Gov. Phil Scott said today at a press conference he and his legal team “feel we are on very solid ground constitutionally” after the Town of Stamford voted Tuesday night to defy the governor’s emergency pandemic orders.
Stamford Selectboard member Dan Potvin confirmed Wednesday the board voted 3-2 on the following 12/29 agenda item: “Termination of Governor’s Emergency Order pursuant to V.S.A. Title 20 section 13(3) and implementation of local recommendations for safety and protection.”
At issue is a state law that seems to say that municipalities may overrule a governor’s executive order. According to St. Johnsbury attorney Deb Bucknam, “Vermont Statute Section 13(3) of Title 20 provides that the governor “shall” declare the state of emergency terminated in a municipality when the ‘majority of the legislative body of a municipality affected no longer desires that the state of emergency continue within its jurisdiction.’”
That doesn’t mean what you think it means, Scott administration legal counsel Jaye Pershing Johnson in effect replied. In an opinion given to Vermont Daily Dec. 9 by Scott press secretary Rebecca Kelley, Johnson said other state laws “clearly prohibit actions inconsistent with the Governor’s general direction and control of the emergency.” In particular she cites:
“20 V.S.A. § 16. Orders, rules and regulations – The towns and cities of the state and other agencies designated or appointed by the governor are authorized and empowered to make, amend and rescind such orders, rules, and regulations as may be necessary for emergency management purposes and to supplement the carrying out of the provisions of this chapter, but not inconsistent with any orders, rules or regulations promulgated by the governor or by any state agency exercising a power delegated to it by him or her. (Amended 1989, No. 252 (Adj. Sess.), § 14.)”
In other words – the state’s emergency authority trumps municipalities’, Persing claims.
Not so, Bucknam responded via email with several legal arguments, including:
The 13(3) statute is unambiguous and must be allowed to take effect;
Use of the words “must” and “shall” make the actions mandatory;
Laws must not be construed in such a way as to make them ineffective.
Today, Scott seemed confident his lawyer has the better case. “I heard the Attorney General has weighed in and sent a letter to the town. Our general counsel feels we have nothing to be concerned about,” he said. “Just declaring it (the state of emergency) over doesn’t make it so. We still have an emergency on our hands.”
Minutes of the 12/29 meeting were not available at presstime.
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