Vermont Legislature SmartTranscripts:

[Cameron Woods, Office of Legislative Counsel]: We're back in the senate judiciary on April 30.

[Sen. Nader Hashim (Chair)]: We vote walk through slash markup of seven seven two. We have led to counsel here. Good morning for

[Cameron Woods, Office of Legislative Counsel]: the record. Cameron Woods, Office of Legislative Counsel. Still looking at draft two ninety one of seven seventy two. I believe it was yesterday morning we kind of walked through some of the changes that you have here and based on our conversation I didn't have any changes to go back and make immediately at that point. There are a few minor language words, phrases that I'm gonna connect with Michelle Childs on. If you remember, I mentioned there's the word perpetrator, in the bifurcation of the rent agreement and I wanted to check on whether that was the correct term of origin in that context and so I'm going connect with her today so I may have a few minor language tweaks to make based on the next version when you want to take this back up, but I haven't made any changes based on our conversation from yesterday. And I think some of the pieces I'll share my screen and pull the document back up just as a quick reminder of some of the changes that we were discussing were in the termination section, terminating a rental agreement. We were having a conversation about this change in the Subdivision B2. Know, it was ongoing and repeated spread, now it's ongoing threats. There was discussion there and then there was also some discussion about, you know, is it appropriate to use the term protected tenants here on page eight? Can it just say tenant? And so I've had some I've done some a little bit of reviewing. I was going a little bit back and forth of whether protected tenant or tenant makes the most sense in this context. I was leaning towards protected tenant, but I did communicate with the network, and they're okay with going with just tenant in this section and I I agree that I think that that's okay. If you want to just reference tenant and you're supposed to protect them, I don't think there's any legal concerns with going that route and it would make the section read correctly

[Sen. Nader Hashim (Chair)]: if

[Cameron Woods, Office of Legislative Counsel]: you did that. But again, it's a policy decision for you all of whether or not you wanted to say protected tenant because that's the tenant reference bullet. Sorry, what was it?

[Sen. Tanya Vyhovsky (Member)]: So what I'm understanding is from a policy standpoint, tenant versus protected tenant doesn't really change anything. But protected tenant is clearer because that's the language used elsewhere.

[Sen. Robert Norris (Vice Chair)]: It could be. On page two, you have the definition. Protected

[Cameron Woods, Office of Legislative Counsel]: tenant has

[Sen. Robert Norris (Vice Chair)]: the same meaning of the section 4,471. Is 4,471 exclusively limited to protections around stalking domestic violence, etc. So as we talked about the

[Cameron Woods, Office of Legislative Counsel]: other day, I'm just pulling it back up so I can reference back to it. Yes

[Sen. Robert Norris (Vice Chair)]: sir.

[Cameron Woods, Office of Legislative Counsel]: When you look at that sub chapter the current section of what they're related to is it gives protected tenants the rights to terminate rental agreements when there are instances of domestic abuse sexual assault stalking etc It gives them the right to request changes of the locks of the dwelling events and then it has confidentiality provisions.

[Sen. Robert Norris (Vice Chair)]: And then all of those are referred to

[Cameron Woods, Office of Legislative Counsel]: as protected. In that sub chapter there's a definition of a protected tenant and then it's used throughout that sub chapter and protected tenant is defined as a victim of abuse sexual assault stalking or parent boss or parent legal guardian caretaker with partial physical custody of the victim. So that's the term that's used throughout, and as I mentioned, I'm adding in the section down here in subchapter four to authorize the bifurcation of a rental agreement. So when you look at that section on page 14 of the draft, it has to refer to protected tenant because that's the language that's used in that subchapter. So then it just becomes a question of up above in the residential rental agreement subchapter what is the proper term to use and it does become somewhat problematic from a wording perspective when you use protected tenant on this page. Because, for example, it says a protected tenant who is the victim I'm looking at sub b here. Right? Protected tenant is the victim of domestic abuse, sexual assault, or stalking. Well, a protected tenant is already defined as the victim. You know? Yeah. So it just there's a little bit of language gymnastics that you kind of have to go through, and if you want to keep it as protected tenant, I would probably have to clean this up slightly to make those words fit properly. Ultimately you could also just say tenant and then we could look at it as if so you don't think tenant who is the big

[Sen. Robert Norris (Vice Chair)]: in other words defining it here second without the word pretend

[Cameron Woods, Office of Legislative Counsel]: Correct, you would be referring to any tenant. Any tenant

[Sen. Robert Norris (Vice Chair)]: who essentially gives the definition again. Yes. So, that gets sent back. It matters as a government tenant. So we're projecting that with tenant section in at the top. This one.

[Sen. Nader Hashim (Chair)]: Yeah. I

[Cameron Woods, Office of Legislative Counsel]: mean, as I mentioned the other day,

[Sen. Nader Hashim (Chair)]: I mean, you're

[Cameron Woods, Office of Legislative Counsel]: you're this this section here, the subdivision's five, it's it's intended to identify that a tenant who is the victim of an incident of domestic reduced sexual assault or stalking cannot have their rental agreement terminated because they're the victim. And then it's in the B here it's signaling in this section you have to authorize someone to bifurcate the rental agreements as the section articulates down below. So you can use protected tenant again to just kind of be consistent in the two sections. I don't think that there's a problem with that. There's just maybe a little language cleanup if you want to go that direction. There was a concern about whether or not as we were discussing last time, there was a concern about whether it's appropriate to use protected tenants,

[Sen. Robert Norris (Vice Chair)]: and I'm letting you know

[Cameron Woods, Office of Legislative Counsel]: if I have people

[Sen. Robert Norris (Vice Chair)]: if you can.

[Sen. Nader Hashim (Chair)]: So, Charlie, not to put you on the spot, I know this is language that is, I believe, originated from the network, right? You wanna provide a perspective on what we're discussing here that might be a help shift for us?

[Charlie Glisserman, Policy Director, Vermont Network Against Domestic and Sexual Violence]: Sure. I'm happy to. Charlie Glisserman. I'm the policy director at the Vermont Network Against Domestic and Sexual Violence. I have reviewed this language, and I do generally agree with Cameron that the policy impact will be the same. If you look at the definition of protected tenant,

[Sen. Robert Norris (Vice Chair)]: the

[Charlie Glisserman, Policy Director, Vermont Network Against Domestic and Sexual Violence]: only thing that is different from just listing a victim of abuse, sexual assault, and stalking is that there is a second line that says, I don't know, Cameron, if you're able to pull it up. Thank you. A parent, foster parent, legal guardian, or caretaker with at least partial physical custody of a victim of abuse, sexual assault, or stalking. So that was the question that I had. If protected tenant is changed to tenant, would that second list of folks be properly covered in the lease bifurcation? Because in the civil definitions of abuse, sexual assault, and stalking, it does often reference household and family members within those definitions. I think largely you would be covered if you use tenant. So to round it out, I don't think there will be a significant difference between the two. I personally think protected tenant is clearer, but I don't have a strong preference between the two.

[Sen. Nader Hashim (Chair)]: I

[Charlie Glisserman, Policy Director, Vermont Network Against Domestic and Sexual Violence]: think if the committee is agnostic about it, perhaps using protected tenant might just be the clearest and most comprehensive option.

[Sen. Robert Norris (Vice Chair)]: So would that be, Charlie, protected tenant and in those sections who is the victim of blah blah blah?

[Charlie Glisserman, Policy Director, Vermont Network Against Domestic and Sexual Violence]: I mean, would defer to legislative counsel. I don't know if that language is needed if the referenced protected tenant is used.

[Sen. Robert Norris (Vice Chair)]: So it seems like we could go either way, but just eliminating the if we use protected tenant, we just eliminate some wording in the next round. So what happens is

[Sen. Tanya Vyhovsky (Member)]: there should be protected tenant as defined in that other person's statute? Yeah.

[Cameron Woods, Office of Legislative Counsel]: I will clean it up slightly and bring it back to you. So if you wanna go and protect the tenant, then we'll make sure the language fits the words that as needed. Okay.

[Sen. Nader Hashim (Chair)]: Let's just stick with protect the tenant for now. If some reason that changes, I do say what time they're 10:50 on zoom. All right

[Cameron Woods, Office of Legislative Counsel]: and then the other the other major change was adding that study at the end and I don't know if you all have had any thoughts that would be hopefully towards the end of testimony from yesterday.

[Sen. Nader Hashim (Chair)]: Rather than study, When we go to the press pass section because I know we spent a lot of time on the bifurcation and the expedited hearing. I don't know that we've had as in-depth a conversation on the press pass to some peace and it's back to their request that we have recommended.

[Cameron Woods, Office of Legislative Counsel]: So this is a quick reminder you have section four, which is a purpose statement stating that the purpose of the next section is to overrule the Supreme Court's decision on State v. Dixon and allow the landlord of the dwelling unit to issue no trespass orders which would prohibit a tenant's invitees or licensees from entering the dwelling units common areas under certain circumstance. Then you get to section five which is the unlawful trespass section in title 13 and you have an addition of a G1 which says that the landlord ought to be served in order against trespass to prohibit the invitees or licensees from trespassing in the dwelling unit or the common areas if the tenant consents for the order, the invitee or licensed subject to the order has violated the terms of the legal agreement, or the invitee or licensee has violated state or federal law while on the premises.

[Sen. Nader Hashim (Chair)]: So that's the information we need.

[Sen. Tanya Vyhovsky (Member)]: Should we leave your number first? I'm that's over. I do. And so I'm it's my question is around what constitutes consent. Could it happen that a landlord puts in the lease that by signing this lease you consent to this type of no trespass or would they have to actually have a conversation with that person about the individual in question?

[Cameron Woods, Office of Legislative Counsel]: I think if the lease agreement said something to the effect of you know, you by signing the lease consent to the landlord issuing an order against trespass to anyone who's violating the lease terms or breaking, you know, filing state or federal law while on the property. And that would probably be how it would be phrased. I don't see any reason off the top of my head that would prohibit a landlord from doing that. I think your question would be, is the tenant consenting at that point? Probably, I would need to do a little legal research to see if that would be a result of order, if that

[Sen. Robert Norris (Vice Chair)]: would be some sort of a loose revision of the contract, know, but I think that Steve would let us continue to enter. Thank you. You. I'm on the proposed section on page 20. That says the purpose of section five is to overrule the Vermont Supreme Court's decision and blah blah blah. I've never seen that before. And I guess what I'm wondering is, is it accurate to say we're overruling them? Because they're the Supreme Court, so it seems like only a higher court can overrule them technically. I mean, we're in effect using our authority to move around their decision. But it doesn't overrule theirs, is that right?

[Cameron Woods, Office of Legislative Counsel]: It does in some sense. So the Supreme Court case in question, State versus Dixon, it's saying that you know there's a common law rule that the tenants who have lawful possession of the dwelling units

[Sen. Robert Norris (Vice Chair)]: I'm not even talking about the substance I'm just talking about the relationship, separation of powers basically and how to refer to it. So we're looking to make statutes that

[Sen. Nader Hashim (Chair)]: avoids their ruling or more

[Sen. Robert Norris (Vice Chair)]: I don't know just I have never heard of the legislature overruling this Supreme Court like they can overrule us because they issue rulings we don't issue rulings.

[Cameron Woods, Office of Legislative Counsel]: Right and you know what I was getting to and my colleague here at the Packard drafted this it was a house bill it was a separate bill that was introduced and then was was brought into July on the house side. So I would potentially defer to him on the specifics of of why he chose that phrasing, but I will tell you that my understanding here is the court's case was based on common law and if you all as legislature want to rule the common law with statute you need to be very explicit that that is what you are doing. But I

[Sen. Robert Norris (Vice Chair)]: would argue then we're changing statute around common law, we're not overruling. Anyway, maybe it's just too much focus on, like, I would react the same way if we said we were overruling the governor's veto or something. It's not really overruling it, it's

[Cameron Woods, Office of Legislative Counsel]: you know. But I think in this context you are overruling it in the sense they base their decision on the common law and you're saying okay that's what the law is based on the common law we're overruling that law with this statutory provision you make the law different based on what we're putting in statute. Yeah,

[Sen. Robert Norris (Vice Chair)]: I'll talk to Eric about it. Think that's, just feels provocative to me when it comes to this, the high court. I've just never heard that way of expressing how we might go around one of their decisions or get what we want in spite of their decision because ruling over ruling doesn't seem like what we do. We legislate and rule on the decisions.

[Cameron Woods, Office of Legislative Counsel]: I have now drafted up similar provisions so the term of order using the proper term you know again I would probably defer to the error on that piece because he's the one that was initially drafted it up but I do know that you need to be very clear if you're wanting to alter what the court has stated here. And so I do think that you are in

[Sen. Robert Norris (Vice Chair)]: a sense over overruling what that decision was. But like with the governor, we override, right? I I just don't. Yeah. Anyway.

[Sen. Tanya Vyhovsky (Member)]: I see your point in that we're not really saying no court got it wrong. We're saying sure that's what you made based on this law so we're going to change the law.

[Sen. Robert Norris (Vice Chair)]: Exactly. It's just not overwhelming.

[Sen. Tanya Vyhovsky (Member)]: Yeah. I do hear your I also feel like I've heard that terminology used before. I feel like misleading as an agitant actually with the e move arms. Everybody comes back to eagle. Everybody comes back to eagle's.

[Sen. Nader Hashim (Chair)]: We can revisit the perfect section. We're not getting stuck on it. Going

[Cameron Woods, Office of Legislative Counsel]: back to page 21,

[Sen. Nader Hashim (Chair)]: well, did you have more to share initially? I know we started taking questions regarding the purpose, but did you have any other information you wanted to raise first?

[Cameron Woods, Office of Legislative Counsel]: I know there's a concern that has been raised about a specific provision and how this would how this subsection G would work in practice Mr. Chair if you want me to dive into that. Yeah okay

[Sen. Nader Hashim (Chair)]: So

[Cameron Woods, Office of Legislative Counsel]: you know my there was some separate language in the new subchapter in a previous version so if you remember as this came over from the house it had a new subchapter about ejectment. And you've removed that new sub chapter in this draft to just go with a new section for the expedited hearing for threatening behavior. One of the provisions that were removed in the previous version was a section that authorized a landlord to issue a no trespass order to a defendant in an ejectment action when the landlord received lawful possession of the property. So you get your writ of possession, you're restored to lawful possession, you can issue an egress pass order to that individual not to come back on the premises. There was some concern about that section being removed and how it interplays with the language that you have here on page 21 with subdivision Chief one.

[Sen. Nader Hashim (Chair)]: Just to lay out the scenario again, just to make sure that we're all on the same page, talk about a situation where tenant gets ejected. At the time they're getting ejected, the landlord also says, by the way, here's a no trespass order, you can't come back. And then another tenant invites the former tenant back in because their question is, what happens there?

[Cameron Woods, Office of Legislative Counsel]: Yes, right. Exactly. That is the scenario that we're kind of discussing. And my understanding from the advocates and the testimony they've given is they were seeking the ability to issue that no trespass order at the point of ejectment and for that individual not to be able to come back on the property even if they've been invited back from another tenant. And as I dug into this, after the concern was raised, the issue is that's the exact scenario that the court ruled that the state versus Dixon. Individual had been issued a no trespass order, they were invited back by a tenant and the court ruled the common law says the individual has to be able to go to the common areas to get to the dwelling unit where an independent who has lawful possession of the property invited that person. This subsection G1 was intended to address that but it says that you can issue the Order Against Trespass if the tenant consents or if the invitee or licensee has violated the terms of the lease agreement or the invitee or licensee has violated state or federal law while on the premise. One of those conditions has to occur first before a landlord would be able to reissue the request pass under chief one. And so the issue came up of the same period identified, and it gets objected. Another tenant invites the person back on. The person comes back, they're going to have to violate the lease terms or violate law before that trespass order that they were issued when the ejectment happened is going to be upheld in court, correct? As we dug into it, and as I read this language, I think the answer is yes.

[Sen. Nader Hashim (Chair)]: With the way it's currently written. The way

[Cameron Woods, Office of Legislative Counsel]: it's currently written. So I think the concern from the advocates within the wait a minute, we eject someone, we don't want them to come back. The issue is you have to balance that with the fact that they've been invited back by a tent. That's the issue under State V. Dixon. G1 says even if they're invited back, you would still have to wait for them to violate a lease agreement or violate state of federal law. And I think the advocates are concerned about that because they want to be able to prohibit that individual from coming back once they've been abducted. They don't want to have to wait for the person to come back and then you violate laws, you then have to be issued another order for it to be upheld in court. And so if you want that to be the policy, then the recommendation that I have would be adding in a subdivision D to this section to allow a landlord to issue the order against trespass if so it would read if the tenant has consented the invitee or licensee has violated the terms of the dwelling of the lease agreement or the guest has violated state or federal law on the premise or if the invitee or licensee has previously been ejected from the premise under an ejectment action of fraud under Title 12 Chapter 169. So I think you would you would expressly need to add in that this section is intended to cover a no trespass order that's been issued to someone who has previously been objected because that's not what the language says. There are any issues around

[Sen. Nader Hashim (Chair)]: freedom of association? If somebody, a tenant in another dwelling in the building wants to associate with somebody who had previously objected. Any thoughts on that or is that kind of doctor?

[Cameron Woods, Office of Legislative Counsel]: No no I think it's a question an open question I would argue. I have not found a court case that guarantees the right of a tenant over an objection of a landlord under say the first amendment to have a constitutional right to have their own guess on the property. That's not what State v. Dixon says, the court case in State v. Dixon is not based on any constitutional rights, it's based on common law and not aware of any other cases and other jurisdictions that would guarantee that you know a tenant has a first amendment or you know other constitutional right to associate that would override or overrule a landlord's property rights to exclude individuals that wants property that they own. But it's also not, know, yeah, I've got a case, so I haven't seen any argument. So could the argument be made? I think so. Wherefore we land on that, then you know, it's going be a lot court looking into that analysis. But I do think that is one of the concerns that has been raised by the advocates along this process is you are giving the landlord some ability to exclude individuals kind of against the tenant's will if you want. If the tenant wants to invite these individuals on and you're giving the landlord the ability to exclude those people from the property, it has to be one of the conditions that are met violating these terms, violating state or federal law, or again having previously been ejected from the property. But that's the

[Sen. Tanya Vyhovsky (Member)]: arguments that we're seeking. Have a couple of judges, two of which I'm pretty sure are firmly in their wheelhouse, one of which may not be. Her poisons, is there a difference between eviction and ejection? And if so, what does say?

[Cameron Woods, Office of Legislative Counsel]: The answer I have there in this statement.

[Sen. Tanya Vyhovsky (Member)]: Okay, so they're synonymous terms. I just, I've heard one used in some places, the other used in the other, I just want to know we're talking about different things. My second one would be if we added the language that you're talking about, would that So be someone was evicted ten years ago, has gone to treatment, meets someone and is dating someone in the building and they can be no trespassed. Does have to be renewed every day? Well, think the no trespass does, but if the language as proposed says they can be no trespassed if they've been ejected from the premises There's no timing. There's no time limit. So the landlord could no trespass them at any time if they have ever been.

[Cameron Woods, Office of Legislative Counsel]: There is no time conditions on the subtlety as it's currently written. Trying to pull up the trespass section to see if there is anything in 3705.

[Sen. Nader Hashim (Chair)]: They don't as long. Over camera, just so you know, a minute or two, we're gonna pivot. We'll have to wait for a few minutes on the Zoom, then we'll see what happens. Let look at 3705,

[Cameron Woods, Office of Legislative Counsel]: but there's nothing in sub G, so I think to the point, if you had previously been ejected ten years ago and you were issued the no trespass for the property, presumably that's going to have been last. Last.

[Sen. Tanya Vyhovsky (Member)]: Okay. And then my last question which may or may not be for you, sounds like the chair might have the hangover, is around those no trespass orders and if they are time limited. Do those have to be renewed every six months, every year?

[Sen. Nader Hashim (Chair)]: Yeah, there's a difference between if it's public versus private property, I think. And for one or the other, I can't remember which, it has to be reissued every year. I believe I can't remember off the top of my head.

[Cameron Woods, Office of Legislative Counsel]: I don't recall being a reissue requirement in 3705 at least for private property but I will let me me look into it and maybe look at it itself. Okay

[Sen. Nader Hashim (Chair)]: okay all right so we'll take a break from this for a moment. See how long the next step

[Cameron Woods, Office of Legislative Counsel]: out. Emery, you don't mind letting me know as soon as potential is

[Sen. Robert Norris (Vice Chair)]: back. Thank you.

[Sen. Nader Hashim (Chair)]: We're gonna switch gears back to miscellaneous. We have Dick Hartman from the Human Rights Commission. I believe they made a request to send a speech for defendant. We

[Sen. Tanya Vyhovsky (Member)]: can't hear you.

[Dick Hartman, Vermont Human Rights Commission]: Okay. Can you hear me now? Great. Thank thank you so much for taking some time to talk with me today. I'm sorry I'm not able to be there with you in person, which is always my preference. I believe the committee has the language in front of them.

[Charlie Glisserman, Policy Director, Vermont Network Against Domestic and Sexual Violence]: Is that

[Sen. Nader Hashim (Chair)]: Yes.

[Dick Hartman, Vermont Human Rights Commission]: Right. Okay. So I'll just give you a little bit of information about this, and I'm happy to answer any questions that folks have. This is this bill. This section of the bill would be really an administrative change affecting a small portion of HRC discrimination complaint investigations, and that is cases that the Human Rights Commission is lawfully empowered to initiate ourselves. So we are government agency committed to advancing full civil and human rights in Vermont, and our enabling statute authorizes us to initiate complaints. Although, of course, the vast majority of complaints that we investigate are brought by individual complainants who believe they have been discriminated against. Our office conducts impartial investigations of any complaint that we accept for investigation, And in general, we are fairly constrained by Section 40 five-fifty five in Title IX with regards to the confidentiality of our cases. Now I want to make clear that our confidentiality provisions apply to our disclosure of information related to our investigations and not to the parties' ability to disclose information related to investigations. But the confidentiality provisions that we currently have do severely restrict our ability to make our findings and the basis for our findings known to the public. So, but in a standard complaint that is not initiated by the HRC, what the parties want to do with our investigative materials and our investigative reports is really up to them. We do use this tool that enables us to initiate investigations ourselves infrequently,

[Cameron Woods, Office of Legislative Counsel]: but

[Dick Hartman, Vermont Human Rights Commission]: it is a tool that is very important for certain types of cases that we want to investigate, particularly those where there's a broad issue, you know, a bigger issue than like individual disputes that might impact a larger segment of our community or our population. Sometimes we also have issues with complainants not being able to come forward for a variety of reasons. Individual complainants who must sign and notarize a complaint sometimes are reluctant to initiate a complaint with us based on their fear of retaliation, or there may be other obstacles to their ability to actually get assigned a notarized complaint that are but they are still reporting to our office information that we want to investigate. And so we we do have the ability to initiate those investigations ourselves, and they tend to be related to issues that have a larger impact, public entities, or other larger entities operating in the state. So this is a tool that we intend to use more and more, especially given that the legislature has taken it upon, you know, has gone ahead and expanded our capacity in recent years. We've had additional litigation capacity for our office, and we've increased our investigation capacity in recent years. And we've also seen legislature expand the laws, the anti discrimination laws that we enforce. So we take those changes seriously, and we want to continue to advance full civil and human rights by having, you know, more opportunities for HRC initiated complaints. And our concern is that when we are operating under the same confidentiality provisions as cases that are initiated by individuals, there really isn't the transparency that I think is an option in other types of investigations. Because as the complainant, a member of our staff is not able to disclose the outcome of an investigation or the investigative report under today's, you know, law. So this, you know, small addition to the confidentiality provisions of our statute that I believe you're looking at today would enable us to disclose the investigative report and the determination as a matter of public record in those cases. First, we always are required to engage with informal conciliation and attempt to work out cases that we're investigating, but when we're not able to do that and we end up with an investigative report based on a complaint that we've initiated, we feel that this is a unique situation that benefits the public's interest in seeing civil rights enforced to be able to make those findings public.

[Sen. Nader Hashim (Chair)]: Thank you. Smriti, any questions? Yeah,

[Cameron Woods, Office of Legislative Counsel]: big. So I understand that current law is not allowed do this, and I'm all about the transparency aspect of it. My question would be, so this is just gonna be commonplace now that in all of these cases that you start an investigation on, they'll be released entirely, or you go to pick and choose which ones will be released or not be released?

[Dick Hartman, Vermont Human Rights Commission]: I believe the bill and let me just pull it up real quickly because I have seen a couple different drafts. This makes it that any investigative report that we issue a final determination on will be is can be public. It can be available to the public after the determination has come out.

[Sen. Robert Norris (Vice Chair)]: Okay. Oh.

[Sen. Nader Hashim (Chair)]: Just just to clarify, did did you say that the report will be public or can be public?

[Dick Hartman, Vermont Human Rights Commission]: Let me just see what the language is.

[Charlie Glisserman, Policy Director, Vermont Network Against Domestic and Sexual Violence]: The language

[Dick Hartman, Vermont Human Rights Commission]: is It's available to the public. So that means if I got a public records request, we would be able to share that with the requester, which right now we do not do per So the confidentiality

[Sen. Nader Hashim (Chair)]: you wouldn't be picking and choosing what to publish, but you would have a database. And if a member of the public says, I want this report, you shall make it public, right? Is that what it does?

[Dick Hartman, Vermont Human Rights Commission]: I believe so, yes.

[Sen. Tanya Vyhovsky (Member)]: That's correct.

[Sen. Robert Norris (Vice Chair)]: So just one more question on that same line, Vic. So are you saying that you would not release any results unless the public had requested?

[Dick Hartman, Vermont Human Rights Commission]: I, as we currently handle our determinations, we don't have a practice of posting any determinations up online at all, and we only generally disclose determinations when they're requested by a party.

[Sen. Robert Norris (Vice Chair)]: Alright, thank you.

[Dick Hartman, Vermont Human Rights Commission]: So I wouldn't see that practice changing drastically either way.

[Legislative Counsel (name not stated)]: The billing we just drafted, so this is page one, line 15. The Commission shall make any resulting investigative report available to the public after it's issued a final determination, etc. Shall make means that if the Commission received a public records request, they shall make it public. If there could be some other public records request or public records act protection applicable to part of the investigator report, it does not require some protections. This doesn't not withstand everything else that's currently protected under law, so that is one element that could be at play. But if the Commission receives a Public Violence Act, this requires them to make it public. As drafted, it allows the commission to also separately from a Public Records Act request to make it available in some way. I think it sounds like from the testimony that the commission has a practice related to that, as drafted, the language would allow the commission to do that. So policy decision for the committee, if any of the questions stem from a concern or a desire to handle that differently, that's a function of the language, and there's a way to craft language to only be responded to a public record's request or not, depending on what the intent of the committee is.

[Sen. Nader Hashim (Chair)]: As written now, it is formally responsive to public records

[Legislative Counsel (name not stated)]: of the So it means that if you get a public record of the breast, the Commission has to release it, Not, you know, subject to potentially other objections. Yeah. And if the admission wants to release it or wants to make it available, the language as currently drafted would let them do that apart from a public reference act request.

[Sen. Nader Hashim (Chair)]: So there's

[Legislative Counsel (name not stated)]: a difference between what the admissions practice is related to that versus what the bill language would allow. And abstract it would allow the Commission to do that. So

[Sen. Nader Hashim (Chair)]: that would kind of go to the concept of discretion of the Commission being able to publish something without a record

[Cameron Woods, Office of Legislative Counsel]: of what's being made, right?

[Legislative Counsel (name not stated)]: The commission, it doesn't specify because it allows that, but the language doesn't necessarily require. Because it's available to the public, that's the key language here that's giving some flexibility. If it shall disclose, shall make public, that's the has to release it. This Public Records Act is also a specialty of someone else in legislative council. And so to the extent that committee is interested in refining this, I think I'm happy to take what committee intends to cover and then work with our Public Records Act specialist to make sure that the language is affecting that intent.

[Sen. Nader Hashim (Chair)]: Thank you. Big, I know you have to go here in a moment, but my last question here, it's my preference to make there be less discretion on part of the commission, because I think that could potentially be problematic. I would rather it be a streamlined system where regardless of what the record is, that if there's a request, it shall be made public rather than if there's a request or if the commission chooses or cherry picks. I'm not saying that's what it would or wouldn't do, but I would prefer a streamlined process in the thirty second. Do have left? Can you share with me your thoughts on that?

[Dick Hartman, Vermont Human Rights Commission]: Absolutely. And I think that that's, you know, a policy decision for you all to make. And I think if you wanted to make it more clear for us that you want us to put these investigative reports and determinations like up on our website, that is something we will absolutely operationalize. We don't have that built into our processes right now, partly because of, you know, having an old website and being, you know, and the bandwidth issues of, you know, having to update that every month with new cases. But that is something we could absolutely do if directed to. And I also just wanted to mention that not all cases result in investigative reports. Cases can be dismissed during the investigation. If we find that there's not a prima facie case of discrimination, we do need to dismiss that case under 4,554. And if cases settle, if there's a conciliation, then before an investigative report is done, then that is, by law, a matter of public record, that conciliation agreement. So this is going to be a pretty small subset of our work where we initiate an investigation and complete an investigative report.

[Sen. Nader Hashim (Chair)]: Senator Vyhovsky? Yes. If you have in mind.

[Sen. Tanya Vyhovsky (Member)]: Well, to the Chair's point, and I did say this but everyone wasn't in the room, initially this amendment did include a requirement that the HRC put these in a database, much like the Criminal Justice Council does all the work they do. Through conversation with them, that felt like a bigger lift than was possible in this amendment, and we have agreed to look at that more and come back with that next year. So we did agree with you that it should be much more streamlined and that building that database and the requirements around that database were a little more intensive than should go in the miscellaneous judiciary bill. So we made these administrative change to say you need to release these with the to coming back next year with legislation around that database.

[Sen. Robert Norris (Vice Chair)]: And probably with a personnel request. Potentially.

[Sen. Tanya Vyhovsky (Member)]: And that was some of the stuff we wanted to do. So the criminal justice council has a database that they put all of this forward. Some of it is redacted. Some of it is based on the laws, but there's a database there. And they are the prep but the Human Rights Commission at this point doesn't have that. And so we didn't feel like that belonged in a miscellaneous bill, but that we needed to do the digging. Would this require a staff person? What would the rules around what gets put where and how he that felt bigger than miscellaneous judiciary. Thank you.

[Dick Hartman, Vermont Human Rights Commission]: And I'll just add on to that that the the draft I had looked at about that database was about complaints, and that's a lot broader than our investigative reports here. And absolutely look forward to having that conversation in the next biennium about ways that we, you know, as a state, want to improve the transparency of our investigations because, you know, it's a very strict confidentiality standard that we operate within. So I can't even tell you whether there's a certain investigation underway because all complaints are confidential, and they only cease to be confidential if they fit the current requirements within confidentiality provisions, which is a a public settlement agreement or a determination of reasonable grounds. And then it's just the determination and the party names at that point that are allowed in the public record.

[Sen. Nader Hashim (Chair)]: Thank you.

[Dick Hartman, Vermont Human Rights Commission]: I really thank the committee for taking the time in this busy week to consider this provision, and I look forward to conversations next biennium about, you know, other improvements we'd like to see to the Human Rights Commission statute.

[Sen. Nader Hashim (Chair)]: Thank you.

[Sen. Tanya Vyhovsky (Member)]: Thank you.

[Sen. Nader Hashim (Chair)]: Maybe, unless there's any objection, I would like to make this a bit more clear as to the, if there's a public records request, then what's covered here will be made public rather than being unclear is this all getting posted on the website in some database? Do they have the ability to pick what they're publishing? I think that it's better generally to provide the blanket requirement that the rep of request can be made public. Any objection to that?

[Sen. Robert Norris (Vice Chair)]: Go along with that. Think it's better. In case you're in my concerns as far as what they hold. So I'm a transparency for my social advice and take a bit lawyer request in them. Yeah.

[Sen. Tanya Vyhovsky (Member)]: If they can't say whether they're investigating something or not, how would anyone in the public know, make a public record request about an investigation they don't know is happening?

[Sen. Nader Hashim (Chair)]: Oh, it's not an ongoing investigation, it's an OT,

[Sen. Tanya Vyhovsky (Member)]: But how would they know it was concluded if it hasn't been made public and nobody in the public knew what could happen?

[Legislative Counsel (name not stated)]: Without C and K Public Records Act expert, I think there are two scenarios. One, if if a final termination issues, then and that happened if the commission has found there are reasonable grounds, then a member of the public would know that an investigation had occurred and could request the investigative report attached to a filing of a patient. I think the other scenario is, as the executive director described, if it is the kind of like cross cutting or affecting a large segment of the population kind of issue. In some cases, it's plausible to think that the public is aware of it through media or other things. Sometimes public record back requests are looking to see if there is something without knowing what there is. But it is a point that the commission is not disclosing what they are investigating. And so there's nowhere that someone in the public could go to look to see here are the possible HRC investigations that might have resulted in investigation investigative report, that item, robust. If you want more Public Records Act details, I will have to

[Sen. Nader Hashim (Chair)]: Who was the election council for that? Heather Anderson. Generally. So we'll move forward with that for now. I think if we can get some if we can move to something that's a bit more specific for the final presentation, that would be the.

[Sen. Tanya Vyhovsky (Member)]: Thank

[Sen. Nader Hashim (Chair)]: you. Okay. So we gotta go to Barrett. Barrett's not in there. Actually, I can go find him. You can take a brief.