Vermont ACLU Lawsuit Against Department of Health Alleges Violations Undermining Legislature’s Response to Opioid Epidemic

By Gabriela Rose

MONTPELIER, VT- The ACLU of Vermont this week announced the details of a lawsuit filed  against Vermont Gov. Phil Scott’s administration, charging the Vermont Dept. of Health withheld opioid settlement records and violated Vermont’s Open Meeting Law requirements.

In a statement, the ACLU said its lawsuit seeks to obtain public records concerning the Opioid Settlement Advisory Committee’s budget recommendations to the Scott administration regarding the legislature’s response to Vermont’s opioid epidemic.

The Opioid Settlement Advisory Committee is composed of public health experts, especially those with experience with substance use disorder, explained the ACLU, noting the committee was created by legislature in 2022 and is responsible for advising the DOH on how to spend Vermont’s part of opioid settlement money paid by drug companies.

The ACLU alleges the committee ranked its funding priorities in December 2023, and most votes went towards $2.6 million in funding for Vermont’s first overdose protection centers, defined as a life-saving harm reduction measure, and were adopted into the legislature this past year despite Gov. Scott’s veto.

Commissioner of Health Dr. Dr. Mark Levine was charged with presenting the committee’s final recommendations to the legislature, said the ACLU, insisting Levine presented an altered version of the Advisory Committee’s recommendations to the legislature—eliminating the recommendation to fund OPCs and reallocating the $2.6 million.

The ACLU states Dr. Levine shared a copy of the report he planned to submit to the legislature, but did not respond to many questions posed by committee members via email about the changes omitting OPCs from its recommendations.

Dr. Levine, added the ACLU, implied to the legislature that the committee had not prioritized OPCs for spending “because H.72 contains a provision for an alternate financing mechanism.”

And, that statement, noted the ACLU, was misleading because H.72 had not yet been passed or signed into law, and the legislation was later vetoed by Governor Scott.

The ACLU’s lawsuit seeks public records to challenge the Scott administration’s private alteration of the committee’s recommendations to the legislature. These records include emails within the administration before Dr. Levine removed OPCs from the Committee’s recommendations.

The ACLU statement states Dr. Levine denied the ACLU access to the correspondence, citing “executive privilege.” However, executive privilege, maintains the ACLU, only applies to direct communications with the governor about genuine executive decision-making.

The DOH’s alterations to the recommendations, informing the committee of his changes over email alone, and the failure to publish accurate minutes reflecting the committee’s consensus

Are cited in the ACLU’s lawsuit as violations of Vermont’s Open Meeting Law and the Vermont Public Records Act.

Lia Ernst, legal director of the ACLU of Vermont, said in the ACLU statement, “Claiming ‘executive privilege’ as a means of avoiding accountability is out of step with Vermont values, and it denies Vermonters their right to transparent and responsive government.”