Opening scene: A telephone plays a voice message. It's a message from Ginny Thomas, wife of Clarence Thomas, asking Anita Hill if she wouldn't perhaps like to consider apologizing to Clarence Thomas for what she did to him in 1991.  

You may know I'm a lifelong Legal Services lawyer. One of the first cases I remember doing was back in 1979 or 1980, an unemployment case where my client had quit her job because of sexual harassment from the boss. Demands for oral sex, suggestive comments, and so forth. Our argument was that the sexual harassment gave her good cause for voluntary leaving, and we won.

Probably for many people the first they heard of sexual harassment was when Anita Hill came forward in 1991 and testified about how Clarence Thomas sexually harassed her. It was so sudden, because his confirmation hearings were already over, and then were reopened over a full weekend. I know that it wasn't only people like me, with an insatiable appetite for both law and politics, who were glued to the TV.

We know the outcome: the Republicans, particularly the vile Arlen Spector, Orrin Hatch, and Strom Thurmond, a man who, if the world were arranged according to his preferences, would be eligible to own Clarence Thomas, attacked Hill with every imaginable innuendo and insult and managed to confirm Clarence Thomas to the Supreme Court, where he continues to disgrace the institution.

What most people don't know is what happened to Anita Hill. I just got back from watching Anita: Speaking Truth to Power at the Green Mountain Film Festival. It goes inside the hearings, literally taking us backstage as Anita Hill is escorted into the committee room, and show us her life as a law professor before and after the Thomas hearings. It also, if you were watching, will reawaken the feelings of outrage you had over twenty years ago.

What happened to Anita Hill is what happens to a lot of people. She was just going through her life, doing her job, working hard, and things were pretty good. She was never an activist until she was forced into the public eye, forced to confront what happens when the male power structure decides to silence a woman for telling the truth.

It's clear from the movie that Anita Hill isn't glad about what happened to her. It was painful at the time, her job, her career, and her life were threatened, and she was uprooted from a successful professorship  not far from where she grew up in rural Oklahoma.

What she gained, though, was not only perspective, but an activist mission that wasn't there before. Hill's experience has led her to a career of advocacy for women's equality and opportunity that was not there before. We are no longer where we were in 1991, when Senator Alan Simpson could openly refer to “this sexual harassment crap”. Anita Hill shows us politicians, judges, law professors, and young women and girls who have been moved by Anita Hill's experience and efforts. 

Anita Hill opened in New York Friday night, but if you can get away from work for a couple of hours you have a chance to see it in Montpelier this Friday at 11:45. You'll be glad you did. 

Oh yeah, in case you're wondering, it's still absolutely clear: Anita Hill told the truth, Clarence Thomas lied. 

Robert Caro tells a story of Lyndon Johnson's first days as President. Kennedy had been assassinated and Johnson met with some of his top advisors to plan his first speech. They were unanimous in advising him to steer clear of civil rights in the speech, because that was just not a winning argument with the majority of the public.

Johnson's now famous reply: “Well, what the hell's a presidency for?” He made civil rights the main focus of his speech and it started the momentum that led to the passage of the Civil Rights Act and the Voting Rights Act.

The Democrats in the Vermont House are faced with a similar situation. As Paul Heintz reports in Seven Days, Speaker Shap Smith supports earned sick days for Vermont's workers, but is unlikely to bring the bill to the floor because of concerns that he might not have the votes to pass it.

 He may be right. We know that Smith has been very effective as Speaker, and the ability to count votes is a big part of that effectiveness. On the other hand, the Democrats have super majorities in both the House and the Senate. There are workers in every House and Senate district who are sometimes faced with the choice between going in sick or staying home and missing a day's pay.

If we can't stretch sometimes to achieve something important for the working people who should be the central concern of the Democratic Party, I have to ask: What the hell's a majority for? 

The Democrats have an opportunity here to stand squarely on the side of Vermont's working people. Wouldn't you like to see them take it? 

This is a cross-post of the diary written by Allen Gilbert and posted at the ACLU-Vermont page. It's in response to the sudden action taken by the House Government Ops Committee yesterday stripping the protections out of the legislation introduced after the death of Macadam Mason, only the latest death caused by law enforcement deployment of tasers.

Reposted by permission.

 What was thought to be a final look at a Taser use and training bill, H.225, before approval by a Vermont legislative committee turned out to be a bait-and-switch, with a redraft that shifted discretion to law enforcement to use Tasers as they see fit. Gone were protections that the weapons would be used only when lethal force was justified. Ignored was testimony that measurement and calibration of Tasers’ electrical charge are crucial to safe operation. Dismissed was testimony from Taser International’s CEO that cameras recording officers’ actions can reduce abuse. Remaining was language that codifies existing Vermont police Taser policies — which will likely lead to more of the same problems with the stun guns, problems the original bill hoped to prevent.

Bound volumes of research reportsoffered by Taser International to lawmakers as evidence their products save lives.

The Vermont Attorney General’s office, the Law Enforcement Advisory Board, and Legislative Council got together (without the input of advocates who have followed the bill and submitted testimony) and produced the redraft. This new version was unveiled Wednesday morning in the House Government Operations Committee and approved Wednesday afternoon, with no chance for critics to testify except those happening to be in the room when the events occurred.

The five-hour window between introduction of the redraft and passage by the committee contrasts with months-worth of discussion and hearings at which an LEAB draft Taser policy – from which the new bill borrows heavily – was roundly criticized.

Since 2012, the measure for success of a Taser use and training bill has been whether the new law — had it been in force at the time – would have prevented the police Taser death of Macadam Mason in Thetford in that year.

A Government Operations Committee member asked that very question Wednesday when the redraft was presented. The answer is, probably not.

The reason is the redrafted bill’s low “threshold” standard for when police can draw and shoot a Taser. The standard is:

(2)(A) Officers may deploy an electronic control device:

(i)  in response to an actively resistant subject, if there is reason to believe that using another compliance technique will result in a greater risk of injury to the officer, the subject, or a third party;

Examples of actions by an “actively resistant subject” include “pulling away, escaping or fleeing, struggling and not complying on physical contact, or other energy enhanced physical or mechanical defiance.” “Pulling away” can be putting your arms across your chest; “other energy enhanced physical or mechanical defiance” is not defined.

Belief “that using another compliance technique will result in a greater risk of injury to the officer, the subject, or a third party” means that if an officer feels he’s at a higher risk of injury if he pulls out a baton or pepper spray instead of a Taser, then he’s justified in pulling out the Taser. Any possible injuries caused to the subject by the Taser are immaterial.

The U.S. Supreme Court standard for when an officer may draw a deadly weapon is when such force is needed to reduce an immediate risk of serious injury or expected death to the subject, officer, or others. Even if Tasers are viewed as “less lethal” rather than “lethal,” the gap between the two standards is huge. The standard now in the bill is not appropriate considering the possible effects Tasers can have, which include death.

Since the bill has such a low use-of-force standard, more lawsuits involving Tasers are inevitable. So far, Vermont police have spent $80,000 in settlements after being accused of misusing the weapons. H. 225 as now heading to the House floor is inviting more suits. Its loose, permissive standard puts officers and their departments at risk.

And as before, also at risk will be people with disabilities or people suffering from mental health issues. The weapon’s manufacturer says to avoid using Tasers on such populations. But the committee’s bill only says

The use of electronic control devices shall include recognition of the potential additional risks that can result from situations in which subjects have cognitive disabilities or are in emotional crises that interfere with the ability to understand consequences of action. 

Leaving such a determination to officers not versed in conditions resulting from disabilities or mental health issues puts them in a difficult position.

The only protection added to Wednesday’s redraft was one to protect pets. The new provision reads:

(6)  Electronic control devices shall not be used on animals unless necessary to deter vicious or aggressive animals that threaten the safety of officers or others. 

The committee’s approval of the bill came on a unanimous 11-0 vote. It now goes to the full House for debate. That debate will not take place until next week, unless rules are suspended to take it up more quickly.

Results are in from Montpelier's election. With about 2400 ballots cast, and contested City Council races in every district, here are the results:

Mayor

Hollar (I) 1525

Hallsmith 782

Council D-1

Bate 401

Hooper (I) 357

Council D-2

Guerlain (I) 441

Guertin 315

Shadis 69

Council D-3

Turcotte 394

Jones 278 

School Budget

Yes 1130

No 1211 

My impression is that the mayoral race was closer than expected. Among people I talked to, most people agreed with the issues that Gwen Hallsmith raised (for example, over 1600 people voted for the state bank, Hallsmith's pet issue) but were unanimous that given the disarray she presided over when she worked for the city she would have been a disastrous choice for mayor. 

The austerity candidates in Districts 2 and 3, incumbent Thierry Guerlain and Justin Turcotte, won handily; Guerlain had two challengers, neither of whom ran much of a campaign, and their total came fairly close, but not close enough to say that vote-splitting among the opposition made a difference.

District 1 was close and it is quite likely that the late publicity that Andy Hooper, a genuinely nice guy, received for unguarded comments in some e-mails on the Hallsmith affair made a difference in that race.

As usual, every other proposal but one passed overwhelmingly. The one exception was the school budget, where even a small budget increase would have led to a large percentage tax increase. It's back to the drawing board for the school board.

I continue to doubt that Montpelier voters are as conservative as the Vibrant and Affordable Montpelier faction on the Council. Winning candidate Dona Bate took a progressive, pro-housing position and I hope she is able to advance those issues. Meanwhile, in upcoming elections early and committed work will be needed to return Montpelier to a more progressive vision of what the city can and should be. 

Another opinion on the Montpelier election, this time an op-ed published in The Bridge  and written by David Abbott, who has been one of the most eloquent voices in the city opposing the austerity agenda.

Reprinted with the author’s permission.

JMc

For some Montpelier opponents of the school budget that appears to be the great divide when citizens vote on the school budget on Town Meeting Day, March 4. In their thinking a vote for the school budget has less legitimacy if the voter, as most of us do, has an income sensitized school tax. They refer to these voters as having No Skin in the Game.

Are some citizens of modest means able to vote for the school budget only because they are shielded from the full cost of that vote by income sensitivity provided by the Property Adjustment Tax (PAT)? Probably so. But here’s another Skin in the Game question that I never hear discussed. Are there some citizens voting against the school budget because they don’t have kids in our public schools? Undoubtedly. We’ll call these folks voters with No Kin in the Game.

Which voter, the one who supports the school budget, irrespective of Skin in the Game, or the voter who votes against the budget because he or she has No Kin in the Game, makes the greater contribution to this city? Is a No Skin in the Game vote any less legitimate than a No Kin in the Game vote? Think hard about the answers to these questions because the answers will define us.

Of course this isn’t a game. Most families with kids take their children’s education very seriously, understanding that good public schools offer invaluable preparation for future success. Many other voters, those without children in our schools, understand this as well. Together, they have given us a caring and generous community that is supportive of our most important infrastructure- the schools that serve our children.

I am proud of our city’s reputation for good schools. I am also proud of our state for using income tax revenues in supporting school budgets via the Property Adjustment Tax. Public schools are too important to the nation’s future to be wholly dependent upon a regressive real estate tax that for many bears scant relationship to an ability to pay.

Every year on Town Meeting Day roughly two thirds of Montpelier voters support the school budget . Let’s dig a little deeper in supporting our kids this year.

This is an unusual year in Montpelier, with contested elections for mayor and all three City Council seats. With the approval of the candidate, I am posting a letter Page Guertin, who is running for  the District 2 Council seat, recently published in the Times Argus. I think she raises important points about the direction the current Council is taking.

JMc

I am running for City Council in Montpelier’s district 2 because we must be vigilant about maintaining the value of the investments we’ve made in this city and its quality of life, through the payment our taxes.   City government is a service organization; budgets should be developed on the basis of how we can provide the best possible services to residents and visitors, and the best possible outcomes long-term, not simply on the bottom line for next year.  I support careful, thorough analysis of all costs, resources,  assets and benefits with an eye to long-range goals, along with creative approaches to new sources of revenue like a variety of new, smart, efficient homes and further collaboration with surrounding communities.  Managing our money carefully is important, but when budget development is framed only by the maximum percentage of increase, we need to ask, “What do we lose?”

I am a recovering computer systems analyst.  I do analysis well, I value process, openness, and inclusiveness.  I like details, and I listen in order to understand.  I served on Montpelier’s Charter Revision Committee, I’ve attended city council meetings, and I’m active in our neighborhood organization.  I’d like to use my skills to serve the city, bring people together to continually evaluate and renew goals and aspirations for the future, and make sure budgets follow those goals and aspirations.

The current City Council appears to pursue the Vibrant and Affordable Montpelier (VAM) agenda, which is simply to cut budgets.  I think that’s a potentially damaging perspective, and I’d like the council to be more inclusive and representative of all residents of Montpelier.  One of my central goals is to to improve process, communication and transparency in council dealings, and to work toward inviting increased public participation in the important work of city governance.

Because of questions raised about the accuracy of my diary from last night, Inside Baseball in Montpelier, I have taken it down for review and editing.

Watch this space for more details.

UPDATED:  Edited to remove the conspiratorial tone of the original. Thanks to JO for the catch.

Jack McCullough 

What started out as an uncontroversial, good-government civic project in the Capital City has turned to controversy, due largely to last-minute changes adopted by Montpelier's City Council before the proposal goes to the voters.

The project, launched in October, 2012, was intended to be a modernization, reorganization, and update of Montpelier's city charter, with no changes to the substance of the charter. As described by the Charter Revision Committee in its report to the voters,:

 The Charter Revision Committee was careful to not propose any substantive changes to the charter.  Our proposed revisions are clarifications and updates to the charter text.  The committee recommends deleting obsolete and unnecessary charter text, adding new language, moving and reorganizing some sections, and inserting new sections that accurately describe the current practices and authority of Montpelier city government.

. . .

The document Montpelier Charter Revisions submitted to the council in August 2013 has extensive clarifying edits but no substantial changes.  When the committee met with the council in August and November, a few additional clarifying edits were requested by the council and incorporated into the charter revision document.  

 (g) Permit the non-highway use, occupancy or reservation of portions of public streets and thoroughfares, provided that such use, occupancy or reservation is in the public interest and will not impair or interfere with the free and safe flow of vehicular and pedestrian traffic thereon.

(h) Establish fees and benefit charges for city services, permits, licenses, hearings, and uses of city property.  Establish fees for dog licenses.

The first provision, allowing the Council to premit non-highway use of public streets, arises out of a kerfuffle last year about Montpelier Alive's proposal to let local restaurants and bars use the parking spaces in front of their establishments for “parklets”, or outside seating. In a city where parking as tight as it is in downtown Montpelier you can imagine that this would not be universally popular, but in addition to the lost parking people were complaining about safety and public alcohol consumption issues. Questions were raised by the chair of the local Liquor Board and the state Liquor Control Commission (how I wish Vermont's commission were called the ABC Commission, as in some other states!) and transportation issues were also raised.

Beyond that, some residents were unhappy with the idea of public space, even parking spaces, that could be used as a public resource would essentially be turned over to local businesses. The Times Argus reported:

 Ann Gilbert, a member of the New Directions Coalition, a central Vermont organization promoting healthy lifestyles, said she too was concerned about allowing alcohol to be served at the parklets. 

 The proposal never went anywhere last summer, but now it pops up as part of the charter revision.

The second item is similar. The fight was over dogs, dog owners, and dog waste in Montpelier. Should Montpelier have a dog park, should dogs be allowed to run off leash at Hubbard Park,  should dog owners be more responsible to take care of dog waste, and who should pay the cost for dog waste receptacles the city wound up buying, dog owners or the general public?

Because people feel strongly about their dogs, and other people feel equally strongly about not have to encounter threatening dogs or dog feces contaminating their daily walks, this led to some very strongly worded arguments on Facebook and elsewhere. (For instance, see Bryan Pfeiffer's blog post “The Crap Around Montpelier“.) 

 I think there are reasonable arguments to be made on both sides of this one. On the one hand, I don't want to deal with feces other people and their dogs distribute around the city, and I think it is reasonable to argue that dog owners should bear the cost of disposal. On the other hand, we don't make tennis players pay a fee for the upkeep of the public tennis courts, we don't make joggers contribute (beyond their taxes) to the city's hiking and running paths, we don't charge people who frequent Hubbard Park a special “park impact fee”, so why should dog owners be any different?

Again, while not explicit, the dog fee has surfaced as part of the Council's changes to the charter revision proposal.

In both of these cases there is a perfectly innocent explanation: in the course of considering ordinances the City was told that the Council didn't currently have authority to do what they wanted to do. The parklet proposal impinged on the authority of the Department of Transportation and the dog fee proposal would have violated state law on the permissible uses of dog licensing fees.

Contacted about this proposal, Mayor John Hollar emphasized that if either of these proposals is going to be implemented it would still have to do through the Council's usual process for enacting new ordinances, including public hearings. 

Former Council member Nancy Sherman, who chaired the charter review commission thinks the charter change proposal goes too far. In a letter in Times Argus she doesn't go so far as to call for the defeat of her own commission's proposal, but raises questions about whether this was a back door deal to sidestep public input. As a consequence, this uncontroversial update may suddenly be getting more attention than anyone expected.

These are substantive changes, and it's hard not to think it would have been better to have them on the ballot as standalone measures, so each could have been debated on its own merits.

It was learned at tonight's Montpelier Board of Civil Authority meeting that next month's election will be a rarity for Montpelier in recent years: contested up and down the slate.

Not only is there a contest for mayor, every City Council seat is contested and there is evenn a race for Parks Commissioner.

Here's the list of candidates, as posted on the city's web page: Thanks to the efficiency of our Town Clerk, John Odum, for getting this information out so quickly!

 CANDIDATES: 

FOR MAYOR – For a Term of 2 Years (Vote for not more than ONE)

• JOHN H. HOLLAR
• GWENDOLYN HALLSMITH

FOR GREEN MOUNT CEMETERY COMMISSIONER – For a Term of 5 Years (Vote for not more than ONE)

• CHARLES E. WILEY

FOR PARK COMMISSIONER – For a Term of 5 Years (Vote for not more than ONE)

• BRYAN M. PFEIFFER
• BILL JOHNSON

FOR SCHOOL COMMISSIONER – For a Term of 3 Years (Vote for not more than TWO)

• CAROL PAQUETTE
• KENNETH JONES

FOR COUNCIL PERSON, DISTRICT 1 – For a Term of 2 Years (Vote for not more than ONE)

• DONA BATE
• ANDY HOOPER

FOR COUNCIL PERSON, DISTRICT 2 – For a Term of 2 Years (Vote for not more than ONE)

• PAGE S. GUERTIN
• THIERRY GUERLAIN
• IVAN SHADIS

FOR COUNCIL PERSON, DISTRICT 3 – For a Term of 2 Years (Vote for not more than ONE)

• JUSTIN TURCOTTE
• DAN JONES

This is a blog post by Allen Gilbert, executive director of the Vermont chapter of the ACLU and posted at his request. It can also be found here: 

http://www.acluvt.org/blog/2014/01/29/your-medical-records-are-already-out-there/?utm_source=twitterfeed&utm_medium=twitter

With no fanfare and public notice, many Vermonters’ personal medical records have already been put into electronic databases controlled by the state and soon to be accessible to physicians and others working in hospitals and medical offices. While your consent is necessary for your records to be viewed legally, there is no electronic “lock” preventing unauthorized access — just the threat of what have, in the past, often been weak sanctions meekly administered.

The possibility of unauthorized access to Vermonters’ personal medical records will assume much larger dimensions if a proposal coming before the Green Mountain Care Board Feb. 13 is approved. The proposal would change the current system of a patient controlling which providers may access her records. Instead, there’d be a “global opt-in” system, in which a patient must agree to let all providers see her records, or no providers see anything (other than your own doctor and others in the same practice).

Further, if you give “global” consent, only those doctors and workers treating you are supposed to access your records. However, the state’s complex medical records system allows any provider to call up someone’s record and view it. If a doctor or lab technician views the record of someone they’re not treating, the unauthorized access is called a “breach.” That means someone who’s not supposed to see your medical records has taken a peak.

Only if an audit of the records were done, however, would the breach be found. If the breach were found and the violator identified, penalties could be imposed by the federal Office of Civil Rights, the state Attorney General’s Office, the person’s employer, the licensing agency overseeing the profession in which the violator works, or the agency credentialing the institution, if a hospital.

Supporters of e-medical records systems point to the possible penalties these agencies can impose as effective deterrents to breaches and as strong protection of your privacy.

In reality, the system of sanctions doesn’t always work the way it’s supposed to, raising the question of how secure patients’ records are in big electronic databases when access to the records is ubiquitous.

An example of weak sanctions: The federal Office of Civil Rights didn’t issue its first monetary penalty for a medical records privacy violation until 2012, 16 years after federal privacy protections were put in place through HIPAA, the federal Health Insurance Portability and Accountability Act. And now, the go-get-‘em enforcer (Leon Rodriguez) brought on the scene in 2011 to improve this track record has just been nominated for another position within the Obama administration.

There are Vermont stories to illustrate the problem of weak sanctions. Take, for example, the story of a Bennington woman who had her e-medical records viewed more than 100 times, over a period of 12 years, by someone with no authorization to do so (her sons’ records, additionally, were viewed 200 times).

The woman contacted the Office of Civil Rights and filed a HIPAA complaint; the OCR substantiated that the breaches had indeed occurred at Southwestern Vermont Medical Center. The woman also contacted state agencies; the Licensing and Protection Division of the Vermont Agency of Human Services found that the hospital had failed to meet three key standards for medical records privacy and security. The woman also contacted the FBI, her local legislators, and the Bennington Police Department.

After months of reviews and investigations, in November 2012 the violator plead guilty to four misdemeanor counts of unauthorized access of computer records. She was given a suspended sentence, fined $2,000, and made to perform 160 hours of community service. She continued to work in a hospital – although not the one where she had spied on others’ records. The hospital where the breaches occurred faced no reported sanction; it was only told it had to take corrective action so patients’ medical information was better protected.

The ACLU is not opposed to the digitization of patient medical records and the building of patient record databases. We understand access to a patient’s medical records can improve medical care, avoid duplication of services, and save money. But adequate safeguards protecting privacy must be in place. And we do not believe Vermont’s safeguards are adequate for the kind of system being built.

We are urging the state not to approve a “global opt-in” system before four things are done:

• Patients must have a right to request and receive an audit at least once a year showing who has accessed their medical records.
• Law enforcement must be prohibited access to medical records without a warrant.
• Stiff civil and criminal statutory penalties must be put in place that can be imposed on any person or institution accessing a patient’s records without authorization or need to do so.
• A private right of action for patients to sue for damages for unauthorized access to records must be created.
• 
  

The Green Mountain Care Board is expected to take up the proposal to change the patient consent policy on Thursday, Feb. 13, at 1 p.m.

• Before then, comments on the proposal can be submitted by 9 a.m. on Feb. 3 to the office of the Secretary of Administration, who will make a recommendation to the Green Mountain Care Board on whether the proposal should be approved, modified, or rejected.
• After the Green Mountain Care Board’s Feb. 13 hearing, comments will also be accepted by the board, which is expected to make its decision by Feb. 27. Information on submitting comments should be available on the board’s Web site following the Feb. 13 hearing; the deadline for submitting comments will likely be very tight.

Background materials:

• Proposal from Vermont Information Technology Leaders (VITL) to change the Vermont Health Information Exchange patient consent policy.
• Current patient consent policy, with proposed changes noted.
• Comments by ACLU-VT on the proposed changes.
• Read the Rutland Herald story on the sentencing of Kathy Tatro in Superior Court in Bennington in November 2012 for unauthorized access of a patient’s medical records.