An apparent clerical error by the administration of former Gov. Peter Shumlin has jeopardized the tenure of one of his highest-profile appointments to the Green Mountain Care Board.
Last November, Shumlin appointed Robin Lunge to a six-year term on the Green Mountain Care Board. The board is one of the most powerful regulatory bodies in Vermont, and wields enormous control over the state’s $5 billion health care industry. That means there’s a lot at stake when it comes to deciding who sits on that five-person board, and Republican Gov. Phil Scott is seeking to oust his Democratic predecessor’s most recent appointment.
Shumlin's choice was a controversial one: Lunge was the longtime director of health care reform in the Shumlin administration, and she helped spearhead the governor’s push for single-payer health care.
Though Lunge has deep knowledge of the health care universe in Vermont, critics feared that she would bring ideological baggage to the regulatory landscape. And now, a controversy over procedure may see Lunge’s tenure cut short.
“It came to our attention that our office had no record [that] the appointment had been made or submitted to the Senate in accordance with the statutory law,” says Rebecca Kelley, communications director for Scott.
Under state law, the governor has to officially notify the Vermont Senate of his appointment, so that the Senate can then move forward with a confirmation vote. The Scott administration says there’s no evidence that notification ever occurred.
"It's potentially a slippery slope if we don't follow the process as described, and there is a very specific process here." — Rebecca Kelley, communications director for Gov. Phil Scott
The Senate is now scrambling to determine how to move forward.
Addison Sen. Claire Ayer, the Democratic chairwoman of the Senate Committee on Health and Welfare, says she recently tried to initiate the process needed to move forward with that confirmation vote.
“I had no reason to expect that there was anything wrong with the paperwork or anything like that until just recently when I asked our staff person to find the paperwork, because we were all set to recommend [Lunge's] confirmation on the floor of the Senate,” Ayer says.
Senate staff was unable to find paperwork documenting that notification. Kelley says that’s because it doesn’t appear to exist. Kelley says the administration has searched for records of the appointment notification at the secretary of state’s office, the state archives and at the office of the secretary of the Senate. She says the administration has confirmed that no documents we received.
“Without that proper documentation, without following the very specific process that’s outlined in statute, it is very concerning and we feel if we aren’t able to find those original documents, that it does raise some legal questions,” Kelley says.
Kelley says those legal questions are severe enough to warrant starting the nominating process from scratch, and asking the Green Mountain Care Board nominating committee to send Scott a new slate of candidates. It’s a process that would almost certainly result in the appointment of someone other than Robin Lunge.
“It’s potentially a slippery slope if we don’t follow the process as described, and there is a very specific process here,” Kelley says.
In an April 12 letter to the Green Mountain Care Board, the governor’s counsel, Jaye Pershing Johnson, says the legitimacy of future rulings by the board hangs in the balance.
"If there's anything I can do to make sure she stays in that position as an unquestioned board member, I'll do it. " — Sen. Claire Ayer
“This is a very unfortunate situation, but I am sure you agree we must take steps to protect the interests of the state,” Johnson wrote. “Given the obvious potential for a third party challenge to a GMCB decision, and the impact the uncertainty regarding an invalid appointment would have on GMCB deliberations … we believe the best and most appropriate corrective action is to request the Green Mountain Care Board Nominating Committee re-perform the nominating process in order to remedy the defective appointment.”
The implications for the future of health care reform in Vermont are considerable. The board has two vacant positions currently, both of which Scott will get to fill with a candidate of his choosing. If he ends up replacing Lunge, it would give Scott’s appointments majority control of the five-person board just three months into his term.
Ayer says she’s working to avoid that outcome, and that she spoke recently with Shumlin.
“And he sent me an affidavit that says that he appointed her on a certain date, on a notarized piece of paper, which I’ve given to the secretary of the Senate,” Ayer says.
Ayer says it’s unclear at this point whether that retroactive notification is legally sufficient for the Senate to move forward with a confirmation vote.
“I haven’t gotten any legal advice yet. I expect to that in the next 24 hours. I don’t know what the options are, or if this has happened before. That might make a difference, what the precedent is,” Ayer says.
VPR was unable to find a former official in the Shumlin administration to talk on the record about the situation.
Prior to moving to the Shumlin administration, Lunge worked for nearly a decade in the Legislature, providing legal counsel to lawmakers on health care issues. Ayer says Lunge is eminently qualified for the job.
“And if there’s anything I can do to make sure she stays in that position as an unquestioned board member, I’ll do it,” Ayer says.
If the Senate does decide to move forward with that vote, it could soon find itself embroiled in a tense legal fight with the Scott administration, which could file suit to block the appointment.
Judy Henkin, general counsel for the Green Mountain Care board, says there’s no question that Lunge’s work has been legitimate up until this point. If a governor appoints a board member while the Senate is not in session, as was the case with Lunge, then that member can participate in board business, and vote on binding decisions, even if she hasn’t gotten a Senate confirmation vote.
But state law dictates that the confirmation vote be held before the end of the Senate session following the governor’s appointment — that’s the session lawmakers are in right now. And if the Senate fails to hold that vote before it adjourns next month, then Lunge’s status as a legitimate board member becomes much murkier.
Asked Monday whether the appointment notification issue has the potential to jeopardize the remainder of Lunge’s six-year tenure, Henkin said, “I think it does have the potential.”
“I would think that if this is not something that would be corrected or ratified by the governor’s office, the present governor, or acted on by the Senate, that that could be a problem for the board, in having her continue on,” Henkin said.
Assistant Attorney General William Griffin says he’s been in contact with the Green Mountain Care Board regarding the legal questions at issue, but he says the office of the attorney general won’t be the entity to judge whether Lunge’s appointment should be considered valid or not.
