ACLU sues health commissioner over opioid settlement committee records

The ACLU of Vermont has filed suit against Vermont Health Commissioner Mark Levine, alleging that the state’s top health official illegally altered a document of recommendations about how to spend money from settlements with drug manufacturers and distributors .

The lawsuit , filed Wednesday in Washington County Superior Court, seeks redacted documents related to Levine’s alterations of the Opioid Settlement Advisory Committee’s recommendations and asks the court to declare that the health department violated Vermont’s Open Meeting Law .

It’s the latest development in a monthslong dispute between the ACLU and the Scott administration over the health commissioner’s decision to alter the group’s endorsement of overdose prevention centers, also known as safe injection sites.

“By playing politics and violating both the Vermont Open Meeting Law and the Vermont Public Records Act, the Scott administration not only threatened Vermonters’ access to life-saving overdose prevention centers—it also eroded trust between government officials and the people it is supposed to represent,” ACLU staff attorney Harrison Stark said in a press release announcing the suit.

Amanda Wheeler, a spokesperson for Gov. Phil Scott, said in an email that the lawsuit was driven by politics and that the ACLU was “simply not right on the law.”

“On the heels of the unfounded lawsuit filed by two senators just a few weeks ago, there seems to be a pattern of using the courts to distract Vermonters and the press in an election year,” she said in an email, referencing a separate lawsuit filed by two senators over Scott’s controversial decision to appoint Zoie Saunders as interim secretary of education.

“It’s notable that, yet again, the lawsuit is filed right as Vermonters are learning more about their property tax increase, as property tax bills – with an average increase of nearly 14% – are just beginning to hit taxpayers’ mailboxes,” Wheeler wrote.

The ACLU’s case stems from a convoluted chain of events surrounding the work of the Opioid Settlement Advisory Committee.

Vermont, along with other states, has filed suit against drugmakers and distribution companies for their role in the nationwide opioid epidemic. As part of settlements with those companies, Vermont is due millions of dollars over multiple years. The advisory committee, a body of officials, lawmakers and advocates, has been tasked with making suggestions about how Vermont should spend that money.

In December, the committee produced a list of recommendations that included $2.6 million — about half of the total available amount this year — for overdose prevention centers, staffed facilities where, advocates argue, people can use drugs safely without fear of overdosing.

The proposal to fund the centers received broad support from committee members.

Redacted emails, produced in response to a public records request from the ACLU, show that Levine — the nonvoting chair of the advisory committee — then consulted with other members of Scott’s administration. Afterward, Levine sent an altered list of recommendations to lawmakers, one that did not include funds for overdose prevention centers.

“One of the highest tier priority recommendations from the committee that does not appear in this letter is for the funding of two overdose prevention centers,” Levine wrote in a Jan. 16 letter to the chairs of the House and Senate appropriations committees. “It is clear that the legislature plans to fund these centers from a non-settlement source.”

That referred to a bill , then working its way through the legislature, that would fund two overdose prevention centers with a separate source of money. Scott — Levine’s boss — had been consistently opposed to that legislation, and ultimately vetoed its final version in May. Lawmakers overrode that veto a month ago.

According to the ACLU’s lawsuit, Levine also edited other aspects of the committee’s recommendations, including removing “all references to harm reduction,” a strategy that prioritizes reducing the negative impacts and dangers of substance use.

Because that change was made unilaterally by the health commissioner, the ACLU argued, it violated Vermont’s Open Meeting Law.

In response , the health commissioner said that his list of recommendations was, in fact, the department’s “budget submission” — a separate document that is not beholden to the same laws governing the Opioid Settlement Advisory Committee. Thus, Levine said, he acted appropriately in submitting the altered list.

But the ACLU argued that Levine’s list “purported to speak for the (Advisory) Committee—not for the Department nor as Dr. Levine acting as Commissioner.”

The ACLU also is seeking unredacted copies of the communications between Levine and administration officials sent prior to Levine’s letter. Those communications were initially redacted due to attorney/client privilege, emails show, but administration officials later claimed executive privilege in redacting them.

That appeared to be a novel interpretation of executive privilege, Stark, the ACLU attorney, said in an interview. Executive privilege is only supposed to apply to communications involving the governor, Stark said.

“We’ve never seen before, as far as I know, an instance like this, where you have an agency head asserting executive privilege on their own behalf to shield communications,” he said.

The lawsuit asks the court for a judgment “that executive privilege is limited to communications directly with the Governor in the course of deliberations furthering authorized gubernatorial acts.”

The suit names Levine, the health department and the Opioid Settlement Advisory Committee, which is connected to the health department, as defendants. Ben Truman, a spokesperson for the health department, said that the department has not yet been served with the suit.

“So, once we have had a chance to review it formally, we can then respond to the ACLU’s allegations,” Truman said in an email.

Wheeler, the spokesperson for the governor, pointed out that much of the debate about overdose prevention centers has already been settled: Lawmakers have already passed legislation funding such a site with settlement money.

“Their case, like the case made relating to the Education Secretary appointment, is unfounded, and (it’s) unfortunate taxpayer dollars are being further wasted for political purposes when they are already so overburdened by decisions made by the Legislature,” Wheeler wrote.

Read the story on VTDigger here: ACLU sues health commissioner over opioid settlement committee records .