Vermont Legislature SmartTranscripts:

[Sen. Nader Hashim (Chair)]: We are live. Alright. Good morning. We are in senate judiciary on February 10 at 10AM. We have Ben Brickner here to talk about s one fifty one, which was a bill that we initially took up last year. We had a walk through, but it's been a year. So if Ben can provide us somewhat of a refresher as to what the issues are and what problems this bill proposes to fix, that would be super helpful. And I know you have general testimony as well and but yeah, the floor is yours. You wanna also introduce yourself?

[Benjamin Brickner]: Sure. Yeah. Thank you. My name is Benjamin Brickner. I'm a Pompah resident, member of the Pompah Select Board. I'm also a recent former member of the board of a local daycare in Woodstock. I have I have a short oral statement that I would like to read or paraphrase from. I'm also submitted a letter to your committee that covers a lot of the same ground. I think it will lay out the bill and explain its motivation and its mechanics. So I hopefully covers the ground here you're looking for and we'll then be happy to answer questions after that point as well. It's it's a fairly simple piece of legislation as these things go. But thank you for the time this morning and the opportunity to testify on senate bill one fifty one. For transparency, I'm not a defendant in any current lawsuit. I am and my government service on the select board includes a stipend that were modest, would exceed the de minimis threshold that in the bill. So I wouldn't benefit from this legislation personally, but it's through my observation of others experience that has convinced me there's a gap in Vermont's civil court procedure, a gap that s one fifty one is intended to address. And that is that individual volunteers are too often named as defendants personally in lawsuits, not because of anything they've done, not because of their conduct, but to gain settlement leverage over the organizations that they're serving. And in many cases, these are friends or neighbors who simply stepped up to serve the organization, to break out playground mulch, to organize bake sales, and have found themselves needing to fend off strategic litigation. And while many nonprofits do carry insurance coverage is not universal. As I've discovered, it only addresses financial costs, not the risk, the reputational or emotional or time risks that long drawn out litigation can entail. Several acquaintances of mine who have been named in or threatened with lawsuits. I believe some have in fact submitted comments on the bill to your committee. They've told me in no uncertain terms that they will never serve on another nonprofit or local board again, not for lack of commitment, but just because of the cost they fear the consequences. And what struck me most through these conversations with these individuals that I know personally is that many didn't even think to ask about insurance coverage. They were asked to volunteer, they raised their hands, they volunteered, and then in many cases found themselves signing up for a lot more than they bargained for because the organization ended up in a lawsuit or threatened the one. I think this is a solvable problem. Vermont already protects speech from meritless claims through an existing law that discourages strategic lawsuits against public participation. These are known as SLAP suits. But it does not protect essential volunteers from the same type of bad faith litigation. And this is what led me to work with my hometown senator, Allison Clarkson, to develop the bill before US 151 because why should Vermont's volunteers stand alone? They do indispensable work in their communities, and inherent in volunteerism is a freedom to associate with organizations that are aligned with our values, the freedom to express ourselves through that association. And when litigation chills that willingness to serve, we don't just lose volunteers that Vermont depends on, but we lose the institutions and the freedoms that define us. So the bill itself is simple. It's modeled directly on Vermont's existing anti SLAPP statute that's title 12 VSA section ten forty one. It's also aligned with the existing federal Volunteer Protection Act of 1997, and it's been drafted with assistance of your legislative council. It would extend the volunteers the same protection that are net that is now enjoyed by public speakers. So a defendant sued for their volunteer work would be able to file a motion to strike in the civil court to have the claims against them reviewed quickly and stricken if found to be without merit, thereby avoiding the full extent of traditional litigation. And if the defendant prevails on their motion to strike, the court may then award reasonable attorney's fees and costs, creating a further disincentive to weaponize in the legal system. And that's really it. That's the bill. It's not immunity. It's just a procedural mechanism that intended to protect well meaning volunteers and to discourage misusing Vermont's legal system. The courthouse doors remain wide open to litigants with colorable claims, but those without merit can be quickly resolved so that volunteers can serve our communities for that reservation. The bill does include other safeguards that mirror the anti SLAPP law. The motion to strike would not be available to defendants who have engaged in reckless behavior or grossly negligent or intent or their misconduct is intentional. Criminal charges are also outside of the bill and not included. So why why does this matter? Why is this worth taking the time to consider? In my view, it's because volunteerism in Vermont is not optional. It's fundamental to who we are, who the state, what the state is, nonprofits, local boards, social services organizations. They all depend. They would not function without a large quarter of volunteers to carry out their missions. And so this bill, if enacted, would show them that Vermont has their back. So I urge you to favorably report the bill and I'd be happy to answer any questions you might have.

[Sen. Nader Hashim (Chair)]: I think my initial question which I then answered by just reading the next part is on page three regarding the stay for discovery starting on line four. I think it was kind of what if there is discovery that would show that a defendant was acting outside the scope or they were being reckless and so on. And then I see the next part down is that for good cause shown, the court could order limited discovery. That's right. And so that would be so with the order of operations be a defendant saying, I have nothing to do with this. I'm just a volunteer filing their special motion to strike. Then the plaintiff's saying, well, actually, we think you did do x, y, and z that caused, you know, an injury of some sort and spelling that out in a response or a motion to show good cause that more discovery has to be provided to the plaintiff, and then the court can make that determination?

[Benjamin Brickner]: That's right. There's a limited opportunity for discovery. It wouldn't be the the full nine yards of discovery. So I I think the simplest case would be individual is sued for their in their roles of volunteer, a covered volunteer, and files a motion to strike. I think in most cases, the motion would be considered on the pleadings. But there are as you've pointed out, there's a opportunity for limited discovery and affidavits that could be submitted for the court to still quickly much more quickly than than traditional litigation just goes of the motion to strike. The goal really is to reduce the risk to a paid volunteer from having to spend months or years worrying about litigation, possibly hiring an attorney if one is not provided to them by the organization sitting for depositions which in the aggregate I think create a very meaningful chilling effect against volunteering if they're not based stands to reason as a general matter but also based on anecdotal evidence I've gathered through acquaintances. It's having a real impact in my community.

[Sen. Nader Hashim (Chair)]: Any questions? I

[Unidentified Committee Member]: don't necessarily have a question, but thanks for being here. I'm sure that you must be aware of something that has happened within your within your town. I just wonder if you'd give us or give me an example of of frivolous litigation without mentioning any names, obviously.

[Benjamin Brickner]: Sure. Yeah. These are the I I think this is a statewide it's a national problem, but it's a statewide problem. So I don't wanna focus too much on any particular litigation for that reason, but also due to the sensitivity of ongoing litigation. But I I will say the genesis of this bill did arise from a pending matter against a daycare, a childcare center in Woodstock on which I was a board member. I was not part of the lawsuit. I joined the board after this file. And the lawsuit is just the latest chapter in a number of actions taken by the plaintiffs against the organization and against the individual, my predecessors on the board individually. And it is now we're now in year starting year five of the dispute and the individuals have been subject to it basically from day one. Some have hired outside their own lawyers. There is insurance coverage. It's not bulletproof. It's not

[Sen. Nader Hashim (Chair)]: completely

[Benjamin Brickner]: comprehensive. And it has caused individuals to decline to serve on that board. It's caused individuals to resign from that board. And it has distracted the organization from its mission, which is to deliver childcare services in the Woodstock and surrounding communities. And there are other examples that I'm aware of, but I have direct knowledge of the one I just described, but there are others in Woodstock and farther afield where lawsuits have been filed or threatened to be filed against organizations and the individuals themselves have been wrong. Because of something they did, but because of their title or in my view because it increases leverage, settlement leverage by reflecting pain on otherwise night person volunteers. Thank you.

[Unidentified Committee Member]: Yeah. Was just curious. Do we know in any of your done research about how often this does happen in Vermont? I know anecdotally,

[Benjamin Brickner]: but When you say that suiting

[Unidentified Committee Member]: What this would pertain to? Yeah. You know, as as a member on the non profit board, I it's always kind of in the back of my head about this, but I haven't heard anything. So I don't know.

[Sen. Nader Hashim (Chair)]: I've not

[Benjamin Brickner]: done that research. I'm aware of two organizations that have been sued and with individuals included, and a third where there is a litigation threat. And that's just within 10 miles of where I live. Okay. So I would imagine there are more statewide. I at the risk of putting her on the spot, paradise is here. I don't know if your organization has any or could do any research on that. The problem certainly feels widespread. I don't have any hard data to modify.

[Sen. Nader Hashim (Chair)]: Can you just remind me what which organization you're from again?

[Emma Paradise]: Yes. I'm with Common Good Vermont, which is the state run program of United Way of Northwest Vermont, and we serve Vermont's nonprofit sector.

[Sen. Nader Hashim (Chair)]: Got it. Okay. Yeah. I mean, we've got plenty of time. Do you wanna testify? I know it's on the spot, but

[Benjamin Brickner]: do you wanna

[Sen. Nader Hashim (Chair)]: provide testimony as well? If if you'd like to. Yeah. Up to you. Any other questions for mister Brickman or anything else from you?

[Benjamin Brickner]: I I guess I I would just stress that this is not new territory. There's an existing federal law that is similar. The minority has this mechanism in place for one category of conduct. And so extending it to volunteers, I think is natural extension. So I don't feel the committee would be breaking significantly ground if you were to pursue this. I think it covers an important need because Vermont like, I think more than many other states really does run on volunteers. And if folks stop serving their communities, the fabric of our Vermont, fabric of our communities will really be

[Sen. Nader Hashim (Chair)]: will really be harmed. And actually, I do have one last question. You know, I'm I'm curious as to what I mean, we're gonna try hearing from other folks as well, but I'm curious as to what you may think opposition may be to this or what what you've heard, if anything.

[Benjamin Brickner]: I've I've never heard any opposition. Do I thinking about, you know, coming up with responses to likely counter arguments. I suspect you may hear feedback from the plaintiffs bar that this is closing the courthouse door to meritorious claims. I don't think that's I don't think that's a valid criticism. You've identified the the protections already. Some of the protections there, you know, gross negligence and other other types of serious misconduct are excluded. There's a limited opportunity for discovery. I see this bill not as closing any courthouse door or even really nudging it closed, but rather just leveling the civil court playing field so that individuals who are not well resourced, who can't win a battle of litigation attrition, have a fighting chance to continue serving their communities. Another concern that came to mind is that the anti SLAPP law has constitutional concerns on both sides. You've got the right due process, jury trial, and the free speech that's protected by anti SLAPP. Here though, I think there's a constitutional concern in the right to associate, the right to volunteer, the right to align yourself with organizations whose missions you agree with. That is in addition to the general interest in allowing our volunteers to

[Sen. Nader Hashim (Chair)]: do their good work.

[Benjamin Brickner]: And so I think if there's a constitutional question, it is not as I think the risk there is pretty limited. Thank you. Thank you very much. I really appreciate the time. Yeah. And if

[Sen. Nader Hashim (Chair)]: you could just introduce yourself one more time just for the record, please.

[Emma Paradise]: Yes. Good morning, Hoodie. My name is Emma Paradise. I'm the co director of Commons of Vermont, and we're a statewide program of United Way of Northwest Vermont, and we serve Vermont's nonprofit sector. We have 200 members, but we serve all nonprofits in the state regardless if their members are not. And we are also a member of the National Council of Nonprofits, which is a sort of the state national nonprofit association. So they do a lot

[Sen. Nader Hashim (Chair)]: of better work.

[Emma Paradise]: And I appreciate that you're bringing this to my attention last week. So I've been doing a little bit of research at Dungeon Soft Outreach to our members around this issue and waiting to hear back from folks. But just based on what I've heard over the years, I think there could be opportunity for this to provide additional protections for our volunteers. Right now, volunteerism is especially formal volunteerism in the state has been on the decline even though Vermont's still one of the strongest states when it comes to volunteering. I think there are certain sub sectors where this could be particularly impactful. I think of volunteer opportunities working with youth, volunteer drivers, those delivering meals where there may be opportunities for gaps in insurance coverage or the like. And those are very essential services that they really rely on volunteer drivers to make those programs happen. I haven't heard back yet from anyone who has a specific example of this, but I hope to hear back in the coming week and certainly update the committee on that. But I think we would definitely support this for any additional level of protection and just expediting the process. As mentioned, spoke to this. Litigation is costly. It's harmful to funds replication. And I think we have folks here in the state that are ready to help out and serve their communities, but we should support them in doing that.

[Sen. Nader Hashim (Chair)]: Are there any parts of the language that you have in front of you that you think needs to be changed or anything along those lines?

[Emma Paradise]: I think the way it reads I'm not a lawyer. But my understanding and I did share this with the National Council of Nonprofits and they've been identified their lawyers, and they said it seems to align with the Volunteer Protection Act. And they would support it as well.

[Sen. Nader Hashim (Chair)]: Ben, I've got to ask you this question as well, but do you have any thoughts on any parts of this that you think need to be edited or changed around

[Benjamin Brickner]: at all? I do. There there's one part that that does need to be edited. When this was introduced last April, there was some, I'd say optimistic sense

[Sen. Nader Hashim (Chair)]: that it

[Benjamin Brickner]: could be enacted in the first year of biennium. And so in section three on page five, it it calls for a report in July 2026. I would push that out at least to July 2027. I bumped into senator Clarkson in the hall on my way to testify this morning. We were discussing the bill and she felt that the de minimis exemption might actually be too low and that the committee might consider raising that. The number comes from the Federal Volunteer Protection Act, but it's the act of 1997 and that number hasn't changed. So I think an argument could be made that the number could be inflated to $20.26 dollars.

[Sen. Nader Hashim (Chair)]: The 500? Yeah. The 500. Yeah.

[Benjamin Brickner]: The the the point of that is to not exclude someone on the technicality of getting, you know, a $50 per meeting stipend for quarterly board meetings, but to exclude someone who is a professional staff member or director for hire offer a nonprofit. But those are the only two changes that come to mind is it in the letter I submitted to the committee as an attachment. The attachment is a red line of the bill as introduced against title twelve ten forty one, the anti SLAPP law to illustrate how similar the two are. They're very similar. The mechanisms, their guardrails are virtually identical. It's just a substance. The the actions that are covered and the type of person that's covered that's changed.

[Sen. Nader Hashim (Chair)]: I think the only concern that I would have in looking at page five, line ten, and eleven is the inclusion of a director of a governmental entity. And I'm something I need to look a bit more into just to refresh my memory, but, you know, I'm thinking about when individuals sue the government. If they're suing a government agency, it's generally the head of that agency that is named in the suit. So I think that would be yeah. And and and if they're trying to hold that agency accountable for, you know, whatever perceived injury, that's that's the only concern that I might have. Yeah.

[Benjamin Brickner]: I would think most of my own directors, however, would be highly highly enough compensated to be excluded just by virtue of their compensation. Yeah. They wouldn't be bought wouldn't be quote unquote volunteers. That's definitely I believe that definition comes possibly verbatim from the federal law. I don't have that at my fingertips, but I don't think that was drafted from scratch.

[Emma Paradise]: Imagine related to the director of a how about the board? I think title 11 d. Mhmm. It's director.

[Sen. Nader Hashim (Chair)]: Any other questions or comments?

[Benjamin Brickner]: If I may, one last point I forgot to raise that occurred to me after I submitted my testimony. One benefit this bill may have in addition to the core mission of protecting volunteers is improving judicial economy. Court system in Vermont as most states is pretty backed up and the ability to dispense with claims quickly that are without merit could improve proficiency of judiciary in the state by not requiring them to go through the the full litigation process. I just got a mirror without mirror.

[Sen. Nader Hashim (Chair)]: Yeah. On the other side. Okay. I just much less substantive change that we'll probably make is generally in the Senate, we don't have legislative intent sections or and if we do, they're usually pretty short. So I think section one, which doesn't have any,

[Benjamin Brickner]: which

[Sen. Nader Hashim (Chair)]: is more or less legislative intent is something that would likely get taken out. Just so that you're aware.

[Benjamin Brickner]: Yeah. Understood. I believe that I believe the anti slap log, which is twenty years old, originated in a house. It's with a lot of house. And so the which I think did have intense section that maybe how this

[Sen. Nader Hashim (Chair)]: might end up with this Alright. Committee, anything else for witnesses? Good. So we'll try hearing from a few other witnesses if we can find any. And then, you know, we'll hear from the Legion Council again probably sometime next week and then see if we wanna do any markup on this bill and then get a gauge of how the committee's feeling about it and then potentially move forward. But, yeah, that's that's a that's a good rundown of everything that's that that we're planning, and and thanks for bringing us up to speed on the bill as well.

[Benjamin Brickner]: My pleasure. Thank you very much. And I'm happy if you have questions that come about today or if you were looking for someone else to speak to this from my community, I'm happy to help coordinate or point them in your direction.

[Sen. Nader Hashim (Chair)]: Yeah. Sounds good. Thank you. Alright. Thank you. Absolutely. We we can take a break until 10:30. We'll come back and hear about