The Vermont chapter of the American Civil Liberties Union says Commissioner of Health Dr. Mark Levine violated the state’s open meeting law when he unilaterally bypassed a recommendation from Vermont’s Opioid Settlement Advisory Committee to allocate $2.6 million toward overdose prevention centers.
Lawmakers established the 16-member advisory committee in 2022, and its enabling legislation directs the panel to submit annual recommendations on how the governor and lawmakers should spend Vermont’s share of cash settlements reached with the makers and distributors of addictive drugs like oxycodone.
During the committee’s most recent meeting, on Dec. 22, Levine, the non-voting chair of the panel, acknowledged “clear agreement” among committee members that funding for overdose prevention centers should be included in the 2024 recommendations. Records obtained by the ACLU show that funding for overdose prevention centers enjoyed more support from committee members than almost any other initiative they considered.
“It’s just unconscionable to me how what should be a public health process has turned into a political preference process."Ed Baker, overdose prevention center advocate
When Levine issued the panel’s final recommendationsto the Legislature in January, however, proposed funding for OPCs, also known as safe-injection sites, were omitted from the document.
Levine acknowledged to lawmakers that the panel had expressed enthusiastic support for funding the centers. But he said that since lawmakers had already introduced legislation that included a separate funding mechanism for OPCs, he reallocated the $2.6 million toward other initiatives, “so as to maximize our ability to support a broad array of initiatives.”
Harrison Stark, a staff attorney at the Vermont ACLU, said Levine’s “behind the scenes” alteration of the committee’s final report constituted a substantive policy change that violates open meeting law.
“The open meeting law requires that essentially any government body exercising government power has to do it in way that’s fully accessible and is open to public participation,” Stark told Vermont Public Friday. "That was a substantive decision that was required to be done before the public, so publicly noticed in advance, open to public debate.”
Senate President Pro Tem Phil Baruth Friday called the allegations “serious, in more ways than one.”
“It is disturbing to think that the committee's decisions would be revised out of public view, by its non-voting chair,” Baruth said. “The stakes involved with the group's work are life and death, and more than one statute protects its integrity with the force of law.”
Baruth, a Democrat, said it’s also disingenuous of Levine to cite pending legislation as the reason for the revision, when the person that appointed him, Republican Gov. Phil Scott, openly opposes overdose prevention centers and has indicated he might veto the bill if it reaches his desk.
“In this way, Commissioner Levine can at once claim to respect and support the Advisory Committee's will, spend the $2.6 million on other initiatives, and undermine the legislative path to overdose prevention centers simultaneously,” Baruth said.
Scott’s director of communications, Rebecca Kelley, issued a written statement Friday saying Levine was being “inappropriately smeared.” She said statute directs the advisory committee "to provide advice and recommendations regarding … spending from the Opioid Abatement Special Fund … for the purpose of advising the Governor, the Department of Health and the General Assembly on prioritizing spending.”
But she said the same law grants the Department of Health exclusive authority to submit a final spending plan that is “informed by the recommendations of the Opioid Settlement Advisory Committee.”
“Despite the false accusations, the law does not limit Dr. Levine’s discretion in making his final recommendations to the governor for his budget proposal or to the Legislature,” she said.
The Health Department did not make Levine available for an interview Friday.
Stark said nobody contests that statute authorizes Levine to present funding recommendations to the Legislature. But he says the law contains a separate provision that directs the advisory committee to submit its own separate recommendations to the Legislature.
The memo submitted by Levine on the committee’s behalf, according to Stark, repeatedly represents the recommendations as coming from the committee as a whole. In the opening line, Levine writes, “I am pleased to provide the recommendations of the Opioid Settlement Committee to the VT General Assembly for fiscal year 2025.”
“The written memo represented—repeatedly—that it spoke on behalf of the committee as a whole,” Stark said in a follow-up email. “Even if Dr. Levine did have discretion to reallocate specific funds proposed by the Committee, which he does not, all of the open meeting violations alleged in our letter would remain. These were substantive decisions made under the committee’s charter that plainly fell under Vermont’s Open Meeting Law.”
Days after the Dec. 22 meeting of the advisory committee, according to records requested by Stark, Levine engaged in email correspondences with senior administration officials. One of those emails referenced a document titled “high level OPC discussion.”
Stark said the administration redacted those records in their entirety, citing executive privilege.
“If the administration wants to be transparent about what they’re saying behind the scenes about OPCs, about the degree of interference that is happening between senior administration officials and this expert advisory committee, I would welcome them to disclose those communications so we can see what’s being discussed,” Stark said. “But considering they’ve chosen to redact them in full, I think we can only speculate. And the most reasonable inference is that OPCs do not enjoy the support of the governor’s team, and they want to affect this process in some way.”
Bennington Rep. Dane Whitman is one of two lawmakers who sits on the Opioid Settlement Advisory Committee. He said he doesn’t have the legal authority to weigh on whether or not Levine violated open meeting law. But he said the commissioner’s decision not to include funding for overdose prevention centers in the final recommendation to lawmakers undermines trust in the process established by statute.
“The purpose of the Opioid Settlement Advisory Committee is to hear the perspectives of Vermonters impacted, informed by the opioid overdose crisis,” Whitman said. “And so I expected the recommendations, the official memo, to reflect the votes of members.”
If Levine wanted to omit the funding recommendation, Whitman said, then he should have called a public meeting at which committee members could deliberate.
“I really think that what went wrong was that inclusive process was not held by the committee,” he said.
Ed Baker is an advocate for overdose prevention centers who prompted the ACLU’s investigation. Overwhelming support among committee members for OPC funding, he said, represented a “momentous decision.”
“The advocacy had finally taken hold, and an overwhelming majority of the committee voted to have overdose prevention centers as its highest priority,” Baker said.
Levine’s alteration of that recommendation, according to Baker, constitutes "a clear abuse of power."
"It’s just unconscionable to me how what should be a public health process has turned into a political preference process,” he said. “And to me, that’s equal to, in a negligent way … costing the lives of Vermonters that I think are most at risk for death today.”
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