Vermont Legislature SmartTranscripts:

[Thomas Burditt (Vice Chair)]: We have it live.

[Martin LaLonde (Chair)]: Welcome to the House Judiciary Committee this Tuesday morning, April fourteenth, and we're taking a look at an amendment on s two eighteen, the chloride or salt bill, which is, we don't have jurisdiction over this, but we've been asked to weigh in on this particular amendment because it does impact our jurisdiction. So we're gonna start by hearing the sponsor. Thank you for being here. You're becoming a freaking flyer in this I know. You know me. I'm a get around.

[Michael Boutin (Former Barre City Councilor)]: It's like that song. Around. Did everybody hear that song?

[Martin LaLonde (Chair)]: Yeah. It's like By yourself for the

[Michael Boutin (Former Barre City Councilor)]: rest of your Alright. Us about Sure. Michael Booten, Berry City. You know, I have fourteen years of experience of municipal government as a city councilor, so this kind of stuff is very important to me. And I do wanna say thank you for having me here and allowing me to run my gums a bit and to present the amendment regarding municipal liability that we can put into s two eighteen, the salt debt. As the bill is currently drafted, it creates what is called an affirmative defense for municipalities. However, the protection is inadequate. In order to qualify, a municipality must prove multiple conditions, including annual training, detailed record keeping, and that the incident was caused solely by snow or ice, all while still being exposed to claims of negligence. In practice, that is not a strong protection. It creates a situation where a municipality could still face significant legal exposure, and frankly, any attorney worth their weight could challenge that effect. At the same time, we are asking municipalities to reduce salt usage. While that is a worthwhile goal, we have to recognize the risk we are asking them to take on. Without meaningful liability protection, municipalities are being put in a position where a single lawsuit could have major financial impact on their general fund and ultimately property taxes, everybody that we represent. This amendment is straightforward fix. It applies a liability cap of 500,000 per person and 2,000,000 per incident, which mirrors the caps that the state of Vermont currently has in place uses. I mean, it's something that they've had and it should absolutely be extended to the municipality. For reasons of germaneness, this amendment only applies to the municipal SALT applicators. I would support certainly a broader application to municipalities generally, but this is the scope that I can address with this amendment. However, I have been told that you guys are able to open it wide up, so just throwing it out there. VLCT has expressed strong support for this amendment and has described it as a necessary step to ensure municipalities can participate in the chloride reduction program without undue financial risk. At the end of the day, if we want municipalities to reduce salt use, we need to provide them with real workable protection, not something that looks good on paper, but slips and falls short in practice.

[Martin LaLonde (Chair)]: Questions for Mike.

[Kenneth Goslant (Clerk)]: Yeah. I can start. So you is the city is in Townsend here?

[Samantha Sheehan (Vermont League of Cities and Towns)]: Yes. Mhmm. Yeah.

[Kenneth Goslant (Clerk)]: So thank you. So so there's 500,000 limit per person. What happens if they get a serious head injury? That $500 is used up like nothing.

[Michael Boutin (Former Barre City Councilor)]: It's a question that you could ask for the state of Vermont as well. I mean, Vermont already has. The state of Vermont has the same legal protections that I'm just asking for you to apply to this one bill. Okay.

[Kenneth Goslant (Clerk)]: So I got you there. So you've been in municipal government for how long? Fourteen years. So I was in it for ten, right? And I was a stickler for spending money, which

[Chris Maley (Attorney, personal injury)]: I am

[Kenneth Goslant (Clerk)]: here. Right? Like, why are we wasting salt if we don't need to? I mean, that would be that you're you're you're gonna follow that on as a select board member, I assume you're Absolutely. So, I mean, why do we need more government input on that, especially when we have the LCT to to go and kinda oversee that if the what are you're city council. Right?

[Michael Boutin (Former Barre City Councilor)]: Sadly, I'm not anymore, but I I was.

[Kenneth Goslant (Clerk)]: But in our past lives, that was part of our job to to to go and do. So so this

[Michael Boutin (Former Barre City Councilor)]: doesn't yeah. The the salt, certainly municipalities are gonna wanna reduce their salt usage because they don't wanna spend the money because it costs taxpayers money to do that and we have to pass budgets. The bill does that in the main bill, but this amendment is solely to provide additional protection for the municipality if they do to a reduction in their salt and somebody tries to file

[Kenneth Goslant (Clerk)]: a claim. So I get all that. Like, Northfield, put in the safety storm water drains, whatever it is, to try to all that stuff off there. But I don't I don't I'm not crazy about this bill to begin with. So Oh, I'm not defending the bill.

[Michael Boutin (Former Barre City Councilor)]: Just say what Please be very bear

[Kenneth Goslant (Clerk)]: I'm stepping where I should I'm trying to I'm trying to figure out in my head how to make this workable better. I can try to agree with it.

[Michael Boutin (Former Barre City Councilor)]: Yeah. So all I'm asking for is support on the amendment. The amendment which just increases the not increases, but puts a cap on the liability for the municipality similar to the f h one thirty eight, which is a bill that was submitted by your by the chair.

[Martin LaLonde (Chair)]: Thank you. Ian and then and then Karen. Karen, then Ian.

[Samantha Sheehan (Vermont League of Cities and Towns)]: Yes. This

[Karen Dolan (Member)]: amendment, and I should say when I first looked, was like, yeah, this sounds like it's a good thing for municipalities, but I'm looking at kind of constituents across the whole community. And I'm really curious about the data behind this because we have it set up that there's going to be the affirmative defense, which could protect municipalities fully. So where's the data saying that more protection is needed? And also data on how many of these incidents have happened? Because for me, it's how do we make sure folks get the full coverage that they need when one of these rare and horrible accidents happens?

[Michael Boutin (Former Barre City Councilor)]: Sure. So I will say that the SALT bill is asking you to lower your salt usage and putting a raws eye protection in there for the municipality for reducing that salt usage. But again, any lawyer can get through those types of protections, but a liability cap is a little bit different. And for the data, I would just point to the state of Vermont because they have had this for a while and I don't know how long, but long enough to know that at least for two years, VLCT has been trying to get this liability across the board. And I'm assuming that it's longer and I would have to defer to BLCT for how long Vermont has enjoyed that liability cap and what impacts have been

[Martin LaLonde (Chair)]: felt from that. So I'll

[Karen Dolan (Member)]: just say from my perspective, I feel like this open to hearing more, but I feel like this is a leap. I would feel more comfortable starting with the affirmative defense piece, and let's see what are the gaps and the pieces from there rather than jumping to this cap that can leave community members without coverage.

[Michael Boutin (Former Barre City Councilor)]: Ian? Just one question. Do you know how municipalities are insured? Yes, they're insured through VLCT. So they're not

[Martin LaLonde (Chair)]: self insured? Not to my knowledge. Some are.

[Michael Boutin (Former Barre City Councilor)]: Yeah, I can only speak to one, the one that I was a part of, which is Berry City, and they're through BLCT. Other

[Martin LaLonde (Chair)]: questions? We'll take another testimony. Yeah, we're gonna hear from Samantha, right? And also Chris Nathan. So we'll have Samantha join us now. Thank you, thank you very much. Thank you for being here. Thank you for being available today.

[Samantha Sheehan (Vermont League of Cities and Towns)]: Of course. Thank you for having us, and thank you for considering so carefully this amendment, which we totally support, are really happy to support. I'm just going to pull

[Martin LaLonde (Chair)]: up some notes in front of

[Samantha Sheehan (Vermont League of Cities and Towns)]: me because you have great questions, I'd love to answer all of them.

[Martin LaLonde (Chair)]: If you could identify yourself for

[Michael Boutin (Former Barre City Councilor)]: the right.

[Samantha Sheehan (Vermont League of Cities and Towns)]: So my name is Samantha Sheehan. I'm the municipal policy and advocacy specialist for the Vermont League of Cities and Towns. Immediately prior to joining the league, I worked for the former mayor of the city of Burlington, Mayor Moreau Weinberger, which is self insured. So Burlington is one of currently two municipalities not in the LCT's insurance pool. Leagues across the country provide this type of insurance coverage where the municipalities pool together. And so PACIF is a separate organization with a separate board that governs the insurance business that VLCT provides. I work for VLCT. We represent all two fifty one municipalities in the state of Vermont, including the municipalities where you live and serve. And so we're really happy to support this amendment brought to you today. And if you adopted the amendment, we would be happy to support the bill S-two 18. But without it, we're really not able to. And that's because our risk management attorneys who advise all Vermont municipalities on risk management find the current affirmative defense and liability protection, limited liability protection, carried in S-two 18 to be totally inadequate for municipal government. And so what I want to really talk to you about today is three things. So the first is that this is a very small, discrete change to the bill that is totally in line with Vermont state law and the protections already extended to state government. And so I respectfully disagree that this is a week. This is actually a very discrete change that extends a relatively small protection to municipalities. It doesn't make programmatic or policy shifts within the bill and the salt reduction program that it envisions creating and is totally consistent with state law and state monetary liability caps. The second point I want to make is that talk more about why the affirmative defense in the bill is not adequate for municipalities specifically. And then lastly, just talk about how this amendment would really improve participation on the program at the municipal level. So the way municipal liability works and our relationship with tort law compared to the state goes back a number of years. So you may be familiar with the concept of sovereign immunity or with other particular types of defense that are available to public officials, such as discretionary exemption. So if the legislative body makes a discretionary decision, they're not liable for that. There's, of course, qualified immunity. We've had a lot of discussion about that. With this type of accident or civil liability that is exercised in tort law and back in 1993, there was a lawsuit against a municipal public works employee. That case was heard by the court, and the court said the state legislature really should change the law because people should not be suing individual municipal employees. They should be suing the municipality. And the legislature in 1993 did not make the change. Then a very similar lawsuit came forward against a plow truck driver. And again, the case was heard and the court made the same statement in its decision that state law really should be changed because individual municipal employees should not carry this type of civil liability. And so at that point in 2003, the state law was changed in '24 VSA 901A, and that requires municipalities to defend and indemnify municipalities. So if there is a claim that a person experiences an injury or an accident or some other damages because of the actions of a municipal employee, the whole corporate is on the hook, which means that is a cash liability for all property taxpayers and fee payers that are served by that local government. And we have had substantial settlements and awards where someone has been injured or has made a claim of damages and the municipality has had to make a substantial payment to that person. So there was one in 2019 in Mooredown against a road raider, and that was heard by the court and the court awarded $300,000 So more time had to find $300,000 A year before that, there was a case in a community in Addison County where a person was injured due to a failure of a piece of public infrastructure. And the municipality settled with that person, and the award was over $9,000,000 Burlington has a well known one from many years ago that was over $18,000,000 I believe.

[Karen Dolan (Member)]: Karen? Yeah. I appreciate the examples for this. One of the things I'm concerned about with this is that because it says if the municipality does not qualify for the affirmative defense, that's when this cap would come in place. Correct. And so one of the thresholds for having the affirmative defense is that it can't be negligent or reckless disregard. So I'm not seeing that in here at all. So basically, in your example, somebody could be negligent or have reckless disregard and would be able to have this cap?

[Samantha Sheehan (Vermont League of Cities and Towns)]: No, the way that this liability cap works is that this is my understanding, this is a question that you should direct to legislative counsel. But my understanding is that for gross negligence, depending on the outcome of the claim, And certainly for criminal or civil violations, this protection is not available to the person because the municipality is not bound to defend and indemnify that person. So if a town clerk denies someone's right to vote and they violated their civil liberty, the municipality is not the hook for the actions of that or is not on the hook for that illegal action. If a plow truck driver is drunk and hops a curb and causes personal or property damage, that's criminal. Certainly drinking and driving is not an obligation of the cloud truck driver's profession or employment agreement with the municipality. So the municipality does not have to defend their actions and would not be obligated to cover any civil liabilities either. But this would be specific training that they would be following.

[Karen Dolan (Member)]: I guess I just don't see it explicitly spelled out. Just with the examples you shared, I wonder if any of those are crossing those, that they were gross negligent or what was the other one? Reckless disregard.

[Samantha Sheehan (Vermont League of Cities and Towns)]: I think, again, I would direct that question towards counsel. But when we discuss this internally, my understanding is that really depends on the outcome or the claim, whether or not it would be are we is that But I think at this point, I'd like to move on to discussing how the state enjoys this protection and why it really functions why it's functional and really serves your constituents and our shared constituents that receive services from state government. So here in Montpelier, we have a number of state parking lots. And the Vermont Agency of Transportation has operated a fluoride reduction program amongst the state employed applicators for many years. So those operators receive training and support from the agency that teaches them how to safely reduce salt and make these types of discretionary decisions, and they do that. So if we have a thaw freeze event in the city of Montpelier and a state employee parks their car in a state parking lot and slips and falls, they would be subject to these liability caps of $500,000 per person or $2,000,000 per incident. Same thing if they pull into the parking lot and they slip their car on ice and they hit someone else's car. Same cap for both people involved in that incident. If they are able to safely park their car, exit their vehicle, walk through the parking lot, and then on to the city of Montpelier sidewalk in the public right of way that's maintained by city of Montpelier public work staff, and they slip and fall there, then they would not be subject to that incident cap because the state legislature never created the cash liability cap for municipal government. The same thing functions in mountain bike trails, where most of our trail networks and multi user trails, including here in Hubbard Park, move from private land, where there's total protection, to municipal land, where there's no cap, to state land, where there is a cap. And so someone could seek remedies if they're injured on state owned property. They are subject to a limit of what they could be awarded. They can seek remedy if they're injured on municipal land, and there is no cap. It's what did the lawyers work out in the settlement, or what does the court decide if it gets that far? So we find this really impractical in the relationship between municipal government and state government to provide really excellent, accessible public services. And that includes salt reduction. Our town governments totally agree with the goals and intents of the bill on this program, which is to reduce the impact of chloride on our public waterways, which is to save taxpayers money in purchasing and managing salt. We went through a salt shortage this year, and it really ran up the town highway budgets for a lot of communities. And to save Vermonters money on the damage that chloride causes their personal vehicles and commercial operations. So we totally support the intent of the bill, but find, again, that the protection in the bill is inadequate. It's not functional for how town highway departments and public works departments operate. You may have year round facility staff that maintain public buildings and the space around public buildings. You may have private commercial contractors that respond to annual bids and manage snow removal and sand and salt on roads. And then you may have a public works crew that is seasonal or full time that manages things like sidewalks and wheelchair ramps. So the way that municipalities provide snow removal and salt and fluoride application services is really variable. It changes town to town. It changes winter to winter. And we don't find the really precise coverage in the affirmative defense to be adequate or functional for our communities, which 73% have a population less than 2,500. Most of our town highway departments are volunteers that are appointed at town meeting or elected at town meeting. They may or may not have had the opportunity to take this program or to understand their obligation to maintain this list of records and obligations. But they still want to reduce salt, they still want safe roads, driveways, parking lots, and accessible infrastructure into public buildings. Just want to say, because there was a question about it, so the state created these cash liability caps for the state in 1961. So the state has had some upward limit on their outside liability for these type of civil proceedings since 1961. And then they were raised to the current amount of 500,002 million back in 2011. And really, since then, VLCT has been asking for this broad liability protection for all municipal services and infrastructure. But this amendment for this bill would only apply to participants of this program.

[Martin LaLonde (Chair)]: Other questions, Ian?

[Ian Goodnow (Member)]: Yeah, so there are two municipalities that are not insured through the LCT?

[Samantha Sheehan (Vermont League of Cities and Towns)]: Currently. Or the last time I checked. Which two? I think it's Essex City and Burlington.

[Ian Goodnow (Member)]: And do they have access to be insured through the LCT? Yeah. So just to just to walk clarify, through how this would work. If a municipality gets sued by an individual for, let's use the ICE example, but it's not some gross negligence by an individual employee, but it's just something that the municipality did wrong, They contact you. Your lawyers come in. And then you guys work with the lawyers for the individual who's harmed. And then you guys pay out for whatever the damages are based on the negotiations usually resolving at mediation. And the money that comes into play is from the SAT, not from the municipality.

[Samantha Sheehan (Vermont League of Cities and Towns)]: No. And also, maybe our attorneys are involved in the defense. In one of the cases I discussed, they were. But it depends on what insurance product the municipality is using that's provided by VLCT. Many use a combination of participation in the insurance pool and private insurance and self insurance. And so it depends on the circumstances of the accident, the claim, the location, whether or not VLCT is the insurer that is covering that incident. And possibly the municipality has outside counsel. Most likely would. VLCTs would participate as needed and support the municipality through either mediated settlement or their defense. And whether or not a settlement or award is covered by the municipality pool is subject to what their insurance is. So for example, VLCT is the only insurer of municipal dams. I think we have something like 28 municipal dams in the state. I think there's some really big important ones like Hydro Dams in Swatten and Lewinsky in the Northeast Kingdom. There is no private insurer that will cover a municipal dam. And the LCT currently offers maximum coverage of $1,000,000 And the insurance pool can deny coverage to specific infrastructure. So if there was a dam failure that caused significant personal and property damage, VLCT would cover $1,000,000 and the municipal general fund would be on

[Karen Dolan (Member)]: the hook for the rest.

[Ian Goodnow (Member)]: Is part of what determines whether VLCT gets involved is the amount of the claim? No.

[Samantha Sheehan (Vermont League of Cities and Towns)]: First of all, I don't work for passive, and I've reached the limit of my understanding of the agreements between the insurance pool and the municipality. But we are insured. So just like I have progressive auto insurance and I pay for a certain amount of coverage that may or may not help me through an accident or a claim, depending on the circumstances. If I was drunk driving, I wouldn't be covered by Progressive.

[Ian Goodnow (Member)]: Oh, then again, you're talking not outside of the gross negligent of an inversion or something like that.

[Samantha Sheehan (Vermont League of Cities and Towns)]: Just Yeah, the but it depends on the insurance coverage.

[Ian Goodnow (Member)]: No, I really appreciate it. I'm just trying to understand it because I think and am I going to testify? My question would be, I'm trying to understand the difference between state and municipality because they're not quite the same because the state is self employed

[Samantha Sheehan (Vermont League of Cities and Towns)]: or self insured. Self insured.

[Ian Goodnow (Member)]: I think when we're talking about something like this, I just want to make sure that I understand we're voting on this, that we understand whose money are we trying to save. Because if it's the municipality, it's municipality. But if it's an insurance company, I think that that changes the calculation, especially when Vermont, the state, doesn't have that kind

[Samantha Sheehan (Vermont League of Cities and Towns)]: of insurance coverage. Well, if you're wondering whose money when we're discussing municipal coverage in the state of Vermont, it's every municipality currently except for two. Burlington was in the pool until, I think, ten or twelve years ago. And the other municipality has, I think, been out for five or six years. Every municipality can go to bid and can determine what is the best for them, whether they should self insure, they should use a commercial insurer, a combination of the two or all three, or join the pool. But VLCT has provided this pool coverage since 1967. So whether or not an incident is covered by insurance provided through passive or travelers or progressive or farmers or whatever or is self insured, the answer is it's the Vermont public. It's the Vermont public's money. Because the VLCT passive pool is money generated by the municipalities which participate in that coverage. The municipalities that self insure, it's their public funds that are generated by the Vermont public. And then if the municipality is using travelers or farmers to ensure certain aspects of the public services and infrastructure they provide, it's municipal revenues that meet those insurance payments and obligations. So I think in every scenario, regardless of what the claim is and whether or not there's a settlement or the award and whether or not an insurance company is involved and if that is the LCT or not, I would say the cost is to Vermonters. If it's difficult to insure Vermont municipalities, which it is, and it becomes expensive, the increase in that rate because of outsized liability to the municipal government falls on Vermont taxpayers, property taxpayers, who feed the municipal general.

[Martin LaLonde (Chair)]: Last question.

[Ian Goodnow (Member)]: Are settlements with municipalities public?

[Samantha Sheehan (Vermont League of Cities and Towns)]: So for any municipality to reach a settlement agreement, there has to be an action of the legislative body, and that action is fundamentally public information. So the decision to accept the settlement agreement and the amount or other stipulations, like there may be an amount paid upfront and an amount paid through some other way, there may be an amount paid by insurance and an amount obligated to the municipality, and then how the municipality chooses to find the revenue and the resources to meet that obligation, all of that information would be public. The details of the claim may or may not be subject to executive session or Public Records Act exemptions. So it fundamentally is public information, and then it goes through the, I don't know, 77, I think, current Public Records Act exemptions. And there may be protected private information that is a central component of the claim in the settlement agreement. And of course, anything that goes through court, any court like the affidavit that is filed or originating complaints that go before the court. All the court records are public. So the example I used with the $9,100,000 settlement, I know the settlement amount because that's public, the Municipality is Brandon. And the initial claim was filed and was public.

[Ian Goodnow (Member)]: Is it possible to create a list of settlement amounts for municipalities for the last fifteen years?

[Samantha Sheehan (Vermont League of Cities and Towns)]: I mean, for someone. Yeah, in theory, could seek fifteen years of public record documents from two fifty one municipalities and over 200 villages and every court system and could put that together.

[Ian Goodnow (Member)]: And just last question. A Is there any settlement with a municipality, the amount is non disposable?

[Samantha Sheehan (Vermont League of Cities and Towns)]: I don't think that's fundamentally possible because all components of municipal revenue setting, appropriations, expenses, unassigned funds, and assigned fund balances are all, in all cases, subject to the authority of the voters. It's slightly different in Burlington under their charter, but they have no special exemption to hide money from the public. And there's good evidence of that. Every municipality has annual audit obligations under Title 24. All municipalities are subject to Public Records Act and open meeting law. So I don't think that a total settlement amount could be reasonably asked by the claimant to be kept private because the municipality has to find the money. Even if an insurer is covering the total award, like, say it's $25,000 for slipping and falling in a parking garage and travelers for Burlington says, we could go to court for $25,000 on your behalf, or we could settle for $25,000 and travelers will be paying that under your coverage. The municipality, the city council in Burlington still has to accept that decision.

[Ian Goodnow (Member)]: In executive session?

[Martin LaLonde (Chair)]: No.

[Samantha Sheehan (Vermont League of Cities and Towns)]: So the way that Public Records Act works is that the action is not protected by executive session. The action is recorded in the meeting minutes and is subject to discussion. I think you've been in executive session before, so you either come out and you say, executive session ended at 11:15 with no actions taken, or the executive session ended at 11:15 with the action, and it's reported.

[Martin LaLonde (Chair)]: Okay. That's really helpful. I was

[Ian Goodnow (Member)]: just trying to understand if there's any. So if we were to go and look, we could see all and that there aren't any that are going to be not disclosed so that if we wanted to, if we could look and see in the last fifteen years.

[Samantha Sheehan (Vermont League of Cities and Towns)]: I think if it were to be protected, that would have to be a decision on the court. The municipality has no authority under state law to conceal financial information from the public.

[Karen Dolan (Member)]: Yeah.

[Ian Goodnow (Member)]: Yeah. That makes sense.

[Samantha Sheehan (Vermont League of Cities and Towns)]: Yeah. Alright.

[Kenneth Goslant (Clerk)]: Now, Tom, it

[Thomas Burditt (Vice Chair)]: seems like I just walked in. I've been I was listening on YouTube since the beginning. I think I think I heard you say on YouTube that the the league has been working on a $500,000 cap for a couple years.

[Samantha Sheehan (Vermont League of Cities and Towns)]: I think at least since 2011. I mean, yeah. The so the state So state law changed

[Thomas Burditt (Vice Chair)]: A cap on all claims or a cap on what we're talking about here with this bill?

[Samantha Sheehan (Vermont League of Cities and Towns)]: On this specific type of liability under tort law. And so the state law is 12 VSA 5601. So that law was passed or changed to create a cash liability cap for state government for tort claims in 1961. The league became to exist in 1960

[Thomas Burditt (Vice Chair)]: you're looking to match that for the

[Samantha Sheehan (Vermont League of Cities and Towns)]: And this amount of 500

[Thomas Burditt (Vice Chair)]: This has been a fifteen year

[Michael Boutin (Former Barre City Councilor)]: battle, I guess you could say. At least.

[Thomas Burditt (Vice Chair)]: As far as I go.

[Kenneth Goslant (Clerk)]: Okay.

[Thomas Burditt (Vice Chair)]: No. No. That's good to know.

[Samantha Sheehan (Vermont League of Cities and Towns)]: Yeah. And

[Thomas Burditt (Vice Chair)]: and I just wanna say when representative Goslant was, you know, talking about, you know, a a being capped at 500,000, you know, with a head injury type thing or it could be more than a head in something different than a head injury. That's that's a concern I have also. And and and with representative Goodnow's questioning, so Brandon had a 9 was it a $9,300,000 claim on something for

[Samantha Sheehan (Vermont League of Cities and Towns)]: 9.1 and 6.6 was paid immediately. How much was? 6.6.

[Thomas Burditt (Vice Chair)]: K. So if the league had been successful at some point over the last fifteen years for that $505,100,000 dollar cap, would that claim have been only $500,000

[Samantha Sheehan (Vermont League of Cities and Towns)]: Again, it depends. It depends on whether or not the municipality was using the passive insurance pool. Some don't, depending at the time.

[Thomas Burditt (Vice Chair)]: If they're in the lead pool, would that claim have been capped at $500,000

[Samantha Sheehan (Vermont League of Cities and Towns)]: It depends on the claim and it depends on the coverage at the time of the incident. The league may cover So it's just like your car insurance or your home insurance. My home insurance coverage covers up to $750,000 which is way, way, way more than the cost of my home. I'm like, if my

[Thomas Burditt (Vice Chair)]: So the lead coverage

[Samantha Sheehan (Vermont League of Cities and Towns)]: So it depends on what maybe. It depends. So the example I used was a dam. So the lead covers up to 1,000,000. That's one component of our coverage that I know. So damage is up to 1,000,000. The payment would come from the lead damages. Over 1,000,000 would come from the municipality in the case of a dam failure or infrastructure issue.

[Thomas Burditt (Vice Chair)]: Okay. Okay. Look. I'll go back to that 9,100,000.0. The the league potentially would cover part of it. The municipality would be responsible for the rest of it. Would that would they have an additional insurance rider to cover that? Or would

[Samantha Sheehan (Vermont League of Cities and Towns)]: They they could they could have a self they could self insure up to a certain amount as well.

[Thomas Burditt (Vice Chair)]: This is a big issue.

[Karen Dolan (Member)]: Yeah.

[Thomas Burditt (Vice Chair)]: And it may be a noble issue, may not be. I I don't have enough information. And and to me, with the the the short amount of time we're gonna be spending on this as an amendment, I don't I don't think it it that's it enough for me to to support the amendment. I don't support the bill. I I could have supported the bill if we copy and pasted New Hampshire's the way New Hampshire does, and I had no problem at all with that. But this is this is a bigger issue than for me, it's a bigger issue than just an amendment. And and a big reason is is what you said has been a fifteen year struggle, I guess you could say, for the league. And and I and I'm pretty sure once this leaves us that, you know, we're gonna be taking a straw poll, I think, on the amendment, and it's gonna go back to environment. This again, this is a big insurance issue, and this isn't I don't see this as our purview in judiciary. And as a stand alone bill, maybe we would look at it, maybe we wouldn't. It would definitely go to commerce because commerce is the insurance committee and and seeing how the league again, this is just the way that I think and seeing how the league is so involved. I think it's a GovOps bill too or GovOps amendment. And and and I I I can't support the the amendment because it's it's bigger than the time we're gonna have to spend. Just is it justifiably a bill for next year? Absolutely. Absolutely. I think it's a bill that needs to be submitted and and and then go through the, you know, a minimum of what I could see of three committees. And and again, representative Goodnow brought up some information of 15, looking back fifteen years, we aren't gonna do that in the next twelve minutes. And it's legitimate question that's gonna take a lot more time to hatch out.

[Samantha Sheehan (Vermont League of Cities and Towns)]: I want to respond to that really briefly. You talk about the New Hampshire program. New Hampshire has a cash cap for municipal liability in tort law for the state of New Hampshire, as do all states in New England. Some of them go as low as $100,000 and most are significantly older than the current cash caps for state government. So again, this change is very discreet. It only applies to the circumstances of this program having to do with chloride application. So if a municipality is in the program, if they reduce salt, if there's a claim, and if they're unable to utilize the affirmative defense, then the $500,000 cap would apply. This would not change tort claims liabilities for municipalities in all circumstances, although we certainly advocate for that. And there is a bill introduced to this committee last session, Bill H-one 138, which would make that change that would again be totally consistent with the state's protection, which is $500,000 and $2,000,000 per incident. So I think Connecticut is $100,000 Yeah, I think Connecticut is the lowest, and I think Maine is the highest at 500,000. Yeah.

[Thomas Burditt (Vice Chair)]: I mean, as far as h one thirty eight goes, any insurance bills we've ever taken up in here have spoken against us doing it because I don't look at us as the insurance the insurance committee. But I I again, I I I think it's a bill for next year and and not spending such a short amount of time as an amendment.

[Samantha Sheehan (Vermont League of Cities and Towns)]: I guess I'll just conclude my testimony, unless there's more questions, by saying the state of Vermont enacted this protection for itself in 1961. And when the science about the impacts and the negative impacts on Vermonters and Vermont's environment about chloride became clear, VTrans was able to work under that protection and create a program for VTrans to reduce its chloride application. The state of New Hampshire has had that cash liability cap in place for, I think, just as long for both municipal and state government in New Hampshire. And that's a big part of the success and the uptake of municipal applicators in New Hampshire. If you support the intent of the bill to reduce chloride application, including by municipal applicators who maintain more than 4,000 miles of Vermont public roads, that doesn't include sidewalks, it's, I think, two thirds more than state maintained roads and highways, then if you want municipalities to use it, the Booten Amendment would make it possible for them to do that. Without that amendment, each select board will have to make a careful decision about whether or not it wants to adopt the cash risk against the municipal general fund and their municipal taxpayers, or if they want to accept that risk and participate in the program and reduce SALT application. So that's the choice. And like I said, VLCT is really unable to support the program without this amendment. Otherwise, we would be really happy to because we certainly share the goals of the Environment Committee in putting this together. So

[Martin LaLonde (Chair)]: we're going go to Chris Malay very briefly, but also just to follow-up on what Tom was saying. The $500,000 limit exchange with regards to that, it either left me very concerned that somebody is not going to get full payment for their injury or just confused by how it was explained of who was paying for whom, and that this really is an insurance issue that probably commerce will need to dig into. But we need to go to Chris Malay very quick. Thank you very much for the testimony. Thank

[Chris Maley (Attorney, personal injury)]: you, Mr. Chair. I appreciate the opportunity to speak in opposition of the bill, and I did hear the brief part of your comment and I will try to be brief. I think what was lost this morning and what we've talked about is people impacted by catastrophic injuries. I represented the person in that Brandon case. I represented Kate. And what happened in that case was that the town allowed an ancient lamppost to basically be rudderless. It rotted away to the point that it was, not stable at all. It was basically just not even attached to its base. So they, it hadn't been inspected or looked at it, it had rusted out from inside. It allowed that to happen over a period of time. And then at some point they said, we're going to fix the base before they fix the base without warning the public lamppost falls on top of Kate. Kate is rendered a paraplegic. Kate had a life that was dramatically changed at the age of 30. She had significant needs in order to live her life with any dignity. She couldn't go to the bathroom on her own. And so what happened was I brought a claim against the town of Brandon. Brandon hires an attorney. The attorney defends the claim and says, hey, there's things called qualified immunity. There's conservative juries in Vermont. We have some defense to put up, but ultimately they determined that yes, it was their negligence. It was the folks that were in charge of keeping the public safe that didn't do their job over a long period of time. And someone got catastrophically hurt. And so then there was this mediation that occurred. There was back and forth and insurance money was paid, not a nickel from the town. There's all this idea of finding dollars, more town finding dollars. Brandon did the right thing. They paid the premiums they needed to pay through the league. And then when it's awful, awful thing happened, they took care of the person. And had they not, had there been this $500,000 cap, I would have told Kate, hey, I can't represent you. Your medical liens are going to swallow whole your recovery. There is no claim to be had here. Good luck. And then this idea of who eats that loss, where do those harms go? They go back to the public coffers. We're talking about the safety net. We're still talking about taxpayers paying for this harm. We're not going to leave her on the street. We're going to take care of her some way, but it's going to be this, the public safety net, not travelers or not, you know, any major insurance carrier who does this. So this idea that a big claim, yes, 9,000,000 plus that's a lot of money that happens once in a, you know, a gazillion years. And I heard representative Goodnow saying, Hey, let's look at the stats. Let's, let's look at the settlements. This was a really, really outlier kind of case that doesn't happen very often, which is the very reason for insurance in the first place. We do it in towns and we say we're going to take care of our neighbors. If something awful happens, we will have your back. This $500,000 cap removes that idea altogether so that a town can act in negligent way and say, tough luck, you have no recovery here. That could be a child, That could be an elderly person. And so I think we just got to think about what's broken here. What's broken in that Brandon case. Brandon's a beautiful town now. Look, did, they renovated the town. No one's bankrupt. They're doing quite well. They use the insurance they had after having able counsel defend them. The system worked in that case and it continues to work. The reason the law hasn't changed is because it's not broken. I didn't hear anything about specifics cost savings based upon insurance premiums going down, based upon payments in Vermont. We all know that Vermont, incredibly conservative juries, modest outcomes. There aren't these runaway numbers. So I I I don't see the proof that this bill is necessary in any real way by cost savings. And in fact, what would happen is that some people like Kate, would get left in a really, really awful situation. As far as the state's $500 I don't have or $500,000 cap, I believe that there's insurance in addition to that in certain instances that the state purchases and and has, and that can be looked at. So it's not as quite as clear as described, but municipalities have defenses to to break in claims. There's still the idea of qualified immunity, which is raised, you know, for agents of the the town, whether they're acting in a discretionary function or a ministerial supreme court case of 2020, Sevetti versus Turner still has that alive and well for municipalities. It's brought up in most cases against municipalities. So I'm happy to answer anybody's questions, but I know we're out of time, but if anyone has any questions about that case involving the town of Brandon or any other claims, I'm available. Thank you. I appreciate the Any

[Martin LaLonde (Chair)]: questions for Chris? Yeah. Angela?

[Karen Dolan (Member)]: Just a a I didn't want

[Samantha Sheehan (Vermont League of Cities and Towns)]: I had a question written down, and then I had to run out and take a phone call.

[Karen Dolan (Member)]: So if it was but I but I

[Samantha Sheehan (Vermont League of Cities and Towns)]: hear you but you made the point that I was going

[Karen Dolan (Member)]: to ask the question about. So I wanna make sure that it that it's clear that it seems like a maybe inaccurate to say that municipalities have to find the money because isn't that how insurance works? That's right.

[Chris Maley (Attorney, personal injury)]: Yeah. That's exactly right. The the the money that we're talking about, I believe, would be that the towns have to pay premiums. And I don't know the the statistics on what's happened with rates, but those insurance rates and premiums are often driven by numbers other than payouts and liability claims. That's what I'm saying is where, and I think representative Goodnow was touching on that. You know, are the companies coming and saying, hey, all these crazy verdicts and numbers in Vermont, we have to increase premiums. I haven't heard that. And just anecdotally being in this line of work for thirty years in Vermont, I don't believe that that's true.

[Karen Dolan (Member)]: Thanks. Yes. And I asked this earlier. You also mentioned the negligent piece of it. So just to confirm, if this was to pass, it there isn't an exception for negligent or reckless. Like, that would be included in these caps as well.

[Chris Maley (Attorney, personal injury)]: I that that's that's my reading, and and, my reading is that there's some suggestion that this or there there's a description of this affirmative offense being a nothing. I'd and any attorney can get around it and it's not really that effective. Well, it's a problem for bringing a personal injury claim. That's for sure that you have a a presumption that the standard of care was met by X, Y, and Z conduct without even going into discovery or finding out what's what. So that's a problem. But yes, that's that's my interpretation of it. I I see that cap as a cap on these claims and then I've heard that there there the hope is to have a cap on all claims. And that's going to leave folks like Kate without any ability to access insurance money. We're not talking about municipality general fund money. I'm talking about insurance money that the Vermont League of Cities and Towns has provided for a very long time.

[Martin LaLonde (Chair)]: Yeah, just to put a lid on that one, a question for Michael Grady, that it seems to me just reading this amendment, that if the affirmative defense doesn't apply because it was gross negligence, the cap would still apply, even if it's gross negligence.

[Thomas Burditt (Vice Chair)]: Yes, and I think the reference before is that the municipal need to represent the employee does not apply when the municipal employee is acting outside the scope of their employment. But you can have gross negligence and opinions within the scope of your employment. So the language as it's drafted would have the correct language. Yes.

[Martin LaLonde (Chair)]: Well, yeah, one quick question.

[Thomas Burditt (Vice Chair)]: I was going to ask it before then Christopher kind of brought it up, it's a question for Samantha is the savings. How much savings would there be as far as insurance premiums go by capping this?

[Samantha Sheehan (Vermont League of Cities and Towns)]: I mean, Samantha Sheen, for the record from BLCT, I think that is a question better posed to an insurer. I mean, way that the insurance premiums are set and adjusted over time are the result of a complex assessment of the outstanding liabilities and the real payments. Just like if you get in a car accident, your premium goes up. If a bunch of awards are made across Vermont that cost the pool substantial resources,

[Kenneth Goslant (Clerk)]: then

[Samantha Sheehan (Vermont League of Cities and Towns)]: their premiums may go

[Ian Goodnow (Member)]: up. Right, right,

[Thomas Burditt (Vice Chair)]: yeah, with that, to me, all the more reason that it needs more vetting as a bill, because that would be I have to assume that would be a question that would come, it would be a question that I would ask if we had, you know, of a witness and then the information could be found out, so thank you.

[Martin LaLonde (Chair)]: Okay, thank you. I will take a motion to find the amendment for the various reasons that Thomas articulated well, to find the amendment draft number 1.1 to s two eighteen unfavorable. So moved. Second. Second. Okay. All those in favor of finding it unfavorable, meaning that no. Yeah. Raise your hand. And coach, are you going to weigh in on this, are you with us?

[Thomas Burditt (Vice Chair)]: A straw

[Michael Boutin (Former Barre City Councilor)]: It's just a straw

[Martin LaLonde (Chair)]: yeah he can, that's fine. All those against? You're for or against? You're against. You're for being unfavorable. Yes. Yes. Okay. I thought you asked the same question again.

[Samantha Sheehan (Vermont League of Cities and Towns)]: The people who work in municipal government.

[Martin LaLonde (Chair)]: Six two five think the amendment. Six two three.

[Chris Maley (Attorney, personal injury)]: Did did you get did you get my other one?

[Martin LaLonde (Chair)]: I'm sorry. I didn't hear. Where where, where are you on this couch?

[Chris Maley (Attorney, personal injury)]: Against the amendment.

[Martin LaLonde (Chair)]: Against the amendment, okay. 722. Alright. Alright, thank you everybody. I think I need the the

[Thomas Burditt (Vice Chair)]: committee