STAMFORD — The Select Board on Tuesday doubled down on its recent defiance of Gov. Phil Scott’s health emergency orders, voting to “terminate” the governor’s restrictions relating to COVID-19 and impose local regulations.
Three of the five board members supported the motion, saying they would likely follow most of Scott’s emergency orders but not any they believe trample on rights guaranteed in the U.S. and Vermont constitutions.
Daniel Potvin and Michael Denault, who led the advocacy for the action during a more than 90-minute debate, and Carol Fachini voted in favor. Chairwoman Nancy Bushika and Christopher Warren voted against.
The proponents based the legal validity of their action on Title 20, Section 13 of Vermont law, which attorney Deborah Bucknam, of Walden, the vice chairwoman of the Vermont Republican Party and a former candidate for attorney general, recently cited in a column that has appeared on conservative websites in the state.
The board said during the teleconference meeting that they had met with Bucknam in executive session, and that she has agreed to represent Stamford if the governor rejects Stamford’s revolutionary contention, as he is expected to do.
“It won’t cost the town any money,” Potvin said, as the attorney has agreed to represent the town pro bono.
Title 20, Section 13 states in paragraph 3 that the governor, “Upon receiving notice that a majority of the legislative body of a municipality affected by a natural disaster no longer desires that the state of emergency continue within its municipality, shall declare the state of emergency terminated within that particular municipality. Upon the termination of the state of emergency, the functions as set forth in section 9 of this title shall cease, and the local authorities shall resume control.”
The governor’s attorney was not persuaded when asked about the contention highlighted in Bucknam’s column.
Rebecca Kelley, director of communications for Scott’s office, said in an email, “The governor’s legal counsel Jaye Pershing Johnson, has looked into this previously in response to inquiries [during press conferences at the Statehouse]. She has affirmed that a municipality cannot terminate a governor’s state of emergency order because the totality of the law makes clear the governor’s orders have force of law and municipalities cannot take action inconsistent with the governor’s general direction and control of an emergency.”
At least two other sections within the set of laws cited by Bucknam — Title 20 — counter her argument, the governor’s counsel wrote.
A section Johnson cited in a communication to the governor’s office includes:
“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.”
She highlighted the language shown above in italic.
The board’s action on Tuesday followed more than a month of sometimes heated debate among townspeople and officials over alleged violations of residents’ constitutional rights by state restrictions related to the COVID-19 pandemic.
A number of townspeople — and a majority of Select Board members — had earlier made clear their opposition to at least some of the state of emergency restrictions Scott has placed on travel and public or multi-family holiday gatherings in light of a surge in COVID-19 cases this fall.
A number of other residents, including several during the meeting Tuesday, said they believe Scott’s actions are constitutional and have helped hold Vermont’s infection rate to the lowest in the nation.
The debate at the meeting often returned to whether the speaker believed the governor’s orders violated the constitution and/or have been reasonable in the face of a pandemic.
“It doesn’t make sense at all,” Stamford resident Pat Sullivan about the board’s proposal during the meeting. “In fact, it horrifies me.”
She added, “I don’t think anything is being done” that doesn’t comply with the constitution.
Potvin decried state orders to quarantine after visiting other states, restrictions on large family or public gatherings and face mask requirements, saying such orders “violate the constitution,” in part because they were imposed without normal due process of law.
He argued it is important to stand up against such measures because it could lead to more loss of personal freedoms later on.
In other states, including Massachusetts, which Stamford borders, “tyrant governors” have gone too far in issuing orders and imposing fines or other penalties for violations, Potvin said.
Scott hasn’t enforced the orders heavy handedly, he said, “But that could change.”
“My opinion,” Denault said at one point, “is this is a constitutional issue.”
He said he wants to town to have more control in preventing infringements on the rights of residents.
Neither Potvin nor Denault has been wearing a mask in the board’s meeting room. Potvin said they are able to keep a 6-foot distance, while Denault said he has a medical reason for not wearing one.
Among those who called into the meeting to speak were Carolyn Brooks, who asked the board why residents should believe the town could better respond to the pandemic than the Scott administration, which has “kept the [COVID] infection rate the lowest in the country.”
She said she believes the state’s emergency orders seem reasonable. In terms of cracking down on violations, such as involving quarantine mandates for travel outside Vermont, Brooks asked, “Has that happened?”
Potvin, Denault and Fachini said they’re concerned that harsher crackdowns by state government could occur, such as fines or more forced closures of businesses or churches, and based on what they see happening in other states.
“I think my governor has made the state the safest in the county,” countered resident Helen Fields, “and I’m not willing to change that.”
Resident Clay Zeller Townson and others asked the board members for specifics about what they would do if they won their case in the courts, and whether the town is prepared to take over the job of managing a response to COVID, lacking the state’s medical and other resources.
Bushika said prior to voting against the proposal that she didn’t feel qualified to oversee local COVID guidelines should the town prevail in terminating the state regulations.
She added that she would also want to check first with a town attorney before proceeding.
Potvin and Denault said they see the issues as primarily involving common sense, and that residents are qualified to determine if there are state orders they should reject or revise to protect constitutional rights. Most of the time, they said, the town would likely still follow Scott’s COVID guidelines.
Some have suggested that a town meeting vote should be required on the proposal, but Potvin argued that it is something the elected Select Board must decide, in part because the local board is cited in the law provision cited by attorney Bucknam in her column.
Bill Levine, the town’s emergency management coordinator, said Tuesday he had checked with both the Secretary of State’s office and the Vermont League of Cities and Towns and each advised that the board check with its legal counsel before declaring the governor’s orders “terminated” in Stamford.
Potvin and Denault also continued to argue Tuesday, as they and several other residents have during past board meetings, that “this is not an emergency,” given the low number of deaths from COVID-19 in Bennington County, three in the most recent state reports.
Others argued Tuesday, and have previously, that Stamford borders Massachusetts, which has seen 11,958 deaths, including 132 in Berkshire County, where many town residents work or have relatives.
In addition, in Vermont as a whole, four people died of COVID-19 within the past day, the state reported, and the death toll is now at 134. There have been more than 7,276 cases statewide, including 74 more cases reported over the past day.
The constitutional rights complaint first surfaced at a meeting in November as the town was preparing to hold a Christmas tree lighting ceremony outside Stamford Elementary School. The board decided to allow the gathering on Dec. 4, despite state restrictions on public gatherings.
That event, reportedly attended by about two dozen of the town’s 800 residents, was preceded by a Dec. 3 board meeting. During that session, state Rep. Laura Sibilia, I-Dover, was told by Potvin that the governor and the Legislature have been “running over” the constitution during the state of emergency.
Potvin was the most outspoken against the governor’s restrictions, according to a Dec. 7 report from Vermont Public Radio.
At one point, Potvin told Sibilia, who offered to ask state officials to come to Stamford to explain the reasoning behind the restrictions, that there were “communist” influences at work in state government undermining the freedoms of Vermonters.
Potvin added, according to the VPR report, “You can tell your comrades when you’re up there that we’re not gonna put up with it down here.”
At a Dec. 17 meeting, the board received a citizen petition from two young men urging the board to reaffirm that it will uphold the federal and Vermont constitutions. The petition reportedly included 58 names.
Submitted along with the petition by Brandon Field and John Paul Potvin were quotes about resisting tyranny from Thomas Jefferson, who had written in reference to the American rebellion against the British Empire and King George III.
The quotes were read to the board by John Potvin. Among them was, “Who will govern the governors? There is only one force in the nation that can be depended upon to keep the government pure and the governors honest, and that is the people themselves. They alone, if well informed, are capable of preventing the corruption of power, and of restoring the nation to its rightful course if it should go astray. They alone are the safest depository of the ultimate powers of government.”
The petition also states in part, “Neither the legislature nor any executive or judicial officer may disregard the provisions of our Constitution which our founding fathers fought to establish and generations of veterans shed blood to preserve. No kind of emergency, perceived threat, or suspect danger is reason to usurp our rights and liberties as citizens of this great nation.”
Said John Potvin, “A lot of people feel that their rights have been threatened, and may be threatened in the future.”
Field said they wanted the board to “sign on to this” the way several towns did earlier this year in declaring a “sanctuary” against gun control legislation they consider in violation of the U.S. and Vermont constitutions.
John Potvin added, “I think we are all a little bit worried for the future and we feel we want to do something to make sure our rights aren’t run over.”
The governor “might have the greatest intentions in mind,” he said, “but it is hurting people … and ruining people’s livelihoods.”
While voting 4-1 to reaffirm they will uphold the constitutions, the board also decided to send the petition and their declaration to all town boards in Bennington County, as well as to the governor and state and federal lawmakers.
One board member, Warren, said he didn’t want it to be implied that the board has not been upholding the constitution, because he believes the board has.
Voting in favor of the declaration and to send the petition to the local, state and federal officials were Bushika, Potvin, Denault and Fachini.
Sibilia, who represents the town in the Vermont House, and the county’s senators, Dick Sears and Brian Campion, both Bennington Democrats, all said they had received the petition from the Stamford board.
“I continue to hear from Stamford residents who are concerned about the actions being taken by the select board,” Sibilia said Monday in an email. “I’ve encouraged residents to share those concerns directly with those they have elected to the select board at their meetings. Residents have a right to understand what — if any — repercussions there will be should the town try to take this action. I have reached out to the governor’s office for assistance helping to solve challenges the town is encountering. I am not aware of the select board accepting the offer for assistance.”
The “contention is that the governor’s executive orders are unconstitutional,” Sears said in an email. “I respect their right to protest the governor’s executive order; that said, I have been a supporter of the governor’s efforts to keep Vermonters safe during this unprecedented pandemic.”
Sears added that he’s not readily familiar with the section of law cited in support of allowing town officials to opt out of the state orders, “but I suspect the Vermont courts, if pressed, would find the governor’s executive orders constitutional in terms of a town refusing to comply since Vermont is a strict Dillon’s Rule state and not a home rule state.”
Dillon’s rule refers to a judge’s ruling in 1868 which affirmed the previously held, narrow interpretation of a local government’s authority, in which a sub-state government may engage in an activity only if it is specifically sanctioned by the state government.
Campion said in an email, “I’ve reached out to legislative counsel for an opinion on this matter, but I want to be clear that I support the governor’s efforts. The state mandates other health requirements such as vaccinations in order to keep people safe, and I want to encourage everyone to continue to wear their masks, social distance, get tested, and follow the governor’s guidelines around gatherings.”
A joint statement from Sears and Campion later Monday said that an opinion sought from the Office of Legislative Counsel agreed with the assessment of the governor’s legal counsel on Scott’s authority during an emergency.
The running debate on these issues flared here both before and after the board decided to go ahead with a Christmas tree lighting ceremony outside the Stamford School on Dec. 4, despite Scott’s recently announced restrictions on gatherings during the holidays.
Kevin Hoyt, an unsuccessful former Republican candidate for the Vermont House from Bennington, and more recently an independent candidate for governor, attended the board’s Dec. 17 meeting and urged that other select boards in the county be sent the petition and the declaration of upholding the constitutions.
He later declared in a Facebook post that the Stamford board’s actions created “One of the first conservative autonomous zones in the Nation.”
Asked about enforcement of the governor’s restrictions on large gatherings, Adam Silverman, spokesman for the Vermont State Police, said there have been no citations issued. He said troopers “spoke with the Stamford town clerk to provide educational guidance on the executive orders, which is in line with our general enforcement posture of reaching out for educational purposes when we are made aware of situations. I’m told the conversation was a good, respectful one.”