches as well.

[John Murad (Commissioner, Vermont Department of Corrections)]: The gender identity policy refers to the search policy, and the search policy right now is we are promulgating a new one. I'm hopeful that we will be able to do it by the end of this month. We've put the pedal to the metal on it. The new gender identity policy is available online right now and can be seen, but where it talks about searches, says defer to department search policy. The existing search policy does contain a well, actually the existing search policy is old and needs to be updated, which is why we're updating it. But there are memos in existence that do create challenges for us around whether or not we can tell certain staff to conduct searches. And that, you know, we're balancing these two needs, which are the needs that we take very seriously of the people in our custody, and the needs that we also take seriously for the sake of staff wellness and people who we've got in our employ.

[Alice M. Emmons (Chair)]: So I'm wondering if what Gina was saying, we just keep the broad language of c. We wrap language, it'd be somewhere else in the bill, that when the new policy when the policies for the search is developed, proposed new policy, that it is reviewed by the Joint Justice Oversight Committee this summer or fall with the committee making recommendations as to whether it needs to be updated or that needs to be in statute.

[John Murad (Commissioner, Vermont Department of Corrections)]: To the policy? Yeah, would would welcome the opportunity to share the policy with joint justice and review policy.

[Alice M. Emmons (Chair)]: Have them once the policy gets drafted, to have joint justice review that and for them to weigh in with any recommendations going forward. So we've got to remember this is a new commissioner, and this is a new law rule that they're putting into place. So let's give it some timing and joint justice overseeing. Right. So what Gina was saying, just leave the sea. Don't get into the minutiae. See what the policy is and let joint justice weigh in on that and make recommendations whether to accept it or thinking that there may need to be more legislative review. It's putting a thought on the table. Josh?

[Josh (Department of Corrections official)]: I was wondering, are we still able to promulgate our policy? Like we want to try and get our policy out within a month or so. Would it be reviewed with them what we put out and then possibly make it what I don't what I would

[John Murad (Commissioner, Vermont Department of Corrections)]: hate to do we're just gonna fall until next fall. Want to get it Okay, just want to make sure that and

[Josh (Department of Corrections official)]: then Okay, that would make sense.

[Alice M. Emmons (Chair)]: I mean, at that point,

[John Murad (Commissioner, Vermont Department of Corrections)]: have some real life experience about how the intersection of the existing gender identities policy and the soon to be promulgated search policy is actually working in the real world and then have the input and expertise of the committee to say, you need to add this, you need to take this out, you need to shape this, you'll have knowledge about this as well.

[Josh (Department of Corrections official)]: Well, operation that would work really well. Really want to get that. So

[Alice M. Emmons (Chair)]: did you follow that?

[Hillary Chittenden (Office of Legislative Counsel)]: I think I mostly did have one question to clarify.

[Alice M. Emmons (Chair)]: So

[Hillary Chittenden (Office of Legislative Counsel)]: as I understand the suggestion, on page six, line 12, the bill would keep the current subsection A, the current subsection B, and then current subsection C, and then remove subsection D, E, and F, and in Zed Could

[Alice M. Emmons (Chair)]: you also remove well, again, you're going construct

[Hillary Chittenden (Office of Legislative Counsel)]: new language here for one and two. So it could include the new language of C, or the committee could cut it off. So I just want to clarify where the cutoff is. What parts does the committee want to retain in the bill? And at what point are we replacing the more specific policy with the report and review to joint justice? So I heard some cutoff either after C2 or after C, but it sounded like from D forward, that would be replaced by the report to joint justice and review and recommendation by joint justice. So point of clarity. And again, you will see a draft tomorrow and you can further modify. But for tomorrow's draft, is subdivision three staying in or not?

[Troy Headrick (Ranking Member)]: Well, I ask a question. Do you anticipate DOC covering documentation of I'm going to call it overruling right now, policy?

[Josh (Department of Corrections official)]: I think already I think it is in the protocol. It is in the policy, yeah.

[Alice M. Emmons (Chair)]: So you know what we could do, and Gina, I'm not sure when you said we're getting so prescriptive, if you've meant one, two, and three, as well as D and E. Yeah. To get rid of that and just stay with the introductory C. Is that what you were thinking? Yeah.

[Troy Headrick (Ranking Member)]: And then after C, indicate that they're gonna create policy for review

[Alice M. Emmons (Chair)]: this fall. Right. For a joint justice. Yeah. And what what would be helpful, I think, for joint justice, this would be after crossover all of this, the committee could draft a letter, the Joint Justice Committee, indicating these are the concerns we have that we wanna make sure are addressed in their search policy. And we could lay out a couple bullets so that it really helps frame for justice oversight. They haven't looked at any of this. It will help frame their view of what they need to look at. But it's not descriptive. It just is a broad overview of these are our concerns.

[Troy Headrick (Ranking Member)]: So like it gets rid of all the red blood presumptions.

[Alice M. Emmons (Chair)]: So you cut it off. You cut off one, two, and three of c. You cut off d. Right? And you cut off e. And you also cut off

[Gina Galfetti (Member)]: You take it from cut it to line 12 on Yeah.

[Alice M. Emmons (Chair)]: You will make the bill shorter. So you take out, on page seven, you take out from lines five all the way down to 21. And on page eight, you take out lines one all the way to lines 12. And then part of those issues there, we can go back to and incorporate a letter to joint justice. Does that work?

[Hillary Chittenden (Office of Legislative Counsel)]: Excellent. Yes. Here's your reaction for me for tomorrow's draft. I will note that given that this is now much shorter, I will consider whether this should still be a new statutory section. Because my inclination is that this should not be a new statutory section. Whatever works.

[John Murad (Commissioner, Vermont Department of Corrections)]: So

[Alice M. Emmons (Chair)]: Whatever suits you, it works.

[Hillary Chittenden (Office of Legislative Counsel)]: My favorite thing to hear, even though, ultimately, you are the decision makers of all these things. What you both do. Yep. Right. Mindful of the time. Should we keep I guess we've got

[Alice M. Emmons (Chair)]: to keep this one, this section five. There's a concern from DOC on this, also the placement.

[Hillary Chittenden (Office of Legislative Counsel)]: So I will flag that what was just discussed regarding concerns about the rebuttable presumption language and framework, I think if there is still interest in considering housing placement language in the bill, I can still offer tomorrow those two versions of language that are different from a rebuttable presumption for the committee to consider.

[Troy Headrick (Ranking Member)]: With regard to housing.

[Hillary Chittenden (Office of Legislative Counsel)]: With regard to housing. So right now, the housing section does the same thing as searches. Do those two versions for And then mindful of time, the committee will have more time to consider those versions and decide whether one of them works, neither of them works.

[Alice M. Emmons (Chair)]: So section five, I know DOC has some concerns on this one in terms of where it is placed in statute. Okay.

[Troy Headrick (Ranking Member)]: Yes.

[John Murad (Commissioner, Vermont Department of Corrections)]: I mean, to my mind, typical, looking at VSA excuse me 28 VSA seven zero one lowercase b there's seven zero one and it can throw people off but there's seven zero one lowercase b if you look at a and b under it both of them largely have to do with furlough and the ability to the the the emphasis on the commissioner choosing furlough for those who have misdemeanor offenses. It's not about this issue. And furthermore, here too, there's a pretty pronounced issue on the fact that in this new proposed seven zero one v c section, only C2 and C6 refer to transgender people. Everything else, C1 and C3 and C4 and C5, would apply to all any and all inmates. And we would then be required to them any inmate ability to express preference about going out of state, for example, etcetera.

[Hillary Chittenden (Office of Legislative Counsel)]: So 701 is the place in Title 28 where classification is mentioned. One option is to include this language about housing placement at the end of seven zero one. We also considered putting it as its own section. So if DOC, as the inhabitant of Title 28, thinks that the statute makes most sense to place this elsewhere, we can create a new section that would govern this specifically. The language can be amended to further specify that these processes in each of the subdivisions are specific to gender diverse, transgender, and intersex inmates.

[Alice M. Emmons (Chair)]: I think we need to narrow it. We don't want this for every person who's on trust. The question is, do we set it up in a separate section? Correct.

[Hillary Chittenden (Office of Legislative Counsel)]: We have This seven zero one b. It would be seven zero one c, I think. The subcommittee initially thought of doing that for other reasons. But I think that would be the recommendation is to put instead of a subsection c in section seven zero one b, it would be a new

[Alice M. Emmons (Chair)]: section seven zero one. And then they won't have a problem. And also, it won't be

[John Murad (Commissioner, Vermont Department of Corrections)]: it it will it will reduce the likelihood that we think we're talking about all inmates by doing

[Josh (Department of Corrections official)]: that. Correct.

[John Murad (Commissioner, Vermont Department of Corrections)]: Yeah. And

[Alice M. Emmons (Chair)]: then be specific on the language. It's only for the transgender, whatever gender diverse. Difficult

[Josh (Department of Corrections official)]: to say. And seven zero one bp. Yeah.

[John Murad (Commissioner, Vermont Department of Corrections)]: It's already unusual. There there are not that many instances in statute where they decide to drop in a lowercase letter next to the number, but before you get to the parentheticals. It's not a huge difference.

[Hillary Chittenden (Office of Legislative Counsel)]: Yes, it means that there was not a gap in the section, that someone really wanted to put something there. Sometimes the titles are not our best friends in organizing things usefully. But the next draft, Section five, will instead be a new Section seven zero one. There will be two versions of the language as the alternative to using rebuttable presumption. I guess

[Alice M. Emmons (Chair)]: the Clarify that we're not talking about all inmates.

[Hillary Chittenden (Office of Legislative Counsel)]: Yes. That will be part of the draft for tomorrow.

[Alice M. Emmons (Chair)]: So what I'm thinking in terms of time, that looks good. If we have the new language tomorrow, we can focus more on the language than right now.

[Hillary Chittenden (Office of Legislative Counsel)]: Great. There are a couple other pieces in the housing section that are not the same as searches that might be room for discussion or expression of concern there.

[Alice M. Emmons (Chair)]: So let's move to the medical care.

[Hillary Chittenden (Office of Legislative Counsel)]: All right. So we are in page 11, section six. This is line 12. There is a section in title 28 on medical care of inmates, which is why these changes are in that section. So we're amending section eight zero one. And the changes here are aimed at access to gender affirming and appropriate care. So the first new language on page 12, line one. And I had Katie McLennan look at this language since she has worked in this section before. And she made some suggestions to make sure that some of the healthcare language we were using is consistent with what we should use. So on line one, subdivision two, to the extent feasible, the department and its contractors shall ensure the use of a licensed health care provider with cultural competency to administer health care services to all inmates in correctional facilities, including transgender, gender diverse, and intersex inmates. Subdivision three, the department and its contractors shall ensure inmates access to all necessary and appropriate medical care, including mental health care. B, all routine and preventative medical care related to an inmate's sex characteristics. And C, affirming medical care, including mental health care as related to gender dysphoria or gender affirmation. Any questions about those changes before we look at the screening amendments?

[Troy Headrick (Ranking Member)]: One thing we discussed is how we're including mental health care into the language and the likelihood that that will be questioned on the floor, especially by one member who

[Alice M. Emmons (Chair)]: Yeah, right. And we do have a specific section statute about mental health care to folks who are incarcerated. This is really pretty broad. What I'm looking at, three, administer healthcare services to all inmates. We're asking our contractor, their well path right now, to ensure that folks that they hire, they hire with cultural competence. And I don't know if we have enough time to take testimony to really work through this, is my concern. So I think this needs, I don't know, maybe it's simple, but I think it's opening up a big conversation. I think too on lines five through 11, where it says would ensure inmates access to all necessary appropriate medical care, including mental health care, routine preventive medical care related to inmate sex characteristics, and then affirming medical care, including mental health care. I just see this as there's a lot of layers here, and I don't know if we have the time to get into it. Because we've dealt in this committee with medical care being provided to folks who are incarcerated. We've dealt with mental health care. It's very, very complicated. It takes a lot of work. And I just don't know if we have the time to do it justice. That's my concern. Maybe it's simple. Maybe I'm talking with Katie McLean. It was pretty simple, just kind of carried through what we're currently doing. But my initial reaction is there's a lot of layers to this.

[Hillary Chittenden (Office of Legislative Counsel)]: Yeah, I would not suggest that my conferring with Katie extended to saying this is all consistent with practice. It was someone who does health care statutes look to make sure the way we were talking about it was correct. But to the extent that the committee is looking at the schedule and considering the testimony necessary to do this well and thinking that there is not time, absolutely a decision for the committee.

[Alice M. Emmons (Chair)]: And I want to do it right. Some of us have been here when we did the mental health issues, we've done medical care to make sure the screening and assessment when they're in on intake. There's a lot of conversation that needs to happen, and we have not spent any time on this. And we got three more days. Yeah. We want to do it. I think we need to do it. And I'm wondering if this could be done after crossover, and we could find maybe a senate bill that we could put something on.

[John Murad (Commissioner, Vermont Department of Corrections)]: So you separate this out of the bill? You just take this out?

[Josh (Department of Corrections official)]: Yeah. Just vehicle? This was a

[Troy Headrick (Ranking Member)]: significant component.

[Alice M. Emmons (Chair)]: It's very big, and I don't want to lose it. It's medical care of inmates, so it could have a nexus to medical care. Right? It could be any bill that's coming through that's dealing with medical care. Does Senator Lyons and her committee have anything coming out? I don't know what's going on with health care or medical care at all with other committees. I just I don't want us to get caught here. Mean, I'm willing to do it, but we've got three days, folks. Oh, we wanna do it right if we want to do it. It's almost 05:00 the first day, and we haven't finished going through the first draft here. But I can tell you, it takes a lot of testimony.

[Troy Headrick (Ranking Member)]: If you think we can do it on another vehicle, I'm willing to try that. I do know that this was a significant concern presented by the formerly incarcerated inmate who had provided testimony that her mental health or her physical health care especially was substandard for her identity. That's what worries me.

[Alice M. Emmons (Chair)]: And I'm concerned about that. I want to address that. I just want to make sure we do it.

[Conor Casey (Member)]: I'm not seeing any vehicles out of Senate institutions, really, you know?

[Hillary Chittenden (Office of Legislative Counsel)]: We wouldn't

[Alice M. Emmons (Chair)]: be a Senate institution. I'm thinking healthcare.

[Troy Headrick (Ranking Member)]: I'm asking Lori Hutton right now.

[Alice M. Emmons (Chair)]: They may be tied up

[Josh (Department of Corrections official)]: right now.

[John Murad (Commissioner, Vermont Department of Corrections)]: I don't know. She just got back to

[Unidentified Committee Member]: you on something else.

[Hillary Chittenden (Office of Legislative Counsel)]: Should we pause here, or should we touch on PREA?

[Alice M. Emmons (Chair)]: Let's go to PREA real fast. Let's go to section seven.

[Hillary Chittenden (Office of Legislative Counsel)]: So this is page 14, section seven. There was requests from the committee when we previously walked through this bill that there was interest in doing something to codify the federal standards in the Prison Rape Elimination Act, something the committee talked about. So we looked at a couple of sample bills. There was a bill in Connecticut that had some language that the subcommittee thought could be useful. Something to tee up for the committee about considerations in including this in the bill or what to include in the bill. There are two main aspects to what could be involved in codifying PREA. There is the standards themselves, which are in federal regulation. There was a suggestion that there would be value in having state law authorization to have policy matching those standards. DOC has a policy in existence that does this. The suggestion was if there was concern about what is happening at the federal level, would there be value in having an authorization in state law for DOC to have the policy that it already has? The second piece of it is an audit or enforcement or reporting mechanism. The discussion in the subcommittee was that trying to develop and hear appropriate testimony on an audit or enforcement mechanism separate from what Priya does currently would not be feasible in the week before crossover. So that is not included in the draft. What is included in the draft is one example modeled off of the Connecticut bill of what it would look like to have an authorization in state law for DOC to have a policy adopting the PREA standards. Again, DOC has the policy. Current federal law authorizes it. The suggestion behind including it was to have some independent state law authorization. Up to the committee to consider whether doing these in pieces is the right approach. Depending on the urgency of having some state law authorization for the standards, the standards could be a separate piece and that's the approach the bill currently takes. There could also be value in having those pieces move together at some later time. And that really is a decision for the committee. I anticipate that witnesses could have thoughts on the best approach for this. I will say that the PREA regulations are, I think our DOC PREA expert, they took ten years, twelve years to develop. There are a lot of things that go into them. This isn't changing them substantively, but I just mentioned that to highlight it substantial is endeavor to appreciate what's happening there and what it looks like to have a state version of it. Any questions on I just wanted to tee up things for the committee to think about. The request was to offer some approach for what it would look like. The bill has an example of what it would look like to authorize DOC to have the policy attached, something in state law. But there are considerations that the subcommittee wanted to elevate or I'm not speaking out of turn that we wanted to make sure the committee was aware of or could be considering. So any initial questions or comments on the approach before I touch on the two sections of Section seven?

[Alice M. Emmons (Chair)]: Let me go to Josh.

[Josh (Department of Corrections official)]: Gina wasn't able to be here, but I do know when she looked at specifically the reporting function, I think her ask was, please don't make a separate reporting function that is different than the report that we already provide to the Fed and uses slightly different language and time frames for it. So then we're measuring two different things in slightly different ways over different time frames. If we're giving one for the Fed and the intention is for us to keep you guys a copy, that's pretty easy but you make

[John Murad (Commissioner, Vermont Department of Corrections)]: a separate independent, it'll just be a lot of work for us. That would be everything under B essentially.

[Gina Galfetti (Member)]: Yeah, that's what I was gonna say.

[John Murad (Commissioner, Vermont Department of Corrections)]: The note I want to make is that I too am troubled by the Fed's removal of gender identity as something in, you know, their their de emphasis of it. I think that what is being proposed with regard to definitions in statute overcomes that for us And in the sense that it says that irrespective of what PREA does at the federal level, we are still going to have to, a, consider these issues, include these issues when we make determinations, and continue to believe what is manifestly so, which is that there are people who do not adhere to the sexual binary and are in are in our custody, and we have responsibility to care for them compassionately. The absence of that, the removal of that from PREA doesn't mean that we don't continue to have that as our own standard. And affixing PREA to this somewhat arbitrary date of 01/01/2024 could have unintended consequences. It's rare that a progressive minded state affix itself affixes itself to things in the past. That is usually the mode of of a place that wants to somehow hold on to the past. I recognize the world is toxic to me now in ways that we, you know, that are just different. But I would caution about something like that as opposed to taking the 01/01/2024 piece out and saying these are the things that PREA requires and that we at the state level want to ensure you consider and never forget.

[Alice M. Emmons (Chair)]: So those things that we want to ensure, think the subcommittee and DOC, are the standards that are listed in terms of one through 44? Yep. So the standards that you've listed, one through 44, is included in the 01/01/2024 PREA?

[John Murad (Commissioner, Vermont Department of Corrections)]: It's included in the current PREA as well. All of these things are still a component of PREA. The only thing that the federal government has done is say that insofar as issues around gender specific issues aside as opposed to sex identity issues, we're not going to hold you accountable if you are doing them or not doing. So for example, gender, if you look at on page 14, line 15, limits to gender, to different gender viewing instruments, that would still apply for sex. It would for the feds no longer apply for a person who is transgender or is exhibiting or is expressing a different gender identity other than the binary. But we still would adhere to that because that is in our policies and our, I would hope ethos as a department and as a state, and so those things aren't gone from the current version of PREA as of 2026. They are simply being interpreted a little bit different.

[Josh (Department of Corrections official)]: There also I don't think it's been movement to strike sort of the broader the broader PREA standards. I don't think those are going away federally, not that anybody wants to put money on what the federal government's going do right now, but I think the discussion we've heard thus far has been specific to those gender identity clauses, not to prey itself. So there may not be as much of an urgency to codifying in Vermont law other than that gender identity piece, but the rest of it, the structure still seems to be there.

[Alice M. Emmons (Chair)]: For now.

[Josh (Department of Corrections official)]: For now. I

[Alice M. Emmons (Chair)]: think we want to ensure I was going say can we secure that it still stay in? So can we ensure that the language does stay in? That that's our state's policy or wanting to keep So if we

[Hillary Chittenden (Office of Legislative Counsel)]: did that, is it just listing all of these items? How about this? So the reference to 28 CFR Part 115, that is where the specific text of the PREA national standards is located. DOC has that and other things in its policy. I think the question, and perhaps the folks who are here today can just put a finer point on it, DOC has it in policy. If DOC is not going to change their policy, regardless of what is happening on the federal level, then urgently doing something like this may not be as important as opposed to considering at a future date what a state version of PREA would do. I think testimony on the need for doing this and whether this is the right way to do it would be important to understanding that. But I think part of what I just understood was that a change at the federal level would not affect what DOC has in policy, given the recognition elsewhere in the bill of recognizing gender identity in correction facilities. But policy questions for the committee in terms of whether this should be included. So if

[Alice M. Emmons (Chair)]: we didn't do the rest of the bill, then we'd really need the insurance of what it took care of on our level with our policy if we didn't have the rest of the gender

[Hillary Chittenden (Office of Legislative Counsel)]: filing bill. I think that might be a question for DOC in thinking about their policy. Under existing law, would they have a reason to change their policy if there were changes to PREA at The National, other than the current interpretation?

[Alice M. Emmons (Chair)]: So in a way, with our current proposed bill, and by adding a section that really indicates where we stand on PREA and with his belts and suspenders face support going forward. Because we wanna ensure that the PREA piece ensures protection for folks with gender identity, however we want to frame that. But that's what we want to protect within PREA going forward. I think we need the belt suspended. Yeah. I think we I think the committee was feeling that because we just don't know what the future will hold at national level. They could change the whole period. Because I know

[Unidentified Committee Member]: don't know.

[Alice M. Emmons (Chair)]: Right now is presently very much wanting it to see that money. Let's say there's another commissioner down the road, may not. I think we need to have been late for June.

[Josh (Department of Corrections official)]: I'm sure we're gonna hang out a

[John Murad (Commissioner, Vermont Department of Corrections)]: boss. I've tried to. Yeah, mean, I can't imagine such a commissioner surviving very long in Vermont, but I also would note that I think that by encoding the definitions in statute and by including expectations around the strong consideration of a person's identity in conjunction with security, etcetera, then that means that any policy that is written has to adhere to those things. And the existence of PREA in a state law doesn't change that. You could, for example, in policy right now, the existing policy for our PREA that our extant pre up policy dates to 2015, and it talks about it it talks about '28 CFR 115 from 2012. So you can adhere you could fix which PREA it is you're talking about in the policy without also putting it in statute. And and it would have I believe the same effect, but I recognize there's difference on that.

[Alice M. Emmons (Chair)]: So I know it's late, and I want to at least give some direction here to Hillary for the next draft on this.

[Conor Casey (Member)]: Conor? Yeah, do probably just go I totally see what you're saying, Commissioner. For me, it's more like, as I observe the political bullying going on around the country, A governor may be very much in line with how we're thinking there, but there can be threats made to withhold funding in one area. Unless certain promises are made that can be done completely in the executive branch. So to me, this is a way to protect this going forward and maybe set a baseline that the DOC can go above with policymaking. But to make sure this is always included and the legislature has their voice on this, it's just the legislature exercising their own powers, I think, in this case.

[Alice M. Emmons (Chair)]: Heather Fowles? We were supportive of doing this whenever we were here two weeks ago. How would it be structured? Would it be structured like what you've presented?

[Hillary Chittenden (Office of Legislative Counsel)]: Yeah. So this is the option. I think it would be useful to hear from witnesses on the way this is drafted. What this does is essentially say it points to the PREA national standards and says that DOC shall adopt and comply with them, including And it lists the general principle involved in the PREA standards. By general principle, that means 44 of them. This is the way Connecticut drafted it. I think it would be important to hear from witnesses that this captures everything that is intended to be captured. It is pretty lengthy. And I would be curious if it did not capture something in the national standards. But that would be, I think, useful testimony.

[John Murad (Commissioner, Vermont Department of Corrections)]: I think there's an element to the idea that if you state PREA and state, as I said, I don't think it's necessary to state the year, but if you do, you're saying It's not similar to saying we adopt Moby Dick and here's the chapter list, as opposed to saying you adopt Moby Dick. I think the two are the same and the listing out of all the chapters isn't entirely necessary.

[Hillary Chittenden (Office of Legislative Counsel)]: And from a legal perspective, I think that's true. I think to the extent there is interest in being explicit about what this entails in a statement fashion, I think that might be the purpose served by listing them all out. But I think the commissioner is right that from a legal perspective, saying adopt and comply with the national standards with the CFR reference covers all the substance that would be needed to make sure

[Alice M. Emmons (Chair)]: that DOC was authorized to continue to have their policy. So that would mean eliminating one through 44. If we did that, just leave the introductory paragraph Correct.

[Hillary Chittenden (Office of Legislative Counsel)]: We'd remove including, so it would end after facilities on line nine.

[Alice M. Emmons (Chair)]: Subcommittee.

[Conor Casey (Member)]: I'd like to get the network stake at some point, if we could? The network stake, if not, could I have another involved in this?

[Alice M. Emmons (Chair)]: In terms of listing all the standards or not? I mean, what just talked about is keeping in A, but not listing all the one through 44. That's what we're going

[Josh (Department of Corrections official)]: talk about.

[Troy Headrick (Ranking Member)]: And is there a way to articulate this as a baseline, giving the DOC to go above and beyond the baseline that was in existence as of 01/01/2024. And is there a more recent why did we choose 24, not 25 here? Was that the most recent edit?

[Hillary Chittenden (Office of Legislative Counsel)]: No. I think the suggestion or the intent of the candidate bill was to delineate any changes made by the current federal administration in interpretation or otherwise.

[Laurie Fisher (General Counsel, Vermont DOC)]: Will,

[Alice M. Emmons (Chair)]: to the

[Hillary Chittenden (Office of Legislative Counsel)]: point of DOC policy refers back to 2012, I think, A, the committee could hear testimony on whether it's appropriate to pin to any particular version of the national standards. I will confirm from a statutory interpretation perspective, there are sometimes reasons why we If we are cross referencing a federal statute or federal regulations, there are certain conventions for what version of what we're looking to reading it. And I just want to confirm that whatever we end up choosing will be what we intend. But I think you've heard some testimony that there's no magic to pinning it to 2024. My understanding of the intent of the Connecticut bill in doing that was changes made by this administration. And I think you could hear from other witnesses that some other date may or may not make sense.

[John Murad (Commissioner, Vermont Department of Corrections)]: At this time, I do not believe that the administration has changed the language in the standards. It has merely said we are no longer going to pay attention to this verse or that verse. But as is sort of a hallmark of the administration, it's a lot of executive order and not a lot of legislative changes that make the longer term things. So that's I don't think there's a difference. I'm not an expert on the matter on Priya, but I don't believe there's been a change from 01/01/2024 to what is currently written right now.

[Hillary Chittenden (Office of Legislative Counsel)]: And I can confirm there's no CFR change. Think it just encompasses. We're gonna carry out. Otherwise.

[Alice M. Emmons (Chair)]: Yeah. So what I'm hearing from the committee, you do want to address the PREA issue in the bill. It's belts and suspenders in a way, but it also protects us going forward. The question is, do we list all the standards or not? And then Conor put out a thought that the network as the network to come in and testify on some of this language for the pre. Would the network be available at all tomorrow?

[Laurie Fisher (General Counsel, Vermont DOC)]: We can make something work. Yes. It's sitting here at 01:00.

[Alice M. Emmons (Chair)]: Doesn't work.

[Josh (Department of Corrections official)]: So we might have time in the morning as

[Alice M. Emmons (Chair)]: well. Have 08:30 to 10:30 available.

[Laurie Fisher (General Counsel, Vermont DOC)]: I think that should work. Yes.

[Alice M. Emmons (Chair)]: Well, we got you coming in at nine. Could you could we do the network at 08:30 and do you at 09:30? That's fine. Do a flexible. Does that work?

[Laurie Fisher (General Counsel, Vermont DOC)]: Yes, it does. Thank you.

[Alice M. Emmons (Chair)]: Why don't we do that? The network at 08:30 tomorrow to talk about Section seven. And then we've got DOC coming in at 09:30 to talk about the PMP positions.

[Troy Headrick (Ranking Member)]: A question on subsection B of this, so line 20, page 16, does that currently work with Matt? Jim's concerns about not having to double report? Or can you just suggest language that

[Josh (Department of Corrections official)]: She might be able to. If you were to do one through I think it's the language on page 17 that's more problematic.

[Hillary Chittenden (Office of Legislative Counsel)]: So if it ended on page 17, line two sorry, line one after institutions?

[Alice M. Emmons (Chair)]: No, I think it would marked with the entry that's

[Laurie Fisher (General Counsel, Vermont DOC)]: 19 on page 16. Otherwise it gets into report.

[Josh (Department of Corrections official)]: Well, I mean if you want us to give us a give them a copy.

[John Murad (Commissioner, Vermont Department of Corrections)]: Yeah, think

[Alice M. Emmons (Chair)]: of the ideas. If

[John Murad (Commissioner, Vermont Department of Corrections)]: we could come back with our dates for the pre owned report that we are required to submit as an audit to the federal government and ask that this be edited starting in line 20, which may not be line 20 if all of the 44 standards are eliminated, but right now is line 20 and would instead say on or before date where audit is submitted to federal government, and annually thereafter, the current commissioner of corrections shall submit a report to the House Committee on Corrections Institutions and the Senate Committee on Institutes, period. That is where

[Alice M. Emmons (Chair)]: Then eliminate lines three through eleven two through 11 or

[Hillary Chittenden (Office of Legislative Counsel)]: two through two through eleven? Nine, I think, Unless there's a

[Josh (Department of Corrections official)]: separate Well, do you want us to adopt a new rule? Is that what ten and eleven is?

[Alice M. Emmons (Chair)]: Right. Well, the the the conversation then needs to happen. How do you interpret adopt rules? Is it pursuant to LCAR or is it directives and policies? Because DOC interprets rules as directives and policies. So when you say rules, I don't know what the intent was.

[Hillary Chittenden (Office of Legislative Counsel)]: I think the intent was just that DOC policy reflect this.

[Alice M. Emmons (Chair)]: No, ma'am. Then you've got to say policy directives, not rules.

[Josh (Department of Corrections official)]: Unless you're telling us to go to hold it. Right. I wouldn't ask you

[Conor Casey (Member)]: to do.

[Josh (Department of Corrections official)]: No, that's But if you told us, we would.

[Alice M. Emmons (Chair)]: So you wanna keep C. You wanna eliminate the language, page 17, lines two through nine.

[John Murad (Commissioner, Vermont Department of Corrections)]: Keep Yes, Right? Can

[Alice M. Emmons (Chair)]: say adopt policy. Adopt policy, director of support. Yes,

[Hillary Chittenden (Office of Legislative Counsel)]: we could do that. The next draft can reflect that. Quick clarification, will the next draft for now, retain subdivisions one through 44? Or should it remove them knowing there is a version of the draft that contains them?

[Troy Headrick (Ranking Member)]: I would like to see what it looks like without, and then get the network's opinion on whether or not that's sufficient.

[Alice M. Emmons (Chair)]: Do it without. We've got the one through 44 in this draft. We can go back to I think we're done for the day. I think all of us feel a little frightened.

[John Murad (Commissioner, Vermont Department of Corrections)]: Just back in on the first day.

[Hillary Chittenden (Office of Legislative Counsel)]: Your choices do reflect that there will be a shorter bill tomorrow. So say that much to the

[Josh (Department of Corrections official)]: screen. So

[Alice M. Emmons (Chair)]: 08:30 tomorrow morning, folks. The network will be accommodating us. Thank you. We appreciate that. And 09:30, you get a little later to talk about the PMP folks for the expanding the accountability docket. So for people on YouTube, we are done for today, and we'll be back here tomorrow, Wednesday at 08:30. Thank you.