The American Civil Liberties Union of Vermont has filed a lawsuit against Vermont Health Commissioner Mark Levin, alleging that the state’s health commissioner illegally falsified recommendations on how to use settlement funds from drug manufacturers and distributors.
The lawsuit, filed Wednesday in Washington County Superior Court, seeks redacted documents related to Levine’s changes to the Opioid Settlement Advisory Committee’s recommendations and asks the court to declare that the health department violated Vermont’s Open Meetings Act.
This is the latest development in a months-long dispute between the ACLU and the Scott administration over the health commissioner’s decision to change the ACLU’s certification of overdose prevention centers, also known as safe injection sites.
“By playing politics and violating both Vermont’s open meetings and public records laws, the Scott Administration has not only jeopardized Vermonters’ access to life-saving overdose prevention centers, but also eroded the trust between government officials and the people they are supposed to represent,” ACLU staff attorney Harrison Stark said in a press release announcing the lawsuit.
Amanda Wheeler, a spokeswoman for Gov. Phil Scott, said in an email that the lawsuit is driven by politics and that the ACLU “is simply not right about the law.”
“Following the frivolous lawsuit filed by two senators just a few weeks ago, there appears to be a pattern of using the courts to distract Vermonters and the press in an election year,” she said in an email, referring to a separate lawsuit filed by the two senators over Gov. Scott’s controversial decision to appoint Zoe Sanders as acting secretary of education.
“It is notable that this lawsuit was filed just as Vermonters are coming to terms with their property tax increases, with property tax bills that average approximately 14 percent higher just beginning to arrive in taxpayers’ mailboxes,” Wheeler wrote.
The ACLU lawsuit grew out of a complex series of events surrounding the work of the Opioid Settlement Advisory Committee.
Vermont, along with other states, has filed lawsuits against pharmaceutical companies and distributors for their role in the national opioid epidemic. As part of settlements with the companies, Vermont will receive millions of dollars in payments over multiple years. An advisory committee made up of officials, lawmakers and advocates has been tasked with making recommendations on how Vermont should spend the money.
The commission in December issued a list of recommendations, including $2.6 million, about half of the total available this year, for overdose prevention centers, which advocates say are staffed facilities where people can safely use drugs without fear of overdose.
The proposal to fund the center received broad support from committee members.
Redacted emails provided in response to an ACLU public records request show that Levine, who was the non-voting chair of the advisory committee, then consulted with other members of the Scott administration. Afterward, Levine sent lawmakers a revised list of recommendations that did not include funding for overdose prevention centers.
“One of the highest priority recommendations from the Committee, although not mentioned in this letter, is funding for two overdose prevention centers,” Levine wrote in a letter to the chairs of the House and Senate Appropriations Committees on Jan. 16. “It is clear that Congress plans to fund these centers from sources other than reconciliation funds.”
That was a reference to a bill under consideration at the time that would have funded two overdose prevention centers with a separate source of funding. Scott, Levin’s boss, had consistently opposed the bill, ultimately vetoing the final version in May. Lawmakers overrode that veto a month ago.
According to the ACLU lawsuit, Levin also edited other parts of the committee’s recommendations, including removing “all references to harm reduction,” a strategy that prioritizes reducing the negative consequences and dangers of drug use.
The ACLU argued that the changes were made unilaterally by the health commissioner and therefore violated Vermont’s Open Meetings Law.
In response, the health commissioner said his list of recommendations was actually the department’s “budget submittal,” a separate document that wasn’t bound by the law governing the Opioid Settlement Advisory Committee. Therefore, Levine said, it was appropriate for him to submit the revised list.
But the ACLU argued that Levine’s list “speaks on behalf of the (advisory) committee, not on behalf of the Department of State or Dr. Levine as commissioner.”
The ACLU is also seeking unedited copies of communications between Levine and administration officials that occurred before Levine’s letter, which were initially redacted under attorney-client privilege but were later redacted by administration officials under executive privilege, according to the emails.
In an interview, Stark, the ACLU attorney, said this appeared to be a novel interpretation of executive privilege, which he said should only apply to communications involving the governor.
“To my knowledge, I have never seen a case where the head of a government agency has asserted executive privilege to conceal communications for his own benefit,” he said.
The lawsuit asks the court to rule that “executive privilege is limited to communications directly with the Governor in the course of deliberations in furtherance of the Governor’s authorized action.”
The lawsuit names Levine, the HHS and the Opioid Settlement Advisory Committee, which has ties to the HHS, as defendants. HHS spokesman Ben Truman said the HHS hasn’t yet been served with the complaint.
“We are therefore open to responding to the ACLU’s complaint once we have had an opportunity to formally consider it,” Truman said in an email.
Wheeler, the governor’s spokesman, noted that much of the debate about overdose prevention centers has already been settled: Lawmakers have already passed a bill to fund such facilities with settlement money.
“Their allegations, like those regarding the appointment of Secretary of Education, are baseless, and it is unfortunate that taxpayer money is being further wasted for political purposes at a time when our administration is already so heavily burdened by Congressional action,” Wheeler wrote.
