Browning: Shumlin ruling ‘a defeat for transparency and accountability’

By Bruce Parker | Vermont Watchdog

When Vermont state Rep. Cynthia Browning began her nine-month transparency crusade against Gov. Peter Shumlin, she couldn’t have imagined how it would turn out.

Faced with a party leader who flouted the law by refusing to disclose financing options for single-payer health care, the Arlington Democrat filed a public records request to obtain the information — and was denied. Shumlin claimed executive privilege, and Browning sued.

After months of delay, a Superior Court judge ruled last week Shumlin could keep his single-payer plans secret using executive privilege, even though he was privately sharing information with select lawmakers and business and consumer advisory committees unconnected to his administration.

In an interview with Vermont Watchdog, Browning explains what the ruling means for transparency and accountability in Vermont. She also says she received flak from fellow Democrat colleagues, despite being the top vote-getter in her Bennington-4 District and garnering more votes than Shumlin.

Vermont Watchdog: What does this ruling mean for Vermont?

Browning: I think it is clearly a defeat for transparency and accountability. But by asking for the records and filing a lawsuit when they were denied, I think I drew attention to the issue and to the violation of principle that the governor and the legislative majority claim to uphold but did not uphold in this case. I think that was important. … If I’d have gotten the documents I asked for in March, Vermonters would have known more about this plan and would have had a chance to make suggestions and criticisms.

VW: Do you think your lawsuit was handled property by Superior Court Judge Mary Teachout?

Browning: Public records requests lawsuits are supposed to be handled expeditiously — they’re supposed to be put on the top of the pile. This one took 14 and a half weeks. So, I’m very disappointed about that. I’m disappointed she allowed the extension of the dark shadow of executive privilege over people who are not part of the governor’s staff. I think that’s really an abuse of the claim of executive privilege.

VW: Why is this ruling controversial?

Browning: I do think this case was special because of the fact that the governor had missed a statutory deadline. I wouldn’t have a problem with the governor consulting all kinds of experts and people outside his staff. But in this case, where he missed a statutory deadline, I feel it was a special case.

VW: What did Act 48 require the governor to do?

Browning: Act 48 specifically instructed the administration to solicit feedback and input from Vermonters about this financing plan. … He could have just said I’m looking at these, or I’m looking at combinations of them. He might have been attacked, he might not have been attacked, but he could have done that. I think the fact that they couldn’t do that shows you that, while clearly you could make the plan work economically through a combination of taxes and public premiums, politically he was not comfortable (with it).

VW: Why do you think Shumlin denied your records request and later claimed executive privilege?

Browning: My feeling is they hid this for political reasons. But if that’s so, I think that is an abuse of executive privilege. Because executive privilege is supposed to make it so government officials can do a better job for us — to consider alternatives and develop plans that will be more effective for the public. It’s not supposed to protect you from inconvenience and embarrassment, and I think that’s the way they used it.

VW: What has the governor been hiding from Vermonters?

Browning: He didn’t like (the financing options). So they’re guarding it, they’re packaging it, they’re trying to make it palatable to the public. That’s what I think is going on. … Everyone knows which taxes it’s going to have to be. Senator Galbraith put out different scenarios. I’ll bet you that what they come out with is going to be some version of what Senator Galbraith had out there. They just were not ready to admit that’s what they were doing. I also think they will be trying to package it in a way that says, “Look it’s less here and less here, so even though you’re paying a lot more here, you’re better off.” I’m not sure that’s going to fly with Vermonters. I’m not sure it’s even true.

VW: Has Shumlin lost the trust of Vermonters for the single-payer financing plan he is about to present to the Legislature?

Browning: At this point it’s very hard for me to trust anything this administration says. Even if the reports they put out have valid data, they don’t tell the rest of the truth. They will distort things in my opinion.

VW: How have fellow Democrats responded to your lawsuit?

Browning: A number of Democrats have told me they … don’t like the fact that I filed a lawsuit and (said) I shouldn’t have done that. (It’s) OK if I did the public records request, but I shouldn’t have filed the lawsuit. I really felt I had no choice. I really felt I had to do that. So I think there are some Democrats who are very angry with me and there are some that understand but wish I hadn’t done it. They want everything quiet and private, and I think the legislative majority protected themselves as well as the governor, but I don’t think that was right.

VW: What impact is the governor having on transparency and accountability in state government?

Browning: Elections are our opportunity for accountability. By not being transparent, the governor prevented Vermonters from holding him accountable. I was trying to hold him accountable on behalf of Vermont with my public records request and with my lawsuit.

VW: Is lack of transparency a widespread problem in Vermont?

Browning: I don’t know that it’s worse than any other state or better than any other state, but in this case you have the majority Democrats protecting the Democratic governor.

VW: What’s next in your fight for transparent government?

Browning: I don’t know if I will appeal. I’m not sure there are significant legal grounds for appeal. You can’t just appeal because you don’t like a ruling. You have to have a legal basis. I think I will pursue changes in the public records law in the Legislature to define expeditious so it can’t go on that long, and also to possibly restrict the claim of executive privilege.

VW: How did constituents feel about your actions?

There are some Democrats who are very angry with me, and there are some Democrats who think I am right but wish I wasn’t pushing it quite so far, and there are some Democrats who think I am doing the right thing because I’m upholding the principles. The bottom line though is that I’m in a two-seat district, and I was the top vote-getter in my district. I think I might have even got more votes than Shumlin did in my district.

VW: What did you learn from this?

Browning: I really learned a lot from this. I’m going to try to keep calling it as I see it. … Having people angry at you is not the end of the world if you think you did the right thing.

Contact Bruce Parker at bparker@watchdog.org