As chair of the Senate Appropriations Committee, Sen. Jane Kitchel, D-Caledonia, has exceptional power over how Vermont distributes its $8 billion state budget. Near the end of every legislative session, the decisions she and her colleagues reach can make or break state programs — as well as the many Vermont nonprofits that rely on state funding.
Kitchel, and many of her colleagues across the House and Senate, also serve on the boards of some of those same nonprofits.
A Danville resident who hails from a family prominent in local and state politics, Kitchel serves on the board of a hospital, an economic development organization, an assisted living community and a chamber of commerce — all dedicated to improving the Northeast Kingdom. She is the secretary of the board of Northeast Kingdom Human Services, the designated agency for Essex County.
“Vermont is a very small place,” Kitchel said. “Legislators are on school boards. They’re on select boards. They are on planning commissions. So oftentimes, what they’re doing for community and civic engagement is going to intersect with the work of the Legislature.”
Disclosure forms analyzed by VTDigger for its Full Disclosure series require lawmakers to list their membership on boards or commissions that receive state funding or are regulated by the state. But these forms keep a lot of information vague, making it challenging to ascertain the potential for conflicts of interest. And while the House and Senate do have policies to curtail such conflicts, the only entities that can enforce those rules are the chambers themselves.
Board membership — for entities ranging from selectboards to arts organizations to regional development organizations — can mean many different things. In some cases, board members make big decisions for private organizations and have legal and financial responsibilities. Others play an advisory role or act as community ambassadors, but hold no real decision-making power.
A handful of lawmakers serve organizations that could be directly impacted by the policies crafted in their own legislative committees. The chairs of the House and Senate health care committees, Rep. Lori Houghton, D-Essex, and Sen. Ginny Lyons, D-Chittenden Southeast, serve on the UVM Children’s Hospital Community Advisory Council. Rep. Topper McFaun, R-Barre Town, of the House Health Care Committee (and formerly a member of the House Human Services Committee) serves on the board of Central Vermont Home Health and Hospice.
Rep. Laura Sibilia, I-Dover, vice chair of the House Committee on Environment and Energy, which oversees broadband infrastructure, also serves on the Vermont Community Broadband Board — a government body created under a 2019 state law that is tasked with managing hundreds of millions of dollars in broadband funding.
Kitchel is hardly the only lawmaker to contribute to a local designated agency — private non-profits that rely on public dollars to provide mental health and disability services within a regional monopoly.
The Howard Center, the designated agency serving Chittenden County, counts among its board members Rep. Trevor Squirrell, D-Underhill, who serves on the House Appropriations Committee, and former Rep. Ann Pugh, who retired from the Legislature earlier this year after serving as chair of the House Human Services Committee.
Serving on the board of Lamoille County Mental Health Services are Rep. Joseph “Chip” Troiano, D-Stannard, and Rep. Saudia Lamont, D-Morrisville.
Some of these designated agencies hire lobbyists to push their case before state lawmakers. The Howard Center has spent $12,000 on Leonine Public Affairs lobbyists so far this session, to advance its interests in Montpelier. Northeast Kingdom Human Services, the designated agency on whose board Kitchel serves, hired two Downs Rachlin Martin lobbyists for this legislative session, though they haven’t received compensation, according to disclosures filed with the Secretary of State’s Office.
In interviews, several lawmakers, as well as leaders of some of these nonprofits, described legislators’ involvement in local organizations as a real strength. They argued that lawmakers are in constant communication with constituents and should be especially attuned to their neighbors’ concerns.
Kelsey Stavseth, executive director of Northeast Kingdom Human Services, agrees.
“We are always trying to recruit board members with a strong connection to the community, experience and knowledge of the issues we provide services for, and someone with strong values and ethics that want to serve their community in a volunteer capacity,” Stavseth wrote in an emailed response to VTDigger’s questions. “Being a legislator is only one facet of the many strengths Jane brings to our board.”
Local civic engagement is also a sort of obligation, Kitchel argued. Lawmakers should be involved in their communities, working directly on the issues about which they care.
“I think it’s a value statement, around what is your commitment to civic engagement?” Kitchel said. “For me, (it’s) trying to give your time and talent in a way that can benefit the people who live in your communities.”
When Kitchel works with a board, she said, she brings years of experience making tough financial calls on large budgets. Her legislative colleagues can bring their own expertise, in their own policy areas, to their local civic life.
“I don’t find it to be such a terrible transgression if there is no direct financial or personal financial interest in it, and really what you have is just an interest, because you care about this organization,” said Paul Burns, executive director of the Vermont Public Interest Research Group.
Under a long-standing parliamentary rule, this is also how lawmakers are instructed to define conflict of interest: Does a legislative decision bring them a specific financial benefit, differently than other Vermonters?
“I don’t see it as a conflict of interest,” Kitchel said of her board involvement, “because I would never put my board work ahead of my responsibility as a legislator to do what is in the best interest of the state of Vermont.”
‘I’m not them’
The Children’s Hospital asked Lyons and Houghton to join the council years ago — well before either became committee chairs — according to Dr. Lewis First, chair of the Department of Pediatrics at UVM Medical Center. The medical center’s government and community relations department identified some lawmakers who seemed interested in children’s health, he said, and passed their names along as possible recruits.
“It’s fortuitous that they are now the chairs of the health committees, but it was not the intent when they came on,” First said.
When he formed the council more than 25 years ago, First said, it was largely to promote the hospital’s work. He worried the public didn’t even know that Vermont had a children’s hospital.
“I need to have a way to get this information to people, OK, but I’m not using these people to be conflicted with what they’re doing,” First said. “And nor do they bring in what they’re working on in the Legislature.”
In their positions on the Children’s Hospital Advisory Council, Houghton and Lyons have no decision-making powers over the hospital or its finances, First said, noting that council members are volunteers and receive no compensation.
He described the board as a “focus group” meant to connect the hospital to communities across the state, and to foster goodwill ambassadors among different community leaders, ranging from superintendents to nurses to lawmakers.
Both Houghton and Lyons said they found their roles on the advisory board helpful to their work in the Statehouse. Lyons emphasized that she maintained her own independent judgment, separate from the wishes of the medical center, when making policy decisions.
“I’m not them,” she said. “I am a legislator.”
Houghton said that, in general, she viewed lawmakers’ involvement outside the Statehouse as a good thing. “If we don’t know what’s going on in our communities and what’s affecting our families and people who live in Vermont, how can we be good legislators, right?”
While Houghton and Lyons’ seats on the council don’t come with voting powers, other lawmakers’ board roles give them fiduciary responsibility. As a board member for Central Vermont Home Health and Hospice, McFaun said he participates in “big decisions” about the nonprofit’s finances, fundraising, policies and services. The organization doesn’t pay him, according to his disclosure, and he said it’s actually the reverse — he donates to the organization.
McFaun, a ranking member on the House Health Care Committee, said he has worked on bills that impacted Central Vermont Home Health and Hospice, but in each case the legislation affected all home health agencies equally.
“We’re delivering the whole pie,” McFaun said in an interview, adding that each of those agencies comprised just a slice of the statewide sector. McFaun also noted that none of this legislative decision-making would benefit him financially and, therefore, did not create a conflict of interest.
McFaun’s criteria for assessing conflicts of interest comes directly from the Office of Legislative Counsel, which alongside the House clerk, schools lawmakers on their own ethics rules every biennium. Under House Rule 75 — which has been in effect since the 1800s — state representatives have a conflict (and must recuse themselves) when they are “immediately or directly interested” in a policy under debate.
In practice, “directly interested” has a narrow interpretation: It must be an issue with direct financial benefit to an individual lawmaker. That benefit must be more specific than a lawmaker’s membership in a wider, affected group. For example, legislative counsel Michael O’Grady told House lawmakers, veterans with a military pension can vote on bills related to all military pensions. It is only a conflict if the bill calls out their pension more specifically. This practice is known as “private bill,” and it’s rare.
“It’s a very high bar. Otherwise, you wouldn’t have educators being able to vote on education, farmers who couldn’t vote on the organic farm money,” Kitchel said of the policies.
Money is the be-all and end-all of these ethics rules. Therefore, if a lawmaker receives no compensation for serving on an organization’s board, there are no rules that would deem that role a conflict of interest.
Even if there were, the only bodies that can enforce each chamber’s ethics rules are the chambers themselves. The courts have deemed this a separation-of-powers issue.
“You are self-policing, self-enforcing, in order to preserve the integrity of your body,” O’Grady told House lawmakers during a Jan. 26 training.
The ethics code, and legislative rules of recusal, are narrow by design, House Clerk BetsyAnn Wrask told lawmakers. Constituents expect lawmakers to be in the fray, debating and voting on policy, not hovering on the sidelines as neutral arbiters. Having some kind of interest is inherently part of the job description, Wrask said.
Burns, of VPIRG, which lobbies for open government principles, draws a similar line. “Generally, we kind of come down to the line that what makes a difference is, are you going to make money off of it in a way that is different from the average person?” Burns said.
Before he ran for office, McFaun had spent his career working in human services. He was drawn to the field because of his own life experience, he said. His mother died when he was very young, and he was raised by various extended family members.
“That’s where my expertise is,” McFaun said. “That’s where my heart is.”
McFaun has, at times, drawn upon his legislative experience to explain state bills and policies to the home health organization, or tell them how to apply for loan programs. He sees that as akin to his other constituent services, he said, in which he helps connect individuals to existing government programs.
‘Two or three hats’
When the Legislature created the Vermont Community Broadband Board in 2019, it specified who could nominate people to the five-member entity. The governor got two nominees; the House speaker and Senate president pro tempore each got one, and the state’s communications union districts could select the final member.
But Act 79, the law that created the state’s broadband board, also restricted who could serve on the body. It barred the speaker and pro tem from nominating fellow lawmakers, and the CUDs couldn’t nominate anyone who served on their local governing boards.
That particular restriction on CUD leadership was meant to prevent a conflict of interest, according to F.X. Flinn, former president of the Vermont Communications Union Districts Association. The broadband board would be distributing statewide broadband funds to local CUDs, so that rule was designed to prevent a statewide board member from self-dealing to their own district.
But this also presented a challenge, Flinn said. Local, community-run broadband is a niche field. Anyone in Vermont with that expertise likely served in their local district. The Vermont Communications Union Districts Association, or VCUDA, put out a call for anyone interested in representing it on the statewide board. Sibilia volunteered. As one of the leading lawmakers behind Vermont’s broadband statute, she was far-and-away the best candidate, Flinn said.
“Everybody who’s involved civically in Vermont is gonna wind up wearing two or three hats,” Flinn said. “There’s just not enough people to go around.”
Still, it “gave them pause,” Flinn said, so VCUDA checked with its lawyer and the Office of Legislative Counsel, and both gave the green light. Sibilia also ran her nomination by the Legislature’s lawyers on multiple occasions, and they consistently told her that there was no conflict of interest.
“I took it very seriously,” Sibilia said in an interview in January. “And if I was told that there was a conflict of interest, by an attorney, I would step down.”
In emails with legislative counsel, which Sibilia shared with VTDigger, the Legislature’s lawyers gave multiple reasons why she was OK to serve on the statewide board. For one, they wrote, no single legislator or committee has direct control over the Vermont Community Broadband Board — only the General Assembly as a whole.
Lawyers also noted that Sibilia’s only financial gain from VCBB would come from per-diem compensation, as dictated by state law.
Sibilia has received at least $10,000 in per diem compensation since she was appointed to the board in July 2021. Per the broadband law, Sibilia and other VCBB members are paid $250 per day for their work on the board.
If there were a bill before the Legislature to increase the per diem amount for VCBB members, Sibilia would recuse herself, she said, to avoid voting for her own financial gain.
Like other lawmakers, Sibilia pointed to Vermont’s modest size — so small that a rising tide, a new road, a better internet connection for the house down the street, would inevitably benefit the people who crafted the policy as well.
“Vermont is very small. And the CUDs themselves are made up of a lot of leaders in their own communities,” Sibilia said. “And so are they going to benefit from community broadband being built out? Yes. And so are their neighbors.”
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