Aclu v. Dept Health

Termont Superior Court
Filed 05/07/25
Washington Unit

VERMONT SUPERIOR COURT CIVIL DIVISION
Washington Unit Case No. 24-CV-02754
65 State Street
Montpelier VT 05602
802-828-2091
www.vermontjudiciary.org

American Civil Liberties Union Foundation of Vermont v. Vermont Department of Health et al

Opinion and Order on Defendants' Motion to Dismiss

In 2022, the legislature created a special fund known as the Opioid Abatement

Special Fund (the Fund), consisting of "all abatement account fund monies disbursed to

the Department [of Health] from the national abatement account fund, the national

opioid abatement trust, the supplemental opioid abatement fund, or any other settlement

funds that must be utilized exclusively for opioid prevention, intervention, treatment,

recovery, and harm reduction services." 18 V.S.A. § 4774(a)(1); see also 32 V.S.A. §§ 585-

588 (administration of "special funds" generally). The legislature also created a system

by which annual recommendations for expenditures of Fund resources would be made to

the legislature from both a newly created Opioid Settlement Advisory Committee

(Committee) and, separately, the Department of Health (Department). This case arises

out of that recommendation process as it unfolded in December 2023 and January 2024

with respect to fiscal year 2025 expenditures.

Plaintiff American Civil Liberties Union Foundation of Vermont (ACLU) believes

that, during that time, the Office of the Governor, acting through the Department and

Commissioner Levine, improperly usurped and perverted the Committee's principal

function. That view informs the open meeting law claims that it raises in this case and

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led it to request public records that were, in part, denied under an assertion of executive

privilege. The ACLU also challenges in this action that latter withholding of records.

The ACLU’s claims under Vermont’s Open Meeting Law (OML), 1 V.S.A. § 310–

314, are asserted against both the Committee and the Department. Its public records

claim is asserted solely against the Department. 1 V.S.A. §§ 315–320 (Public Records Act

or PRA). Also named as a defendant is Dr. Mark Levine, Commissioner of the Vermont

Department of Health, in his official capacity only. There is no meaningful difference

between Commissioner Levine in his official capacity and the Department itself (or the

Committee, of which he was chair, at least in this particular context). See Kentucky v.

Graham, 473 U.S. 159, 166 (1985) (“As long as the government entity receives notice and

an opportunity to respond, an official-capacity suit is, in all respects other than name, to

be treated as a suit against the entity. It is not a suit against the official personally, for

the real party in interest is the entity.” (citation omitted)).

The Committee and the Department are separate governmental entities with

potentially disparate interests. In this action, though, they are jointly represented, have

jointly filed a motion to dismiss both the OML and PRA claims, and take no differing

positions on any issues. They argue that the OML claims misunderstand what actions

were taken by the Department as opposed to the Committee, and the partially

unsatisfied records request is subject to executive privilege.

I. Procedural Standard

A motion to dismiss for failure to state a claim faces a high bar. The Vermont

Supreme Court has described the familiar standard for Rule 12(b)(6) motions to dismiss

for failure to state a claim as follows:

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A motion to dismiss . . . is not favored and rarely granted. This is especially
true when the asserted theory of liability is novel or extreme, as such cases
should be explored in the light of facts as developed by the evidence, and,
generally, not dismissed before trial because of the mere novelty of the
allegations. In reviewing a motion to dismiss, we consider whether, taking
all of the nonmoving party’s factual allegations as true, it appears beyond
doubt that there exist no facts or circumstances that would entitle the
plaintiff to relief. We treat all reasonable inferences from the complaint as
true, and we assume that the movant’s contravening assertions are false.

Alger v. Dep’t of Labor & Indus., 2006 VT 115, ¶ 12, 181 Vt. 309, 316–17 (citations and

internal quotations omitted); see also 5B A. Benjamin Spencer, et al., Fed. Prac. & Proc.

Civ. § 1357 (4th ed.) (“Ultimately, the burden is on the moving party to prove that no

legally cognizable claim for relief exists.”). In examining such a motion, the Court is not

required to accept bald legal conclusions unsupported by any factual allegations,

however. Colby v. Umbrella, Inc., 2008 VT 20, ¶ 10, 184 Vt. 1, 9.

The record for Rule 12(b)(6) purposes generally is limited to the four corners of the

complaint and any attachments to it. See Nash v. Coxon, 152 Vt. 313, 314–15 (1989).

II. Analysis

A. Opioid Settlement Statutes

To fairly understand the claims in this case, it is important first to understand the

statutory regime related to disbursements from the Fund. In 2022, the legislature

created the Fund, the Committee, and the process by which the legislature annually

receives recommendations for expenditures from the Fund. 2021, No. 118 (Adj. Sess.), §

1 (adopting 18 V.S.A. §§ 4771–4774). Those statutes were amended once before the

events of this case: 2023, No. 22, § 13. They have been amended three times since: 2023,

No. 85 (Adj. Sess.), § 51; 2023, No. 87 (Adj. Sess.), § 82; 2023, No. 113 (Adj. Sess.), §

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E.312.1. For purposes of this case, all references to 18 V.S.A. § 4771–4774 are to the

versions in the original enactment as modified by 2023, No. 22, § 13.

The general purpose of the Committee is “to provide advice and recommendations

regarding remediation spending from” the Fund. 18 V.S.A. § 4772(a). The Committee is

its own entity but receives “administrative, technical, and legal assistance” from the

Department. Id. § 4772(d). Its members are set forth at § 4772(b)(1) and include “the

Commissioner of Health or designee, who shall serve as a nonvoting chair.” Id. §

4772(b)(1)(A). Commissioner Levine, in fact, served as chair during the underlying

events. The Committee is charged with consulting with stakeholders, id. § 4772(c),

during the course of the year; and with identifying “spending priorities as related to

opioid use disorder prevention, intervention, treatment, and recovery services and harm

reduction strategies for the purpose of providing recommendations to the Governor, the

Department of Health, and the General Assembly on prioritizing spending from the

[Fund],” id. § 4772(c).

“Annually, the . . . Committee shall present its recommendations for expenditures

from the [Fund] to the Department . . . and concurrently submit its recommendations in

writing to the House Committees on Appropriations and on Human Services and the

Senate Committees on Appropriations and on Health and Welfare.” Id. § 4772(e)

(emphasis added).1 The statutes say nearly nothing as to the procedures the Committee

should use to arrive at and report its recommendations. It does say that the Committee’s

meetings “shall be consistent with” the OML, id. § 4772(f)(4), and that the Committee

1 The Committee’s recommendations to the Department are not expressly, statutorily

required to be in writing.
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“shall adopt procedures to govern its proceedings and organization, including voting

procedures,” id. § 4772(f)(3).

Separately, the Department, on or before January 15 of each year, submits to the

legislature a “spending plan . . . informed by” the Committee’s recommendations. Id. §

4774(a)(2). If the legislature thereafter makes a specific appropriation for funding from

the Fund, the Department then requests “to have the funds formally released from the

national abatement account fund, the national opioid abatement trust, the supplemental

opioid abatement fund, or any other settlement funds that must be utilized exclusively

for opioid prevention, intervention, treatment, recovery, and harm reduction services”

and disburses such funds to the Fund. Id. § 4774(a)(2); see also 18 V.S.A. § 4773

(designating the Department “as the lead State agency and single point of contact for

submitting requests for funding to the national settlement fund administrator”).

“Disbursements from the [Fund] shall supplement and not supplant or replace any

existing or future local, State, or federal government funding for infrastructure,

programs, supports, and resources, including health insurance benefits, federal grant

funding, and Medicaid and Medicare funds.” Id. § 4774(a)(3). In other words, the Fund

is supposed to be used for new programs and services rather than as a source of funding

for programs and services already otherwise funded or anticipated to be funded.

It is plain that the Committee’s general purpose is to make nonbinding

recommendations for programs and services funded through the Fund that would not

otherwise have funding, and the Department’s role is to seek formal funding for its own

recommendations for such programs and services that are “informed by” but not

necessarily determined by the Committee’s recommendations. The Department’s request

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to the legislature is due by January 15, so the Committee’s recommendations must be

reported sometime before that. Ultimately, the legislature makes the final call on how

settlement funds are spent after receiving the recommendations.

B. The Allegations

The complaint includes extensive allegations as to what happened from December

2023 through March 2024 and is supplemented by 20 attachments. The appearance is

that leading up to those events, the Committee had never adopted any written

“procedures to govern its proceedings and organization, including voting procedures,” 18

V.S.A. § 4772(f)(3), but had generally agreed to proceed according to Robert’s Rules of

Order. It is unclear whether or how it implemented Robert’s Rules, as it appears to have

conducted no formal votes to that effect.

Per the allegations of the complaint, the Committee’s final meeting of 2023, on

December 22, was intended to finalize its FY25 recommendations. Leading up to the

meeting, an administrator had circulated to members a “recommendations matrix”

including dozens of individual initiatives that had been under consideration. Members

were to rank the initiatives prior to the December 22 meeting. One of the two most

highly ranked initiatives was a proposal to spend approximately $2.6 million establishing

2 opioid prevention centers (OPCs), described as “supervised consumption facilities

where trained staff can connect individuals to services and intervene in the event of an

overdose or medical emergency.”

According to the ACLU, it was clear among those members at the December 22

meeting that their rankings for matrix purposes were not formal votes as to the

Committee’s recommendations, and it was understood that there would be a subsequent

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opportunity, after receiving input from three absent members, for everyone to formalize

the Committee’s recommendations. After that, a letter would be drafted presenting those

recommendations to the legislature. Despite the lack of formal voting, there was a

general consensus at the meeting as to the Committee’s top recommendations in general

and as to its enthusiasm for the OPC recommendation in particular.

At the time, the legislature was considering, and the Committee was well aware

of, H.72 (2023), which would have created OPCs without the use of Fund resources. See

2023, H.72, § 6 (as passed by House) (using Evidence-Based Education and Advertising

Fund resources for OPCs).

Following the Committee’s December meeting and without further consulting the

Committee, Dr. Levine drafted a letter from him to the Senate and House Appropriations

Committees, the subject line of which was “Opioid Settlement Funding

Recommendations for Fiscal Year 2024.” The Letter concludes with this: “Pursuant to 18

V.S.A. § 4774(a)(2), the Department, having been informed by the recommendations of

the Committee, hereby requests the authorization to $4,903,962 from the [Fund] to

support [the proposed] initiatives in fiscal year 2025.”

Those Departmental proposals are generally consistent with the Committee’s

rankings as expressed in the Committee’s recommendations matrix but OPCs are

omitted entirely and, according to the allegations, certain other policy choices

inconsistent with the Committee’s rankings are apparent. OPCs were addressed in the

Letter, however. As to OPCs, it explains:

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. It is clear that the legislature plans to fund these centers from a
non-settlement source [a reference to H.72]. Therefore, in keeping with
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principle one [“Spend money to save lives; use the funds to supplement
rather than replace existing spending.”], we have excluded this from the
current set of recommendations for use of settlement funds so as to
maximize our ability to support a broad array of initiatives. The committee
heard testimony on and/or directly discussed over 30 proposals. Those that
are detailed below were clearly those that committee members
overwhelmingly felt should be considered the highest priority for Vermont’s
use of settlement funds in fiscal year 2025. These proposed initiatives will
be evaluated for outcomes and effectiveness.

A copy of the Letter was sent to Committee members on January 12. The cover

letter accompanying it explains as follows:

I will call your attention to the following:

1. OPCs are not included as a spending request. This is because H.72
contains a provision for an alternate financing mechanism, mainly through
the Education and Research Fund that the pharmaceutical companies
routinely pay into each year. I look at this favorably, as it provides us with
more opportunities to fund a broader array of initiatives across the
continuum. Please note that I did clearly delineate the committee’s position
on OPCs.

2. The other 4 areas receiving highest priority from committee actions
(expanding methadone access in Burlington, stabilization beds, MMRP, and
recovery housing stipends) remain as discussed with one exception. That is
in the expanded access to methadone in the existing hub in Burlington. The
Governor was concerned that other hubs have an opportunity to expand
staff or hours in the same way as Burlington has considered. This seems
quite reasonable and more equitable, even though none have made requests
to us. Because there may be interest, an RFP or other such process may
reveal this. I therefore increased the amount of the request from $500,000
to $900,000.

3. Removing OPCs from the menu frees up $2.6 million. To further broaden
our recommendations, I looked at the remaining initiatives that had a high
number of Tier 1 and Tier 2 votes. It was quite clear that there were 3
items that stood out far ahead of all the others. They were VCJR, ongoing
and expanded funding of contingency management, and primary prevention
in the form of expanding Student Assistance Professionals and school-based
services. These conveniently and almost perfectly fit into the $2.6M
available—I only had to decrease the prevention dollars from the
$1.58M requested to $1.429M, which the sponsor of the initiative stated
would not pose any problem.

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4. All of the above requests enjoy support from the Governor.

Without further interactions with the Committee, Dr. Levine sent the Letter to the

appropriations committees on January 16.

The ACLU alleges that the Letter was drafted so that it appeared to be sent from

the Committee and to reflect that the Committee’s recommendations and those proposed

with the Letter were identical. It was, in the ACLU’s view, an act of the Committee

rather than the Department. The Department and the Committee, instead, take the

position that the Letter was reporting the Department’s proposed spending plan only. In

their view, it was an act of the Department rather than the Committee.

Another issued raised in this action concerns the minutes of the Committee’s

December 22 meeting. The Minutes of that meeting were not posted on the Committee’s

website until January 29. As to what happened at the meeting, the minutes, in total,

say: “The entire meeting was an open discussion about the funding proposals. Consensus

on the recommendations the committee rated highest priority was achieved.” It

continues, briefly: “Dr. Levine will formulate a letter to the Appropriations Committee

Chairs, which will be run by the committee when ready.” Next to the minutes is a link to

the Letter. There never has been a link posted to the oral recording of the December 22

meeting.

On January 29, 2024, the ACLU submitted a public records request to the

Department that sought, among other records, the following:

All records and correspondence between, among, or including Committee
Members regarding the Committee’s Funding Recommendations for Fiscal
Year 2025, including attachments.

This request includes, but is not limited to, any records or
correspondence concerning prior versions of what ultimately became the
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Funding Recommendations for Fiscal Year 2025 submitted to the
General Assembly on January 16, 2024.

Among the materials produced in response were some heavily redacted emails.

The ACLU sought review of that production by agency head Dr. Levine, who declined to

produce unredacted versions under an assertion of executive privilege. The PRA dispute

here is limited in scope to the appropriate breadth of that assertion of executive privilege.

In a February 15, 2025 letter to Dr. Levine, the ACLU complained that the series

of events above amount to several violations of the OML, largely predicated on its view

that Dr. Levine’s January 16 Letter was sent on behalf of the Committee rather than the

Department. See 1 V.S.A. § 314(b)(1) (requiring aggrieved person to give public body

notice and opportunity to cure before filing suit). Dr. Levine rejected the alleged OML

violations in a February 26 letter (on behalf of the Department) that concludes with this:

“I will be following up with an email to the Advisory Committee that includes a copy of

your letter and my response on behalf of the Department and a request that the Advisory

Committee include in the agenda for its next public meeting a discussion of the issues

raised in your letter. Your point that 18 V.S.A. § 4772 requires the Advisory Committee

to submit its own recommendations in writing to the Legislature should be addressed by

the members of the Advisory Committee in the context of a public meeting.”

The Committee’s next meeting, its first since the December meeting, was on

March 25. At that meeting, a majority of Committee members, ostensibly dissatisfied

with Dr. Levine’s January 16 Letter, voted to send a report of its December 22

recommendations to the appropriations committees directly from itself. A member other

than Dr. Levine drafted the Committee letter, which it sent to the legislature on April 23,

2024. The April 23 Letter expressly states that it is from the Committee itself.
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If any readers of Dr. Levine’s January 16 Letter were confused as to whether he

was speaking for the Department or the Committee, that circumstance may have been

compounded by the Committee’s April 23 Letter. It provides, in pertinent part, as

follows:

Consistent with 18 V.S.A. § 4774(a)(2), the purpose of this letter is to
describe the appropriations recommended by the Opioid Settlement
Committee to the Vermont General Assembly for Fiscal Year 2025.
Although the decision to submit a letter separate from one submitted by Dr.
Levine on behalf of the Vermont Department of Health and informed by the
Opioid Settlement Committee recommendations, was not unanimous, the
majority of the Committee voted to draft and submit its own letter of
funding recommendations. This letter has been circulated to all Committee
members with an opportunity to offer edits. The final letter was voted on
and approved by a majority of the Committee membership.

The Committee acknowledges that these recommendations should have
been transmitted to the General Assembly on or before December 2023,
however, with some months ahead before the final appropriations bills are
settled and sent to the Governor, the Committee hopes these
recommendations for appropriations from the Opioid Abatement Special
Fund will be considered.

The committee heard testimony on and/or directly discussed over 30
proposals, and strongly feels that these initiatives described below should be
considered the highest priority for Vermont’s use of settlement funds in
fiscal year 2025.

The listed initiatives each received a Tier 1 ranking from at least 8 of the 12
committee members. One of the highest tier priority recommendations is
for the funding of two overdose prevention centers and the committee
strongly recommends that the legislature fund this innovative and
important strategy from settlement funds. All these proposed initiatives
will be evaluated for outcomes and effectiveness.

It should be noted that these recommended appropriations differ from those
communicated separately by Dr. Mark Levine, on behalf of the Vermont
Department of Health and informed by the Opioid Settlement Advisory
Council, as required by Act 118 of 2022, on January 16, 2024, in the
following ways:

• Includes $2,600,000 for Overdose Prevention Centers

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• Reduces the recommendation for Recovery Housing, as this item received
only half of the committee’s support (from 6 of 12 members).
Removes appropriations for Expansion of Student Assistance
Professionals/Schools Based Services, Ongoing Support for Contingency
Management, and Vermonters for Criminal Justice Reform (VCJR) which
are valuable initiatives and were supported by many members but did not
receive a majority of committee support but were identified as the next tier
of supported recommendations in an individual ranking exercise
undertaken by the full Committee.

. . .

Pursuant to 18 V.S.A. § 4774(a)(2), the Department, having been informed
by the recommendations of the Committee, hereby requests the
authorization to spend $4,903,962 from the Opioid Abatement Special Fund
to support these initiatives in fiscal year 2025.2

While the Committee’s letter clearly distinguishes its view of its recommendations

from those of the Department as asserted in Dr. Levine’s January 16 Letter, it

incorrectly cites to 18 V.S.A. § 4774(a)(2) to explain why it is submitting its report to the

appropriations committees and then expressly purports to be speaking for the

Department in the final sentence quoted above.

As noted above, though, the Committee’s reporting requirement is in 18 V.S.A. §

4772(e). The Department’s separate duty to propose a spending plan for its “informed”

recommendations is at § 4774(a)(2). And the Committee has no more authority to speak

for the Department than the Department has for the Committee.

2 Ironically, perhaps, after the Committee sent its letter, the legislature amended the

funding mechanism in H.72 to use Fund resources for OPCs rather than non-Fund
resources, in apparent conflict with the guiding Fund principle that its resources should
be used only to “supplement and not supplant or replace any existing or future local,
State, or federal government funding for infrastructure, programs, supports, and
resources, including health insurance benefits, federal grant funding, and Medicaid and
Medicare fund.” 18 V.S.A. § 4774(a)(3). The Governor eventually vetoed H.72, and the
legislature then overrode the veto. H.72 thus became Act 178, with a $1.1 million
appropriation from the Fund for OPCs and another $300,000 appropriation from the
Fund to study them. 2023, No. 178 (Adj. Sess.), §§ 2(a), (4).
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C. The OML Claims

As a preliminary matter, the Court notes that the ACLU has asserted its OML

claims against both the Committee and the Department. The claims are properly

asserted against the Committee only. The only “public body” that arguably has violated

the OML is the Committee, not the Department. 1 V.S.A. § 310(6). Accordingly, the

OML claims, as asserted against the Department, are dismissed.

As to the Committee, in the ACLU’s view, Dr. Levine’s January 16 Letter was, in

fact, written and sent in his capacity as chair of the Committee to present the

Committee’s FY25 recommendations, and the changes it made to the Committee’s

recommendations (to the extent they were apparent at its December 22 meeting),

constitute unilateral actions by Dr. Levine that substantively changed the Committee’s

recommendations. First, it claims that 1 V.S.A. § 312 required such action to be

conducted by the Committee in an open manner rather than behind closed doors as

undertaken by Dr. Levine. Second, it asserts that Dr. Levine’s January 12 email to the

Committee, with the draft of what became the January 16 letter, was a communication to

a quorum of Committee members “for the purpose of discussing the business of the public

body” that was required to be a publicly noticed meeting of its own. Third, it contends

that the minutes of the Committee’s December 22, 2023 meeting are substantively

inaccurate and were not posted in a timely manner in violation of the OML.3 The

3 It is unclear why the timing of the Committee’s posting of the minutes of its December

22 meeting would be at issue here. The ACLU asserts that the minutes were posted on
January 29. Even if late, that was before it notified Dr. Levine of any alleged OML
violations. Any timeliness violation was cured before any controversy was presented. It
is unclear what relief the ACLU contemplates here as the timeliness issue, and the Court
sees no basis upon which to afford any.
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premise to the first claim and, to some extent, the second and third, is that Dr. Levine

modified the Committee’s December 22 recommendations and drafted the January 16

Letter and sent it to the legislature all on behalf of the Committee rather than the

Department.

The relevant statutes provide clear guidance as to what was expected of the

Committee and the Department. They provide for two sets of recommendations: those

produced by the Committee and those produced by the Department. The Department’s

recommendations are required to be “informed by” the Committee’s recommendations,

but the Committee’s recommendations do not determine the Department’s

recommendations. Similarly, the Committee and the Department have separate duties

to report their recommendations to the legislature, and the Committee’s report must

precede the Department’s (due no later than January 15) if it is to inform the

Department’s recommendations. In this instance, the only report of recommendations

anyone made to the legislature anywhere near the Department’s January 15 deadline,

was Dr. Levine’s January 16 Letter. By that time (or the day before), there should have

been two written reports, one from the Committee and one from the Department.

The ACLU’s insistence that the January 16 Letter was submitted on behalf of the

Committee, though not without some support, is not persuasive at the end the end of the

day. Read in full, the Letter is decidedly from Dr. Levine in his capacity as

Commissioner and reflects the recommendations of the Department. No doubt, the ACLU

has reasonable grounds to point out possible grounds for confusion: Dr. Levine is both

the Chair of the Committee and the head of the Department; while the Letter notes

differences with the Committee’s recommendations, it was not carefully drafted to

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delineate differences between the Committee and the Department; some verbiage used in

the Letter is admittedly confusing in that regard; and the potential confusion is

exacerbated by the lack of a prior and separate submission by the Committee. In the

final analysis, however, the Letter clearly purports to be proposing the 18 V.S.A. §

4774(a)(2) spending plan over which the Department has exclusive authority and the

Committee has none. Indeed, it is submitted on Department letterhead; from “Mark A.

Levine, MD, Commissioner;” and ends by noting specifically that it is a funding request

from “the Department,” after considering recommendations of “the Committee,” and is

submitted pursuant to the Department’s responsibility under “18 V.S.A. § 4774(a)(2).”

Only the Department is empowered to make recommendations under § 4774(a)(2), and

those recommendations are required by statute to be “informed by” the Committee’s

recommendations, which provides some explanation for the Letter’s references to the

Committee. In the Court’s view, the Letter presents the Department’s statutory

recommendations.

Moreover, the Committee expressly, though belatedly, determined to send its own

letter, apart from the Department’s January 16 Letter, at its March 2024 meeting. It

also recognized at that meeting and in its letter that the January 16 Letter was the

Department’s, not the Committee’s, submission. And, however confusing the specifics of

the Committee’s letter was, that letter clearly distinguished its recommendations from

the Department’s recommendations that had been presented in the January 16 Letter. It

also formally acknowledged in its letter that the January 16 Letter was from the

Department. It describes the January 16 Letter as having been sent “by Dr. Levine on

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behalf of the Vermont Department of Health and informed by the Opioid Settlement

Committee recommendations.”

Consistently, both the Department and the Committee in this litigation have

confirmed their positions that the January 16 letter was sent to satisfy the Department’s

obligation to make recommendations exclusively, and the Committee’s later letter was

sent to present its different recommendations. Between the Committee and the

Department, there is no confusion as to whose letter was whose.

The ACLU’s contention that Dr. Levine was acting for the Committee rather than

the Department by changing the Committee’s recommendations and sending the January

16 Letter to the legislature is belied by the Letter itself and the later actions of the

Committee. The January 16 Letter, and the recommendations it proposed, belong to the

Department rather than the Committee. Consequently, the ACLU’s first OML claim,

which depends on the ACLU’s presumption that those acts were the Committee’s, is not

viable and is dismissed.

The ACLU’s second claim is that the January 12 email from Dr. Levine to the

Committee members itself qualifies as a meeting under the OML and should have been

conducted as such. The clarification above as to the intent and purpose of the January

16 Letter does not fully resolve this claim because the January 12 email, at least in part,

is clearly a communication to a quorum of the Committee by its chair acting as such.

Sending a substantive email concerning committee business to a quorum of the

committee is a potential violation of the OML. To the extent the motion to dismiss

addressed this issue, the Committee characterizes the email as yet one more

communication from Dr. Levine exclusively in his departmental capacity. It also

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suggests that it may fall within the “safe harbor” of the OML that permits sending such

emails for non-substantive communications concerning scheduling matters for discussion

by the public body. 1 V.S.A. § 310(5)(B).

The claim survives dismissal. While the email includes certain statements near

the bottom that appear to be related to “organizing an agenda,” it also distributes an

apparent draft of what would become the January 16 Letter. It is not clear, however,

that the letter was distributed for aid in any discussion at a meeting. Moreover, the rest

of the letter is explanation by Dr. Levine about how the content was formulated. It is

clear that Dr. Levine is acting or speaking as Chair of the Committee in the agenda

discussion, and potentially with the distribution of material. Otherwise, the letter is

ambiguous. The Court cannot resolve this matter under the dismissal standard.

The third claim is that the minutes of the Committee’s December 22 meeting are

inaccurate and were posted in an untimely manner.4 As to the minutes, the OML

provides as follows:

(b)(1) Minutes shall be taken of all meetings of public bodies. The minutes
shall cover all topics and motions that arise at the meeting and give a true
indication of the business of the meeting. Minutes shall include at least the
following minimal information:
(A) all members of the public body present;
(B) all other active participants in the meeting;
(C) all motions, proposals, and resolutions made, offered, and
considered, and what disposition is made of same; and

4 The Committee’s lack of written policies and procedures, and the apparent informality

with which it was run, at least during the underlying events, looms large over this case.
According to the parties’ stipulation after the March 20 hearing on Defendants’ motion,
the Committee “has never had a written rule or policy regarding taking, posting, or
formally adopting meeting minutes.” Nor does it have any “practice of formally adopting
minutes at subsequent meetings.” Nor did it formally adopt the meeting minutes of the
December 22, 2023, meeting at its subsequent March 25, 2024, meeting. Joint
Supplemental Memorandum 1–2 (filed Apr. 3, 2025).
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(D) the results of any votes, with a record of the individual vote of each
member if a roll call is taken.
(2) Minutes of all public meetings shall be matters of public record, shall be
kept by the clerk or secretary of the public body, and shall be available for
inspection by any person and for purchase of copies at cost upon request
after five calendar days from the date of any meeting. Meeting minutes
shall be posted no later than five calendar days from the date of the meeting
to a website, if one exists, that the public body maintains or has designated
as the official website of the body. Except for draft minutes that have been
substituted with updated minutes, posted minutes shall not be removed
from the website sooner than one year from the date of the meeting for
which the minutes were taken.

1 V.S.A. § 312(b).

As to inaccuracy, the ACLU alleges: “When the Department belatedly posted

minutes for its December 22 meeting, the minutes simply stated: ‘The entire meeting was

an open discussion about the funding proposals. Consensus on the recommendations the

committee rated highest priority was achieved.’” Complaint ¶ 84 (filed July 17, 2024).

The ACLU elaborates in opposition to dismissal:

[B]y their plain text, the minutes posted fail to ‘cover all topics . . . that arise
at the meeting’ or ‘give a true indication of the business of the meeting’ . . . .
The ‘minutes’ read, in their totality: ‘The entire meeting was an open
discussion about the funding proposals. Consensus on the recommendations
the committee rated highest priority was achieved.’ This vague description
fails to reflect ‘all topics’ discussed at the meeting; indeed, it does not
describe any topic with specificity. And although the minutes state that
‘consensus . . . was achieved,’ that passive statement tellingly omits any
discussion of what consensus the Committee reached. A Vermonter curious
about the December meeting and reading the minutes would have no idea
that the Committee had spent significant time emphasizing, for example,
the importance of harm reduction or OPCs—among the myriad other items
discussed during the two-hour-plus meeting.

The Committee’s entire argument in support of dismissal of the minutes claim is a

single sentence: “Finally, because the Commissioner’s letter was an act of the

Department, not the Committee, any deviation in the letter from the Committee’s

recommendation sheds no light on the accuracy of the minutes from the December 22nd
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meeting.” Motion to Dismiss at 8 (filed Sept. 16, 2024). The Committee does not return

to the matter in its reply memorandum.

To the extent that the ACLU’s inaccuracy claim depends in any way on its

characterization of the January 16 Letter, the Court agrees that it is not viable in that

sense. The claim is broader than that, however, and the Committee has simply not

addressed the balance of the claim. Certainly, any claim of inaccuracy must be grounded

in the specific requirements of 1 V.S.A. § 312(b). While minutes typically are intended

primarily to make a record of actions taken, the OML also includes the requirement to

“cover all topics . . . and give a true indication of the business of the meeting.” This

requirement must be understood reasonably. Minutes are not a transcript of the

meeting. Generally speaking, a brief summary of topics addressed at an open meeting

typically is sufficient.

The Court is admittedly hesitant to embark on an examination of whether minutes

of public committees contain enough or sufficient detail as to any particular topic. In this

case, though, it concludes that the ACLU’s claim can be read to extend to a more

substantive level. As such, the Court is unwilling to dismiss the claim at the threshold.

The claim is not dismissed.5

5 The OML also contains notice and cure provisions that require the aggrieved person to

give the public body notice of the particular alleged OML violation and to request a
“specific cure of such violation” before filing suit. 1 V.S.A. § 314(b)(1); see also 1 V.S.A. §
314(b)(2)–(4) (procedures for how the public may respond to such a notice). The ACLU’s
February 15, 2024 letter complaining of OML violations was not in any clear way
directed to the Committee, or Dr. Levine as chair of the Committee. Instead, it was
addressed to “Dr. Mark Levine, Commissioner of Health, Department of Health.” Nor is
it apparent whether any “specific cure” is mentioned in the letter. The letter variously
mixes references to the Department and the Committee, but chiefly complains about the
Department’s alleged “lack of transparency” rather than the Committee’s. Dr. Levine’s
February 26, 2024 response indicates that he was responding solely on behalf of the
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D. The PRA claims

On review of the Department’s initial denial of parts of the ACLU’s records

request, Dr. Levine asserted executive privilege on behalf of the Governor as to redacted

portions of certain emails and supported that assertion with an affidavit. See 1 V.S.A. §

317(c)(4) (PRA exemption for privileged records). All the disputed emails were sent

among executive branch officials, including Dr. Levine, after the Committee’s December

22 meeting and before Dr. Levine’s January 16 Letter. The Department argues that Dr.

Levine’s invocation of executive privilege sufficiently demonstrates that those records

were properly withheld for dismissal purposes. The ACLU counters that, in Vermont,

executive privilege extends exclusively to communications directly with the Governor,

and the Governor was neither a direct sender nor a recipient of any of the disputed

emails. It further argues that the privilege cannot extend, as it asserts the Department

is employing it, to the entire executive branch and all administrative deliberations

regarding agency or departmental initiatives. The ACLU also asserts that the privilege

should not apply here because the Governor had no direct role in the Committee’s

undertakings, which it presumes is the subject matter of the emails. Finally, the ACLU

requests an opportunity to demonstrate a need for production regardless of the privilege

if the Court concludes that the Department has made a prima facie showing of privilege.

In his affidavit, Dr. Levine describes the redacted emails as follows:

Department. On the other hand, he stated that he would forward the letter to the
Committee for its consideration. Whether the ACLU’s letter sent to the Commissioner is
sufficient to provide notice to the Committee and whether the letter meets the
requirements of § 314(b)(1) are questions that have not been addressed by the parties.
Accordingly, the Court takes no position as to those points at this time.

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1. Email from Mark Levine to Monica Hutt dated January 4, 2024. Subject:
High level OPC discussion.docx.

2. Email from Monica Hutt to Mark Levine and Jenney Samuelson dated
January 12, 2024. Subject: RE: Draft OSAC memo. This communication
has been redacted in three of the documents produced.

3. Six Emails dated January 3, 2024, between Mark Levine, Monica Hutt,
Jenney Samuelson, and Shayla Livingston. Subject: for substance use
briefing.

4. Six Emails dated December 28, 2023, between Mark Levine, Monica
Hutt, Shayla Livingston, and Brenden Atwood. Subject: Summary of opioid
recommendations.

He further asserts:

I have reviewed the redacted correspondence and can attest that the email
communications and attachments are subject to Executive Privilege because
they are confidential communications between myself and members of the
executive branch acting in an advisory capacity to the Governor for the
purpose of formulating policy and making decisions regarding opioid
prevention, intervention, treatment, recovery and harm reduction service
for which the Vermont Department of Health is responsible.

At the time, Monica Hutt was Vermont’s Chief Prevention Officer, a position

within the Office of the Secretary in the Agency of Administration. See 3 V.S.A. §

2321(a). Jenney Samuelson was Vermont’s Secretary of the Agency of Human Services, a

member of the Governor’s Cabinet. See 3 V.S.A. §§ 2101, 3001(6). Dr. Levine, Ms. Hutt,

and Ms. Samuelson are not low-ranking executive branch officials as the ACLU suggests.

The Vermont Supreme Court squarely recognized a qualified executive privilege,

in the context of a PRA claim, in Killington, Ltd. v. Lash, 153 Vt. 628 (1990). It

explained: “As objectionable as the image is of government conducted in secrecy’s

darkened chambers, it is hard to imagine a government functioning with no opportunity

for private exchange among its ministers, with no moments of speculation, venturesome

alternatives, or retractable words.” Id. at 636–37. The privilege “protects and insulates
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the sensitive decisional and consultative responsibilities of the Governor which can only

be discharged freely and effectively under a mantle of privacy and security.” Id. at 636.

“It is not protection of governmental officials, but rather protection of the effectiveness of

the overall governmental system that is at stake.” Id. at 637.

When a claim of privilege is properly asserted, the withheld records are presumed

privileged and the burden switches to the requestor to demonstrate its countervailing

need for the records. Id. at 639. “The requirement that a person seeking disclosure first

demonstrate need before obtaining the right to in camera inspection by the court is an

essential part of the privilege itself, not a corollary procedure annexed to the privilege.”

Id. at 640 (emphasis added). As to breadth, the Court has explained that no specific

decision of the Governor need be at issue in the communication. “A chief executive

properly receives advice on important issues facing the state, even though no immediate

decision may be required. The need for honest and open communication between the

chief executive and advisors remains.” New England Coalition for Energy Efficiency and

Environment v. Office of the Governor, 164 Vt. 337, 342 (1995).

The Court has described a prima facie claim of executive privilege as follows:

Although in Killington we did not address the elements of a prima
facie claim of executive privilege, other courts have described the “strict
procedural requirements” that such a claim must satisfy. The affidavit
supporting the claim must be based on “actual personal consideration” by
the responsible official. The executive must specifically identify the
documents for which the privilege is claimed, and must explain why the
documents are protected by the privilege.

The affidavit [in New England Coalition] is sufficient to make out a
prima facie claim of executive privilege. Volz [Director for Public Advocacy
for the Department of Public Service], as a high-ranking official who was
intimately involved with the preparation of the memoranda, is a proper
person to assert the claim. The affidavit is based on Volz’s personal
knowledge of the documents, and describes those documents with
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particularity. Moreover, the affidavit provides a proper basis for a claim of
privilege, stating that the documents are confidential and advisory, and
contain policy and legal advice.

Id. at 344–45 (citations omitted).

Dr. Levine’s self-certification of privilege in his affidavit is sufficient to trigger the

rebuttable presumption that the withheld materials are privileged. He was personally

involved in all such communications, he personally reviewed them for privilege purposes,

and he attests that they “are confidential communications between myself and members

of the executive branch acting in an advisory capacity to the Governor for the purpose of

formulating policy and making decisions regarding opioid prevention, intervention,

treatment, recovery and harm reduction service.”

The ACLU’s argument that the Supreme Court, as recognized in a decision by this

Court, has limited executive privilege to communications directly involving the Governor

is incorrect. It is true that most Supreme Court cases in Vermont that discuss executive

privilege have arisen, at least, mostly out of communications directly to or from the

Governor, and the Court has referred to protected communications as such. It is also

accurate that the Court once said, “Executive privilege, as explained in Killington, is

limited to communications with the Governor of Vermont.” Trombley v. Bellows Falls

Union High School Dist. No. 27, 160 Vt. 101, 107 n.5 (1993).

But the question whether the privilege may apply to communications that do not

directly involve the Governor has never been put to the Court squarely, and the Court

has never expressly ruled on it. The statement in Trombley was made only in service of

the Court’s holding that the privilege had no applicability “to a school board grievance

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decision and associated documents,” which bears no relation to gubernatorial functions.

Id.

Indeed, other cases from the High Court suggest a broader scope to the privilege.

In Herald Ass’n, Inc. v. Dean, 174 Vt. 350 (2002), the Court concluded that the privilege

properly applied, at least to some extent, to the Governor’s daily schedule. There is no

indication in that case that relevant entries in that schedule were communications

directly to or from Governor Dean. Further, the privilege in Killington, Ltd. v. Lash, 153

Vt. 628, 631 (1990), was applied, at least in part, to “communications directly to or from

the Governor’s office,” not necessarily the Governor personally.

The ACLU also cites this Court’s 2005 decision in Professional Nurse Service, Inc.

v. Smith, No. 732-12-04 Wncv, 2005 WL 6137459 (Vt. Super. Ct. July 14, 2005) (Katz, J.)

in support of its cramped view of the privilege. In that case, the State had invoked both

the deliberative process privilege and executive privilege. The Court dismissed executive

privilege as follows: “The [Killington v. Lash] Court made clear that, while the term

‘executive’ has been used broadly by some courts to refer to privileges extending beyond

the actual ‘chief executive,’ in Vermont, for purposes of the privilege, ‘executive’ means

‘governor.’ Because the disputed memoranda in this case are unrelated to the governor,

we agree with Plaintiff that the executive privilege, as recognized in Vermont, does not

apply.” Id. (citations omitted). It is by no means obvious that the Court intended that

holding to mean that the Governor had to be directly involved in the communication for

executive privilege to apply. The trial court’s clear holding was that the communications

at issue were “unrelated” to (had no connection with) the Governor. Instead, they

involved the agency’s own, separate deliberative process. The Court adopted the

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deliberative process privilege and ruled that the records were properly withheld under

that privilege.6 In any event, Professional Nurse Service is a trial court decision that is

not binding here.

More importantly, in 2014, this Court employed the reasoning of In re Sealed Case,

121 F.3d 729 (D.C. Cir. 1997) to explain that the privilege can properly extend to

communications not directly to or from the Governor. Browning v. State, No. 272-5-14

Wncv, 2014 WL 10321350 (Dec. 10, 2014) (Teachout, J.). The Court adopts the relevant

reasoning of Browning and In re Sealed Case for purposes of this case.

In In re Sealed Case, the D.C. Circuit Court carefully distinguished the

deliberative process privilege from executive privilege (referred to there as the

presidential communications privilege), explained in depth why the deliberative process

privilege is insufficiently protective in these circumstances, and concluded that

“restricting the presidential communications privilege to communications that directly

involve the President will ‘impede the President’s ability to perform his constitutional

duty.’” Id. at 751 (citation omitted). It held:

We believe therefore that the public interest is best served by holding that
communications made by presidential advisers in the course of preparing
advice for the President come under the presidential communications
privilege, even when these communications are not made directly to the
President. Given the need to provide sufficient elbow room for advisers to
obtain information from all knowledgeable sources, the privilege must apply
both to communications which these advisers solicited and received from
others as well as those they authored themselves. The privilege must also
extend to communications authored or received in response to a solicitation
by members of a presidential adviser’s staff, since in many instances

6 The legislature later eliminated the deliberative process privilege from the reach of 1

V.S.A. § 317(c)(4) the following year. See 2005, No. 132 (Adj. Sess.), § 1.
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rely on their staff to investigate an issue and formulate the advice to be
given to the President.

Id. at 751–52.

The idea that the purposes of the privilege could be reasonably served by limiting

it to communications directly to or from the Governor is quaint but completely ignores

the realities of the modern chief executive and the decision making at stake. The days

when Governors, even those in Vermont, were able to function by themselves or with one

or two aides, have long since passed.

The Court concludes that the communications at issue here are sufficiently

connected to the Governor to provide a basis for the assertion of the privilege. According

to Dr. Levine’s affidavit, the relevant communications involved high ranking officials

acting in an advisory capacity to the Governor on policy matters. That is sufficient.

The ACLU’s argument that this assertion of privilege somehow is being applied to

mere agency decision making not involving the Governor is belied by Dr. Levine’s

affidavit. Similarly, its contention that it is being applied to matters involving only the

Committee, for which the Governor has no role, simply ignores the Department’s

independent role in making recommendations to the legislature, policy matters that are

not somehow separate from the Governor’s legitimate interests and decision making. See

New England Coal. for Energy Efficiency & Env't v. Off. of Governor, 164 Vt. 337, 341

(1995) (noting the privilege can apply to a broad “range of consultative and decisional

responsibilities” of the Governor).

To the extent that the ACLU argues that the legislature’s elimination of the

deliberative process privilege from 1 V.S.A. § 317(c)(4) implies that the executive

privilege should be construed more narrowly than it otherwise might, the Court
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disagrees. The privileges have different purposes. The legislature has not attempted to

limit the reach of executive privilege, and executive privilege has an independent history

and constitutional foundation firmly rooted in the separation of powers. See Killington,

Ltd. v. Lash, 153 Vt. 628, 636 (1990) (“Federal and state courts have accorded to the chief

executive of the nation or of a state a privilege which is ‘fundamental to the operation of

Government and inextricably rooted in the separation of powers.’” (quoting United States

v. Nixon, 418 U.S. 683, 708 (1974)).

The Department has successfully made a prima facie showing of executive

privilege. The burden then switches to the ACLU to demonstrate that disclosure

nevertheless should be ordered, or at least in camera review preliminary to disclosure

should be ordered. The allegations of the complaint are not calculated to analyze that

burden, nor need it have done so. The matter cannot reasonably be addressed under

Rule 12(b)(6).

Conclusion

For the foregoing reasons, Defendants’ motion to dismiss is granted, in part, and

denied, in part, as follows:

(a) The OML claim predicated on alleged improper Committee decision making

undertaken unilaterally by Commissioner Levine after the Committee’s December 22

meeting is dismissed. The other OML claims remain in the case vis-à-vis the Committee.

As to the other defendants, those claims are dismissed.

(b) The Department has made a prima facie showing of executive privilege for

purposes of the ACLU’s PRA claim. Going forward, the ACLU will have the burden of

rebutting the presumption of privilege.

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(c) Counsel shall confer and suggest a proposed schedule/approach to resolving

the remaining issues. in the case within 21 days.

Electronically signed on May 5, 2025, per V.R.E.F. 9(d).

_______________________
Timothy B. Tomasi
Superior Court Judge

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