Vermont Legislature SmartTranscripts:

[Peter Conlon (Chair)]: House Education on February 4. Just to book some time here with legislative council to help me with some things that I'm confused about, I figure if I'm a little confused about, then maybe you all could benefit as well. Really kind of the main topic is the intersection of statute and rule, the work of the legislature, the work of the state board, the work of the agency, and then really specific to two topics, class size minimums and sparsity in small schools. And so I'd ask Beth to just kind of join us and help us walk through it. So, for example, we have a class size minimum statute that we created in Act 73 that says things, and then that is also supposed to trigger rulemaking as well. There's some conflicts timing wise that we'll have Ledge Council explain that. But just to get a sense of what does the law say? Where are the rules? When do they come? What's needed from us to move things forward? Does that give you some clarity to start us off with? Think starting off with a basic understanding of what we did, where it lives, and how it is effective correctly. Okay. I have one quick question,

[Robert Hunter (Member)]: We if I have laws and we have rules. We follow the rules. What is the difference between that and something in statute? Can rules be changed without going through the legislature? I think we have a

[Peter Conlon (Chair)]: very good example of that

[Emily Long (Member)]: right now. Oh, it's coming. Alright.

[Beth St. James (Office of Legislative Counsel)]: At St. James, Office of Legislative Counsel. So generally speaking, there's a hierarchy when it comes to our laws. The US Constitution is the supreme law of the land. And we have federal law that, for all intents and purposes, trumps state law, but there's exceptions to that. And then we have our state constitution, and then we have our green books, our statutes. So I'm going in a hierarchy here. And when I say hierarchy, I mean the level above trumps the level below. In most cases. So in most cases. There's exceptions to every rule. Just think that when I say something definitively, that there's an exception out there. So if there's a conflict between the constitution and a statute, the constitution, in most cases, is going to rule that constitution. It's going to win. If there's a conflict between statute and rule, the statute is going to trump the rule. The statute is going to win. And then even below rules, there's things like policies and procedures, which don't carry the full force and effective law in the same way that rules do. And so if there's a conflict there, the rule is going to trump the policy and procedure that didn't go through the APA rulemaking process.

[Peter Conlon (Chair)]: Oh, go ahead.

[Leanne Harple (Member)]: So we have

[Beth Quimby (Member)]: the green books and we also have session law.

[Chris Taylor (Vice Chair)]: Are they basically equal Yes.

[Beth St. James (Office of Legislative Counsel)]: Are exactly the same. That's an excellent point. Session law is law. It has exactly the same effect as everything in your green books. Theoretically, session law is meant to live for a short period of time, so we don't want to fill up the green books. But how many times have we been in here and law talked about that really should have been an amendment to a statute or a brand new statute twenty years ago.

[Robert Hunter (Member)]: But did they arrive from the same place, law and statute?

[Beth St. James (Office of Legislative Counsel)]: Yes, it's all the same. Session law just means it is not making an amendment or creating new law in one of the titles. But we created session. Yes, absolutely. Yes. You That's a great Maybe we should have started there. Separation of powers. You are the lawmaking body. That is your territory. And it is my job to protect your turf. So you can get into philosophical arguments with folks. You can get into policy arguments over giving folks leeway in this way or the other. If I come in and I say, This is your turf, you can make some policy arguments around that, but you are the lawmaking branch, which means only you can make the laws. There are some areas or some instances where you can delegate that authority. Rule making is a really good example. You will hear that rulemaking is an inherently executive branch authority or process. And I agree that rulemaking is carried out by the executive branch, but they only get to do that when you have delegated your lawmaking authority to them and given them parameters within which to make those rules.

[Robert Hunter (Member)]: So we, in essence, gave them permission to make the rules. Correct. And the parameters.

[Beth St. James (Office of Legislative Counsel)]: Correct. There is no inherent in the constitution rulemaking authority for the executive branch. Since rules carry full force and effect of the law and you all hold the supreme lawmaking authority, I would argue that rulemaking is not an inherently executive branch function. It is a duty that you have delegated to the executive branch.

[Peter Conlon (Chair)]: Go ahead, Leanne.

[Leanne Harple (Member)]: So how does that work when, say, the budget and the signing of the budget is tied to rules that we may or may not want to pass?

[Peter Conlon (Chair)]: It's politics. Okay. So that's you know, so a governor who may threaten to hold a budget unless he gets a bill didn't mention that. Right. That's politics. We don't have to we don't have to do it. It it ultimately becomes a game of chicken, Could

[Leanne Harple (Member)]: we then make a rule that Vermont needs to have a budget? So if he wants to sign up

[Chris Taylor (Vice Chair)]: for the sorry, we're hearing

[Peter Conlon (Chair)]: it as well.

[Leanne Harple (Member)]: Okay. So I guess that's

[Chris Taylor (Vice Chair)]: the nature of my question. It seems like there's two

[Beth St. James (Office of Legislative Counsel)]: I don't know how to put my question together.

[Peter Conlon (Chair)]: I think that's your point. Sometimes they can be incomplicable. The actions of the executive can be This is all about the veto power.

[Beth St. James (Office of Legislative Counsel)]: That's right. Yes. Okay. So it lies in the veto. Yes. So can we take away veto power?

[Peter Conlon (Chair)]: So I don't think that No.

[Emily Long (Member)]: It's the constitution. Okay.

[Beth St. James (Office of Legislative Counsel)]: Yes. Alright. And and I am not prepared to speak to everything that's in the constitution I am just talking about rulemaking. Okay. By the wasn't trying to threaten the takeaway.

[Leanne Harple (Member)]: I'm just trying to understand how Of

[Emily Long (Member)]: the procedure. Yeah.

[Beth St. James (Office of Legislative Counsel)]: Yeah. I mean, if we can all remember back to Schoolhouse Rocks, right, how a bill becomes a law, there's a couple of different ways that a bill can become a law. The governor can sign it. The governor can not sign it, take no action, and it becomes law. The governor can veto it, and then you all can override it with whatever the constitution requires for the override. And that's where you get the politics of, I will do this if you do that.

[Emily Long (Member)]: In terms

[Peter Conlon (Chair)]: of the Brown question.

[Jana Brown (Clerk)]: I have a question. Might be jumping ahead, so maybe we'll talk about it. So if the legislature sort of revisits and changes a statute that sort of enables or delegates rulemaking to the executive branch, which sort of team of lawyers goes through and figures out which rules are sort of now not invalid or need to be updated or changed, is that ledge counsel? Is that agency counsel? No one. No one does that.

[Beth St. James (Office of Legislative Counsel)]: That's not a defined role in my office from like an overall standpoint. I think we all try and flag for you all when we are working in a piece of law where there is rulemaking authority, or for example, the education quality standards. You guys worked in the education quality standards last year. And I think I flagged for you, hey, there's a rule series that goes along with this. You should make sure they don't conflict. But we miss those things. You may not care about the rules. There's politics involved in everything you do. And I think different agencies probably have different policies on how they're tracking your actions and then the responses to those actions from a cleanup standpoint or a, you know, making sure things don't conflict standpoint. But there is I'm not aware of any office that is assigned an overall duty to ensure that every set of rules that you have authorized complies with their statutorily enabling law. It's a

[Beth Quimby (Member)]: joint

[Chris Taylor (Vice Chair)]: effort. And just one

[Emily Long (Member)]: other caveat. And that is that while you keep talking about rulemaking with the executive branch and agencies, we can delegate rulemaking elsewhere, which we have at SIGCHOR.

[Beth St. James (Office of Legislative Counsel)]: Oh, yes. Rule making, yes. Yep.

[Emily Long (Member)]: Because that became a topic last year of

[Beth St. James (Office of Legislative Counsel)]: When I say the executive branch, I mean the executive branch on the three legged stool of the separation of powers. Right? There's the legislative branch, which is you guys pretty contained. There's the judicial branch pretty contained. And then the executive branch, depending on who you talk to in the day, includes the administration. Doesn't include the separately elected constitutional officers. It's all the executive branch. Yep. But that's a great point.

[Peter Conlon (Chair)]: Example in here, sometimes we give rulemaking authority to the State Board of Education. Sometimes we give it to the agency

[Emily Long (Member)]: and they're all part

[Robert Hunter (Member)]: of the legislative branch.

[Beth St. James (Office of Legislative Counsel)]: They're all part of the executive branch. Yes. Office of Professional Regulation is an umbrella agency. All of their different professions have different rules. And it's part of the Secretary of State's office. Right? So there's and you see this every different agency or office. So like treasurer's office, Secretary of State's office, attorney general's office are separately elected constitutional officers. There's various other bodies that fall under them that may or may not have been given rulemaking authority by the legislature. If you were to make a change to a statute that then resulted in a rule series that conflicted with that statute, and you don't put in your legislation, either at the time you make the statutory change or sometime after that, please update these rules, it's totally up to the owner of those rules on whether or not they want to reopen those rules and go in and update those rules. So there is no automatic trigger. Generally speaking, there is no automatic trigger for rules to be updated when you change statutes.

[Robert Hunter (Member)]: Good question. For example, I wanna change a fish and wildlife law that's in the green book. The process is just a bill and going through the legislature. Yep. Change. Correct.

[Beth St. James (Office of Legislative Counsel)]: That's the only way to do it. Well, that's the only way to change the law. The judicial branch interprets the laws. And so they can't change what's in the green books, but they can tell you that what's in the green books is not constitutional. And therefore, if cases keep coming to them that an unconstitutional law is being enforced, they're not going to enforce it. But you would have to change the law to comply with the opinion that says that law was unconstitutional And or

[Beth Quimby (Member)]: continuing on with your example, whatever statute you change, there could be rules that the Fish and Wildlife Department or someone else made to go along with that they might have to update.

[Robert Hunter (Member)]: Not necessarily mentioned, you should be aware of and make that change too. Or request that they be updated, right?

[Peter Conlon (Chair)]: So in our world, we had Act 173 that we're talking about a lot lately, our special ed bill, that then went to rule making to the state board. And they chose, because it's their prerogative, to reopen or open the Rule 2,200 series that governs independent schools. You just mentioned the Blue News Board. Explain that a little bit. Well, you've heard it very well, but some agencies or departments still have legacy boards, like the State Board of Education, Fish and Wildlife Board, some don't. And often they're the ones tasked with rulemaking. But we could also pass a law and say that the agency is going to do rulemaking, which we did with district quality standards. So there's no educational quality standards for the state board has done, district quality standards rule making to an agency has done. So there's no specific rules board. It could be who we delegate it to. Once

[Beth St. James (Office of Legislative Counsel)]: you give an executive branch group authority to write rules and to oversee those rules, unless you enact legislation preventing them from updating those rules, which you can because you have delegated the authority to create them in general, they can go in and update them as they see fit. And this happens a lot when you think of industry, rules related to industry, where there are changes in the practice of industry that may not bubble up to needing to change green books or the law, but maybe a bachelor's degree is no longer acceptable in something. And so you need to change the rule on licensure to require a master's degree or something. If that's happening and there's inherent not inherent, you have been given rulemaking authority over those rules, they don't need to come and seek permission from you all to reopen those rules. They have to go through the Administrative Procedures Act process, which terminates with LCAR, which is you But once they have those rules, it's kind of up to them, absent any direction from you, when or if they are updating those rules, which is why I think it's so important to at least consider when you are amending statute or creating session law, and you know that there's a rule series out there that is related and there's a potential for a conflict there, addressing that in your legislation, on your goals, right? It is entirely possible in the universe of possibilities that you want chaos out there. That is a choice you can make, right? In which case you are silent on updating those rules, and there's a giant conflict, and now there's chaos. That's a policy choice. If your policy choice is to make sure that the statute and the rules play nice together, then it would behoove you to think about providing direction in real time about updating those rules to make sure that they align. Maybe you, meaning the collective general assembly, would elicit testimony from the vast majority of agencies out there saying, We do this anyway. You don't need to tell us, we do this. And that's great. But unless there is something in law, there's no requirement to update those rules, which brings us to

[Peter Conlon (Chair)]: Sized envelopes.

[Beth St. James (Office of Legislative Counsel)]: So I'm gonna backtrack just a little bit to set the stage. I think one of the important pieces that we in Legis Council have been really talking about internally for the past several years is how important clear legislative intent is when you are delegating rulemaking authority or when you are asking for rules to be updated or amended in some way. LCAR is the final terminus of rulemaking. So once you go through LCAR, the rules are the rules, they've passed, subject to whatever effective dates they have. LCAR has extremely narrow circumstances under which they can object to a rule, extremely narrow. And one of those is that the rule is in conflict with legislative intent around those rules. But if there's no clear legislative intent to guide LCAR in that analysis, that's not really an option for them. So, if you see a controversial rule series coming to LCAR, and there's a whole host of people saying, you have to object, you have to object, you have to object, this is against legislative intent. Where is the legislative intent? Is it right in the legislation? Was there robust committee discussion that someone can just pull up? Or was it a vague, just update these rules and you didn't give them any more intent or guidance other than that?

[Peter Conlon (Chair)]: What is on the legislative committee?

[Beth St. James (Office of Legislative Counsel)]: Legislative Committee on Administrative Rules? Yeah. Any of you serve on LCAR?

[Kate McCann (Member)]: No. It

[Emily Long (Member)]: is a joint committee. What's the E stand for?

[Beth St. James (Office of Legislative Counsel)]: There's no E, it's L C A R. So

[Peter Conlon (Chair)]: it is the last step in rulemaking where legislators look at the rules to make sure they meet legislative intent.

[Beth St. James (Office of Legislative Counsel)]: And even if the rules don't meet legislative intent and LCAR has good grounds to object, they can't prevent the rules from being enacted. The burden shifts. And this is way off topic, so maybe I won't even go down that road. You can come in as the policy committee and say, these rules are no longer We're either going to pull rule making authority from you altogether because you're out of control. Or you can say, we are going to pause implementation of this rule for a certain period of time. And then you take a bunch of testimony and then maybe you enact legislation that causes the rules change. You can take action through the legislative process, that impacts rules. You can cause prohibit rules from being enforceable, etcetera. Again, there's caveats to all of this, nuance to all of this, but LCAR itself can't prohibit, can't stop a rule from becoming effective.

[Emily Long (Member)]: They don't have legal.

[Robert Hunter (Member)]: Right. And

[Beth St. James (Office of Legislative Counsel)]: then there's a whole legal thing about what that means if the rule were ever to be challenged, which I don't think we have time to get into now. And I'm not your LCAR attorney. So if you really are interested in rulemaking and you want to really dig into the weeds, I'm not your gal. We can talk to my colleagues, Bradley and Damian. Okay, so class size minimums.

[Peter Conlon (Chair)]: Which I think is a good example of all of this. Yes.

[Beth St. James (Office of Legislative Counsel)]: And I just want to start by saying, my testimony is not meant as an indictment on anyone. You for not providing much legislative intent or myself for not drafting any legislative intent or anyone who has the heavy burden of reopening that rule series and engaging in rulemaking related to class size minimums. I'm just telling you like I see it. So Act 73 changed the education quality standards and you added class size minimums to section 165 of Title 16, which is your education quality standards statute. Most often, when I am in your committee and when I am in the other policy committees that deal with education and we talk about EQF, education quality standards, we're never talking about the statute. We're always talking about the rules because that's where the meat of education quality standards lives. That's part of rulemaking, right? You are a part time citizen legislature. You do not have the time or the expertise. I certainly don't have the time or the expertise to guide you in coming up with all of the laws necessary for our state to function smoothly. So part of the theory behind rulemaking is you're delegating some of that lawmaking authority to the experts in the field who can get into the nitty gritty and the nuances and the details of whatever topic it is. So when we're talking about EQS, we're almost always talking about the rules, but there is a statute and that statute is the enabling legislation for requires the State Board of Education to draft rules related to education quality standards. You added a brand new subsection or subdivision related to class size minimums. And you also, in a separate section, a piece of session law, require the State Board of Education to initiate rulemaking to amend the education quality standards rules to ensure compliance with class size minimums. That is your directive to the state board to update the rules, ensure compliance with class size minimums. I don't really know where to go here.

[Peter Conlon (Chair)]: So I think that it would be important just quickly review what's in statute. Okay. And then some of the concerns raised about implementation, timing, guidance, role of AOE, role of state board, role of us. Okay.

[Beth St. James (Office of Legislative Counsel)]: Here, let me share my screen. Okay, this is Act 73. These are the class size minimums you added. So again, for the sake of time, because I just love to hear myself talk, I'm just gonna let the class size minimums speak for themselves. But I will point out, I think you all have heard testimony about some of the questions about some of the terms in here, have you?

[Peter Conlon (Chair)]: I don't think we have. I

[Beth St. James (Office of Legislative Counsel)]: think we had some pretty robust conversations about whether we needed to define certain terms when you were drafting this legislation. And there's no separate definition section for this section of law. So if when the state board goes to engage in rulemaking, if they feel a term is ambiguous, they may define it. You have not told them what the definitions for terminal courses. Right. That came up at one of my faculty meetings. What's a terminal?

[Chris Taylor (Vice Chair)]: What is

[Kate McCann (Member)]: a terminal?

[Beth St. James (Office of Legislative Counsel)]: Yeah. So it's kind of fair game if they feel in order to provide fair guidance to the field that they need to define some of these terms, they're just going to define them as part of the normal rulemaking process. And you have not provided them any guidance in one way or another on whether you want them to do that, whether you don't want them to do that, whether you wanna see what they're proposing first to make sure you agree with it. That's one thing. Sometimes rules are required to come before a policy committee before they hit a certain stage in rulemaking. I don't know how terminal I think we've had a discussion about what we think terminal courses means, but that doesn't really matter when it comes to the I mean, it does, but it's not controlling when the state board goes to make its rules. Does that Do you mean it? Can we still define it if we were to make an amendment to this bill? Then we could define it and get ahead of that? Yes. Okay. Yes. I know that I have heard confusion over And it's real humbling to pick apart your own work. But I have heard confusion over, like, average class size minimum for grades two through five shall be 12 students. Does that mean combined two through five? Or does that mean grade two is 12 each exactly, right? I don't know what the state board is gonna do with that in rulemaking. If you feel strongly about how that should be interpreted, you have options available to you. You can amend this law. It hasn't even gone into effect yet. You can amend this law. You can provide guidance to the state board in rulemaking.

[Leanne Harple (Member)]: Other questions that are also coming up are like, if you have a humanities class, which is sometimes taught by an English teacher and a social studies teacher, for example, does that mean that it's a double class size minimum? Because you have two teachers. Right, and then also there's a line in there about special equipment exemptions for, does that include band? Is a trumpet a piece of special equipment or is that meant for industrial arts with wood cans?

[Kate McCann (Member)]: Are we making this not a content area class?

[Emily Long (Member)]: No, we don't need

[Peter Conlon (Chair)]: to debate any of this here, because the fact is this isn't rulemaking.

[Leanne Harple (Member)]: I'm not trying to debate it, I'm saying these are the questions I have been on the floor

[Beth St. James (Office of Legislative Counsel)]: of my classroom, of my school, and even come up. And so I think what I heard in testimony was there is concern from the field on the ambiguity of some of these terms and the fact that the rules have not been issued yet. And so how do they know if they are taking actions that will lead them to be compliant with this law when the law is going to undergo more fleshing out, if you will, after it takes effect.

[Peter Conlon (Chair)]: So the statute that we see up here, it's in the green books, effect 07/01/2026. Rules won't exist at that point. Guidance might exist, but yet we have a law on the books. Until we change

[Emily Long (Member)]: the statute and statute.

[Peter Conlon (Chair)]: But as it stands now, starting 07/01/2026, the law is there and the law gives the AOE certain powers and they have those powers regardless of whether rule making has taken place or not. Yes.

[Beth St. James (Office of Legislative Counsel)]: Now it's easy for me to sit here. I don't have to execute the law.

[Erin Brady (Ranking Member)]: I just

[Beth St. James (Office of Legislative Counsel)]: have to poorly write it. With our help. So it's easy for me to sit here and say, yes, yes, yes, yes, yes. I'm not the one who has to answer all of those questions. Or use my discretion. I will point out that it is discretionary on whether or not the secretary takes any action. I'm So a lawyer, right? I'm going to be able to argue one side of this and the other. There is an argument here that it doesn't matter if the rules have taken effect yet. If everyone agrees, if the secretary agrees that it's not fair to start enforcing this law before all of those nuances banned, is a beaker special equipment, you know, like all of those things. Until that's flushed out, there is discretion built in here. It's a may, not a shall. But again, I'm not the one who has

[Chris Taylor (Vice Chair)]: to answer those questions.

[Beth St. James (Office of Legislative Counsel)]: So it's an easy thing for me to say. But I would agree that the law is the law and it is enforceable regardless of whether this law is not The effect of this law is not contingent, in its simplest sense, on the rules being developed. Being able to execute the law in a clear, consistent, effective way may be contingent, but that doesn't change the fact that the statute will be effective absent any other action taken by you on 07/01/2026.

[Peter Conlon (Chair)]: So if I could translate that into what we could think about or not, is we could put a delay on it until such time as the rules have made it through the whole process.

[Beth St. James (Office of Legislative Counsel)]: Certainly a policy option. You could change the effective date of this statute. You could also just I don't wanna use the term moratorium, but create a grace period That, yes, this law is going to be effective 07/01/2026, but that three year clock is not going to start ticking until the rules are in place or a certain date, you know, whichever comes first. All policy options for you all. You could also take no action. One thing that I Again, these are all policy decisions for you all. And I just can't stress enough how easy it is for me to sit in this chair and look at the language that we have drafted together and think, this does it. This is it. But we are not the ones executing that law. And so if your goal is to write law that is clear and is executable at the time that you want it to be carried out, it always behooves you to check with the folks who are going to be carrying it out. And so one thing I have learned is this language, this rulemaking language. The rulemaking was the language that we've been using, at least in these committees, is shall initiate rulemaking, which is going through the ICAR process, which is the Interagency Committee on Administrative Rules, on or before 08/01/2026. Is not rulemaking begins on 08/01/2026. It's on or before. And so I wonder if we should start changing that to instead say rules need to be adopted by a certain date. I don't know what's more helpful to the field. And quite frankly, I don't need to care what's more helpful to the field. I just need to care about what you all want to do. But if you care what's more helpful to the field, that might be a question to pose. Because There's been time.

[Peter Conlon (Chair)]: Right, right. I think we always try to be sensitive to the fact that, for example, the State Board of Education volunteers, they meet monthly. They are not exactly the fastest group of people to get something done because of that.

[Beth St. James (Office of Legislative Counsel)]: What else should we talk about?

[Peter Conlon (Chair)]: Well, was very helpful. So there's a third sort of thing involved, and we can take testimony from the AOE and the SBE if we want to on this. However, we could also, as Beth said, we could take no action. The statute's there, rulemaking's gonna happen, things may not line up beautifully between the rule and when the law takes effect, but we could sort of trust that it would be dealt with appropriately by the AOE. But then there's a third part. The AOE also has the ability to issue governance if it so chooses for school districts on how to consider the statute. But that's not the same thing as a rule. It's just guidance. And they could create that guidance in coordination with the State Board of Education. Yes, Emily.

[Emily Long (Member)]: I'll just reiterate my thoughts on this based on everything you just shared with us about clarity. And just remind us that I'm sure I'm not the only one around this table here who has heard a lot of confusion around having a law take effect before rule making pests. And so I am a pretty big fan of clarity. And so I want us to be mindful of the confusion that that causes by just allowing the language that you just had up there saying on it before, be good. I just like to do that.

[Peter Conlon (Chair)]: And some of the things that the state board is struggling with is defining what's a school.

[Emily Long (Member)]: Understood. So I

[Peter Conlon (Chair)]: What's a class? What's average? And

[Emily Long (Member)]: this was the other thing I was gonna say, then you talked. I just wanna also mention that you are absolutely correct in your statement about the state board as volunteers. But we've also agreed, I think, around this table and heard from the state board that they could use help. And I feel strongly this is a great example of what we're talking about here, why we need to resource a very important board that I think exists for our education system in the state.

[Beth Quimby (Member)]: I mean, not completely relevant to this, but sort of, because we also have a bill on the wall that suggests to amend Act 73 by removing this entirely. But

[Emily Long (Member)]: if

[Beth Quimby (Member)]: you do that, then you'd also have to make sure you removed all the parts about rulemaking. Not just saying class size minimums, but also making sure you take out all the other parts that relate to that part.

[Kate McCann (Member)]: Let's take that out. We don't leave the other part in. It might be a problem.

[Peter Conlon (Chair)]: Alright. So it's basically something for us to consider. We may need to get a little bit of testimony saying whether it's needed or not, or can everybody outside of here get along? Moving to our next topic, which is sparsity and small by necessity. We had a presentation from the state board committee working on this. They did a lot of very thoughtful work as they develop rules. But they sort of left us with the message, it's now in your court. And I think there is some confusion as to sort of our assignment of them to come up with these thresholds and whatnot, and then having come up with lots of possible criteria.

[Beth St. James (Office of Legislative Counsel)]: Let's look at the language. Okay, this is Act 73, Section eight, Subsection B requires the state board to submit a written report to you all with proposed standards for schools to be deemed small by necessity or sparse by necessity. They've done that and showed you all of their tremendous work in that area. That's it. That's all this says about the Here's the next place in Act 73 we see this term. Section 37 in the foundation formula and the small schools, sparse school support grants. So we jumped from section eight to 37. And this says, so this is the part of the foundation formula. This is instead of a wait for small schools or sparse schools, it's a grant now under the foundation formula. And remember, the foundation formula is contingently effective on 07/01/2028. And the contingencies are new school districts being operational and a report back on the foundation formula and the weights, etcetera. If those things don't happen, if the contingencies are not met, the foundation formula does not go into effect. But assuming that it does, section 37 would create a small school, sparse school support grant. It defines small school, sparse area, sparse school. But then anywhere we're seeing the term by necessity, there's this under standards consistent with those submitted to the general assembly pursuant to Section eight B of this act, has been determined by the state board on an annual basis to be sparse by necessity under those standards. So I don't think that Act 73 require It doesn't outright require any other action for you all to take. But it seems like there's a disconnect. If you didn't take any action and the foundation formula came into effect, the law says the state board's making an annual determination. That's what the law says. Is that your intent? If not, then we need to figure out what you wanna do with those standards that they've developed and proposed and either amend this or ask them to put those standards in rule or have someone else make this determination and own those standards. I mean, there's lots of different policy options here. But in a plain reading of Act 73, you ask the state board to come up with these standards, and then you have law taking effect that would then require the state board to make an annual determination and nothing in between those.

[Peter Conlon (Chair)]: There's nothing that says appeals.

[Robert Hunter (Member)]: Correct. Yep.

[Peter Conlon (Chair)]: That's what

[Beth Quimby (Member)]: I was gonna The statute requires them to issue a report. It does not require them to make actual rules around this.

[Peter Conlon (Chair)]: It require them to evaluate.

[Beth Quimby (Member)]: And then they make a determination every year. But in section eight, it doesn't say they will initiate rulemaking around this or it just says they will report to us.

[Peter Conlon (Chair)]: Yeah.

[Beth Quimby (Member)]: So that's where the disconnect is, if I understand correctly. Maybe? Depending on our intent.

[Beth St. James (Office of Legislative Counsel)]: Depending on your intent.

[Peter Conlon (Chair)]: If our

[Beth Quimby (Member)]: intent is to just let the state board figure it out and do.

[Peter Conlon (Chair)]: Well, I think the state board is saying, we've kind of figured it out. What do you want us to do with that?

[Beth St. James (Office of Legislative Counsel)]: Act 73 says every year you're going to use that criteria and make this determination.

[Peter Conlon (Chair)]: So when they presented to us and they said, kind of, falls in your court, what do folks remember from that? I think they were asking us to help with the criteria. I guess I'm a little and maybe that needs revisiting of somebody who has a better memory than I do, and I'm very fuzzy today.

[Jana Brown (Clerk)]: I remember that presentation is a little bit vague, but were they at They gave us a couple of different options, right? And they kind of said, we need to make some policy choices in the scope of this work to give some direction, whether that's giving them rulemaking or bending the statute. That's my very big memory of what happened. It's not gonna

[Emily Long (Member)]: take a

[Peter Conlon (Chair)]: few minutes. I'm sorry. Here is, I'm looking at their presentation. They were they were fairly clear. At production. Okay. What do you want to do with it? About timing and rules. So we all need to sort of revisit that. So I'll just I'll I'll go over that very quickly. So for example, this is under the heading of other implementation considerations. So after a survey goes through the criteria, recommend that AOE be charged with the responsibility for determining whether a school qualifies as small by necessity. I think that what they're saying there is don't make us review this every school because we're just a board that meets monthly. The specific criteria documentation requirements timeline and data elements used by AoE should be established in rule and incorporated in the EQS. So expectations are transparent and consistently applied. So in a way that's sort of saying, tell us to put this into rule making. Timing, recommend that schools be designated as small sparse by necessity annually on a timeline that aligns with district budgeting. I think there's a little bit of Let's see. I guess that's it. But they had actually demonstrated schools under 100 kids. They came up with all sorts of criteria, possible criteria. And I think they said possible criteria because we didn't say because they're looking for hey, we need make the determination and they're looking for maybe looking for the rule, I was telling you to determine the rule. While we have legislative council here for the next five minutes, any other questions to put out there? To briefly accept the opportunity.

[Emily Long (Member)]: That was far off. So just

[Chris Taylor (Vice Chair)]: to clarify my understanding of what's in Act 73, and this is in the formula part, but the support grants for small and sparse schools, when we go to a foundation formula, are only if small and sparse by necessity? Yes.

[Beth St. James (Office of Legislative Counsel)]: If there's an and there. Sparse school is within a sparse area and has been determined to be sparse by necessity. Small school has fewer than 100 pupils in two year average enrollment and has been determined to be small by necessity.

[Peter Conlon (Chair)]: That may be it. Thank you for our social studies lesson today. Was very helpful.

[Beth St. James (Office of Legislative Counsel)]: Yes. It's so easy to sit here because I don't have to do any of the hard work. So if you ever get feedback that something we are working on together is not what's going to lead to what we think it's going to lead to, Please, that's great feedback to get.

[Robert Hunter (Member)]: We just went through the first few minutes. Okay,

[Peter Conlon (Chair)]: so before we sort of break, which we'll do to go to the floor, I think we'll break early, I do want us to just have a conversation about other things and who and what we need testimony on. I'm trying to keep a list over here because we're going to get ourselves bogged down in the pink stuff. So we just sort of talked about class size minimums. And I think that we basically need to find out or decide whether we should put a grace period in or a delay so that the rulemaking and the statute line up. Or as legislative counsel said, not. They just let the statute stand and let the rule making process go about and trust that everybody assigned to that work is understanding of the dilemma. That was the class size minimal. Do people want to do anything further I at this

[Kate McCann (Member)]: would say yes.

[Peter Conlon (Chair)]: And what would that be?

[Kate McCann (Member)]: For fibroid clarity, define some things.

[Peter Conlon (Chair)]: So, we don't necessarily have, we can define some things, but we can let the AOE and the state board do that.

[Kate McCann (Member)]: If our intent is not clear, if we're talking about 10 kids in grades two through five, and somebody reads that as 10 old children in the grades between two and five, we don't want that.

[Peter Conlon (Chair)]: So, maybe what we need is some testimony that says whether they need us to do that or not, or if AOE and SBE feel comfortable doing that. I think the tension that was brought to my attention was just the timing. We got a statute that takes effect July 1, but we won't have rules by then. Probably we won't have guidance by then.

[Kate McCann (Member)]: It doesn't answer the two teachers in a classroom either.

[Peter Conlon (Chair)]: It would be up to them to do it rather than us to do it.

[Robert Hunter (Member)]: In hopes that common sense would prevail, I

[Chris Taylor (Vice Chair)]: guess. Well, I

[Jana Brown (Clerk)]: guess, this quick, just one, I guess we should think about who's in the best position at this moment to hear all the necessary feedback from the field and make those nuanced Is it us, or is it the state board?

[Emily Long (Member)]: I was gonna say, I'm not sure of

[Erin Brady (Ranking Member)]: because name

[Emily Long (Member)]: it really is about, in my opinion, confusion. How we have a law that takes effect before this rulemaking, and people wait for the rulemaking to understand it. So who is in the best position to make sure that we minimize that? So then maybe Clarify.

[Peter Conlon (Chair)]: So then maybe say, doesn't take effect until rulemaking is in place? Yeah. Yep.

[Emily Long (Member)]: I think that's the simplest starting problem.

[Erin Brady (Ranking Member)]: Josh? It does make sense to hear from both the AOE and the state board on the subject back to back and even on sparsity. I think those two just to kind of hear from one and then another, but if we do them back to back,

[Peter Conlon (Chair)]: we can hear both of them and kind

[Erin Brady (Ranking Member)]: of compile how that works together. Maybe they can explain how they'll work together on those.

[Peter Conlon (Chair)]: It may be very simple testimony. They might say, we're fine making all these definitions. Just we wanna clarify the timing. Yeah. Okay. That's good. The issue of sparsity and small by necessity. Much of that came out of ways and means. I'll talk with the Chair of Ways and Means about sort of I think we had confusion about the fact that we didn't say, make the rules. We thought we did. So we don't know why they're throwing it back at us, but they've made it very clear why they're bringing it back to us, and that we need to do that. So I'll just sort of check ways and means about which committee sort of makes that call.

[Beth Quimby (Member)]: And if I understood you correctly, also the state board would prefer that the AOE make those determinations rather than them making, so that we would have to investigate that and maybe get some testimony. We should change that would be possible.

[Kate McCann (Member)]: There seems to be a lot of confusion around that. I think when we hear from constituents who are freaking out that their small community schools are gonna close, if your small community school is like, I don't know, 15 to 20 miles away from the next one, you're probably sparse by necessity. But if we don't define that and nobody gets a chance to read it, then they're gonna just keep freaking out. Well,

[Peter Conlon (Chair)]: it's also not a closure. It's just whether you qualify for additional funding. But it could

[Emily Long (Member)]: be closer because it could be considered. Could be

[Beth Quimby (Member)]: because you don't get There

[Emily Long (Member)]: are folks in the field right now, at least in our communities, who are making some significant decisions about whether to keep the school open or recommend to close it. And this has an effect. Mean, It's little represent class size. Where they said we're unable to meet class size minimums. We're really confused about how it's being implemented. But since we can't meet it, we're probably recommending at this point it's close to school then. There's been tons of confusion in that book.

[Peter Conlon (Chair)]: Alright, so other topics that have come up, I just don't want things to get lost in the shuffle and who we need to hear from. I obviously have my little pet thing here about PCBs, but it needs to be a full committee discussion about the bill that I introduced versus the feedback we got from the Department of Environmental Conservation and sort of the feedback we've heard from superintendents about what they're struggling with and the best way to go forward. So, I think what we need to do is sort of, at some point when we have time, put together, compare and say, I'm comfortable doing this, not comfortable doing that. And then I suppose get more testimony after we kind of figure out what we want to do. Does that sound like an okay plan to focus on that? I know I'm kind of driving the driving the ship on this one, so yeah. But I would like everybody to be engaged with it as well. Sounds good, mate. As far as any last night, I think. Okay. Anything I didn't get a lot of sleep last night. Had leg cramps all night, so I'm very foggy. So just try to think about what else. Yes?

[Erin Brady (Ranking Member)]: You have the moratorium, the question of the therapeutic and schools. I'm not I'm sorry.

[Peter Conlon (Chair)]: If I was not here during the testimony that we had this morning on this issue, did it prompt people to say, I'd like to hear from this person or that person on the moratorium? It sounds like there are places where there really isn't need.

[Erin Brady (Ranking Member)]: Yeah, and even schools in Chittenden County that have, Essex, Oxford, did I say that right? I mean, they have their own program. They're saying, We still need more spaces. So I think that was enlightening Those this programs can support a certain population of students, but there are still a population of students that go beyond support they can do it. So then hearing more from the field there, as well as, as I said yesterday, the association that handles all that, as well as maybe the school that is in question.

[Peter Conlon (Chair)]: I talked with the lobbyists who got this whole discussion going, saying it'd be good if we could hear from the school or more importantly school districts that rely on that school. So we really have an understanding of them.

[Emily Long (Member)]: But I want to continue this dive we're going into on special education in general. We'll do more tomorrow, we'll hear more today. I'm still Fives are being raised all over the place for me, personally, after watching What's Happened 173, not feeling confident that we have a good plan on next steps in speciality. Even the seesaw's testimony this morning we heard, there were questions that I started to form in my head afterwards. I think there's, as always, when we start talking about enacting changes like this, there's assumptions being made, and I think there's less clarity around this than there could be.

[Peter Conlon (Chair)]: So could you translate that to what more who would you like to hear from?

[Emily Long (Member)]: So I want to hear it tomorrow. I want to hear what we hear tomorrow. Was one of the reasons why I'm bringing it up because it's coming tomorrow. And I'm going to add another on that. I want to, for me, seesaws is another item on there. This seems to overlap so much of this. I'm just adding sort of an additional I felt a ton of clarity over a couple of segments of testimony we had. Jill Graham and then Joan were both incredibly helpful, but I think that's for us and the field doesn't seem to be as clear on the value. And if we're talking about moving forward with that, and especially if we're talking about mandating it, and it's going to have a significant role in any district changes we make, we need to make sure that we are being very clear. This testimony we just had from Beth makes it clear to me. So is there a

[Beth Quimby (Member)]: I'm not really sure really where to

[Emily Long (Member)]: I guess I'm looking to everyone else. I felt pretty confident after seeing knowing the value of it in my own district and hearing from Jill. I actually had a conversation with Jill, who by the way was there when we all had our lunch over at Cross with the superintendents, I sat with her and had another conversation with her and felt very confident. But I don't think that's being translated elsewhere, and I'm not sure how the rest of the community feels. Well, I

[Peter Conlon (Chair)]: think as you pointed out, policies that we have

[Emily Long (Member)]: is that got the past Correct. That's where the gentleman who the last name was?

[Beth Quimby (Member)]: Also The nationwide information. Bigger

[Peter Conlon (Chair)]: and longer term. What I heard this morning was that she wasn't so sure. I think Right. She thought that right. I I think that she wasn't hearing the message that we were hearing, that this was Back at me this morning. Merely way to assist school districts.

[Emily Long (Member)]: Is understandable to me that folks in the field do not wanna add another layer, and I want to make sure that we're being very clear. And I know I know I'll let you say what you want to say, Jana, but it seems very clear to me that there isn't clarity about what this seesaw OC model is in the field. We need a clear model. I mean, I

[Jana Brown (Clerk)]: think on that topic, I think what I heard in testimony this morning is a concern that if we move to a bigger, see some models for special education, like being still very clear about who's legal response, where does the legal responsibility rests? I think I heard more nervousness around generating confusion in that realm.

[Leanne Harple (Member)]: Just to have

[Jana Brown (Clerk)]: those clear understandings in place. Totally true. And to

[Emily Long (Member)]: add on to that as an addition, I think we heard some testimony, I think it was from Joan, somebody can correct me if I'm wrong, that some of these boards that oversee these BOCES or CSUDs or whatever they're called, they're run by school boards or have school board members on them, others are simply administrator. And I think we need clarity around which way we do it, because the one that we have in place, the only one we have approved in the state of Vermont, does not include school board members. I think that's one of the deep values of it. It is truly an educational and systems board. Interesting.

[Peter Conlon (Chair)]: They provide services. As part of our discussions on moving forward with 73 we can revisit our BOCES language.

[Chris Taylor (Vice Chair)]: I would make a pitch that co sponsored a bill related to early college. And I think that was perhaps maybe extreme in what was proposed in the bill, but was important in terms of starting a conversation about bigger, flexible pathways. There's an early college issue in particular, but nestled within flexible pathways and I think a long overdue look back at a really significant piece of Vermont legislation and investment and who's it serving, how's it serving, where are the tweaks, it's going to run up against some of the graduation standards work possibly. I think it speaks to some of our scale issues. But I would be interested in at least getting some data from the AOE and possibly putting together some interested or some of the most involved parties to do a deeper dive to bring back to us later on, but to sort of define what we want to know in this kind of local sort of a state of the state of flexible pathways.

[Peter Conlon (Chair)]: As opposed to what you're suggesting. Coming up. Is to say rather than we need to have a conversation about what we want get for information and all of that. Not necessarily with an eye towards revamping flexible pathways before the end of the session, but that's a good job. Yes,

[Beth Quimby (Member)]: just a question piggybacking on that, because a bill was presented about virtual learning that relates to possible flexible pathways as well. So don't know if that would tie into that topic as well, getting more information about that.

[Peter Conlon (Chair)]: And this wasn't the early college one that we heard before, was it about saying, let's just give them more dual enrollment and get rid of the

[Beth St. James (Office of Legislative Counsel)]: That was the bill. That

[Peter Conlon (Chair)]: was the

[Chris Taylor (Vice Chair)]: bill, but again, I think

[Kate McCann (Member)]: that was an all owned

[Chris Taylor (Vice Chair)]: part of it as one of the co sponsors, sort of a funky way of forcing a legislative conversation. It was,

[Beth Quimby (Member)]: that's why I wanted that virtual learning bill that was presented last week ties into that as well as under flexible pathways. One of

[Emily Long (Member)]: the things I would, it prompted this conversation we had this morning, prompted in my head was we want to allow early college children to, our students to access early college and no one seems to really know who is taking advantage of it really.

[Chris Taylor (Vice Chair)]: Anecdotal should have bad data. Think we

[Emily Long (Member)]: just look at it. Right. So I'm talking about data. And I also would like to know, this came up this morning, are those students moving on to our Vermont colleges that we are being asked to resource in greater numbers every year? This is not a value system. I believe they do need more resources. But are they moving on there? Are they going to their next years of college out of state? Or are they going to private colleges? I don't know where they're going. And I would want to know. If we're being asked to resource, our university and state colleges want to make sure that we're keeping those kids in our state as best we can. Do not volunteer.

[Peter Conlon (Chair)]: So, I think that we should start honing in on maybe, like, a report that we want to get that doesn't already exist.

[Chris Taylor (Vice Chair)]: I think we should get testimony with some of the data that does exist that would help us hone in on the questions that might drive that report. But I think in particular, we'll need testimony from AME, particularly around the numbers. I don't believe

[Peter Conlon (Chair)]: it will track your question.

[Emily Long (Member)]: No, not that part.

[Beth St. James (Office of Legislative Counsel)]: You might be

[Chris Taylor (Vice Chair)]: able to get something up from CSAC, but I

[Beth St. James (Office of Legislative Counsel)]: think as a starter at least.

[Emily Long (Member)]: It I might not matter at all, but I think we need to know. We may choose to not pick up.

[Chris Taylor (Vice Chair)]: Which we could probably get, you know, get at least half of or a little under half of the dual or the early college is your CCB. You certainly get there and they've built up a bit more of a program around supporting those students so we could get, I think, CCB testimony as well as just some numbers and the schools that they're coming from. Obviously, anecdotally, we're hearing about very disparate impacts from some different schools.

[Emily Long (Member)]: Suss out anecdotal first. There's also a nagging thing that came up for me this morning, I'm not trying to dominate, but this came up this morning, that the increase in the number of students who are getting their degrees for full. And I recognize that what we heard there was because many the students who are getting their degrees or advanced degrees are older students, not high school, just out of high school. But the early college, in some of the testimony we've heard and some of the anecdotal feedback we've had, it seems to be quite similar in that senior year, being quite a lot of it is virtual. And while it may not bother me if there's somebody 30 years old going back to a virtual new degree, it does concern me about the impact on students not having in their senior year a connection to either a college or a high school because it feels like we're letting them float.

[Peter Conlon (Chair)]: In It worries the data gathering requests, if somebody would like to keep a list, could ask CCV and the state colleges how many kids who enter early college are doing so 100% virtually? Or how much percentage are they doing it virtually?

[Emily Long (Member)]: I'm

[Peter Conlon (Chair)]: just flipping through notebook here. There is an issue that I think is mostly taking place in human services that is about Medicaid billing. And I just sort of bring that up. I'll learn more about it. Medicaid billing for schools and the idea is that Diva is better suited to the agency of human services, better suited, just backing up on that thing here, better suited to handle Medicaid billing than AOE and schools themselves. Yeah, yes.

[Erin Brady (Ranking Member)]: The answer is yes.

[Peter Conlon (Chair)]: Anyway, that's being I'll learn more about that. I keep getting reminded that actually human services and I need to get together. It all sounded very positive and like a great idea. All right and then we'll need to write a budget letter in a couple of weeks.

[Chris Taylor (Vice Chair)]: We're working on the spreadsheets.

[Peter Conlon (Chair)]: And so we have to weigh in on things like UBM's request for the $1,000,000 per year for the cancer life, which we frankly never funded. And I didn't see a lot of It almost seemed like they were resigned to the fact that that was what the doctor I funded don't know if the $15,000,000 proposal from the Higher Ed Trust Fund is ever going to come to fruition, but I'd bring it up there as a thing. Yeah, I

[Emily Long (Member)]: was glad to see if that's okay.

[Peter Conlon (Chair)]: But we'll have to weigh in on that in our budget now, since that's hard with requests. And, you know, we got GIB asking for some more, we'll have some others asking for more. And so we to give them the best guidance we can. For a couple of years, were allowed to just say, Yeah, love it all. Let them figure it out.

[Chris Taylor (Vice Chair)]: It's a little tighter now.

[Peter Conlon (Chair)]: All right, I think this was helpful, and I just really wanted to get things up there and find ourselves open to what it is we need to revisit with each of those things. That's good.

[Emily Long (Member)]: I'm happy

[Peter Conlon (Chair)]: I'm happy I'm for scheduling and other purposes. So with that, we stand adjourned on