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Furlough argument in high court
Vermont Supreme Court to hear former city attorney furlough argument

A former city attorney who spent time in jail for a fatal hit-and-run drunk driving crash is scheduled to argue before the Vermont Supreme Court on Thursday that he shouldn’t have been denied participation in a furlough program.

Christopher Sullivan v. Lisa Menard, commissioner of the Department of Corrections, is slated to be argued before the Vermont Supreme Court on Thursday at 1:30 p.m., according to the court’s online calendar.

On April 10, 2013, Sullivan hit 71-year-old Mary Jane Outslay, of Mendon, as she was crossing Strongs Avenue. Sullivan didn’t stop after hitting her, turning himself in to police the following day. In 2015, a jury convicted him of for driving under the influence of alcohol, and leaving the scene of a crash. He was sentenced to serve between four and 10 years.

According to court records filed in June by Assistant Attorney General Andrew Gilbertson, the commissioner of the Department of Corrections is in charge of administering the reintegration furlough program.

“Reintegration furlough is a program created by statute to prepare offenders for reentry into the community by permitting the Department to supervise them in the community prior to the inmate reaching their minimum sentence,” Gilbertson wrote in a brief. The program has two aspects, it gives the ability to place the offender in the community 180 days prior to their minimum release date, called a “reintegration furlough window.”

“The second version permits the Commissioner to award an additional five days per month toward an offender’s ‘reintegration furlough window’ to offenders who comply with their case plan and follow facility rules,” wrote Gilbertson, adding that participation in this program is, by law, at the commissioner’s discretion.

In the brief, dated June 12, Gilbertson writes that Sullivan is currently serving a four- to 10-year sentence. According to the Department of Corrections’ “offender locator,” Sullivan’s minimum release date was Aug. 5 of this year.

According to Gilbertson’s brief, in February 2018, Department of Corrections staff held a meeting to discuss whether Sullivan was eligible for the reintegration furlough program. They determined he wasn’t. He appealed the decision to the commissioner, who sided with the staff on the grounds that Sullivan’s crime was a violent one and that he didn’t meet the criteria for the five-day award. Still, the commissioner ordered staff to review the case again. They did, and reached the same conclusion. Sullivan appealed again to the commissioner with the same result as before, prompting Sullivan to appeal to the superior court.

According to the brief, Sullivan argued “that the Department had erred in considering convictions outside those listed in the statute in its determination of an offender’s appropriateness for reintegration furlough, that considering Mr. Sullivan’s convictions as indicative of a history of violence was in error, and that declining to place Mr. Sullivan on reintegration furlough violated the doctrine of the separation of powers.”

The department argued against this, with the superior court taking its side. Sullivan appealed that decision to the Vermont Supreme Court.

Gilbertson argues that the department’s decision isn’t reviewable under the rules, and that it’s up to the commissioner’s discretion whether someone is enrolled in the furlough program.

In June 25, attorney Annie Manhardt, of the Office of the Defender General, representing Sullivan, arguing that the department’s decision in this case is reviewable. She wrote that the department’s argument “... ignores the premise that every administrative agency has an affirmative duty to ‘operate for the purposes and within the bounds authorized by its enabling legislation.’”

When an agency is given the authority to create rules by the Legislature, the agency’s rules have to comply with that legislation’s intent, Manhardt wrote, adding that there’s a list of 13 crimes that disqualify a person from the reintegrating furlough program, and that the department’s decision with regards to Sullivan unlawfully adds to this list.

Manhardt writes that the commissioner abused her discretion and that case law says leaving the scene of a crash with a death resulting isn’t counted as a crime of violence. She argued the rules the department is using violate the separation of powers.

“The rule violates the separation of powers by disqualifying people convicted of thirty-one crimes from receiving earned time, when the governing statute contains and exhaustive list of only thirteen disqualifying crimes,” wrote Manhardt.

keith.whitcomb

@rutlandherald.com


Photo by Jon Olender  

Parachute games

Rutland Regional Medical Center CEO Claudio Fort plays the parachute game with first- and second-graders from Northeast School on Friday morning at RRMC as part of the Come Alive Outside program. For more photos, see this week’s People and Places on page B8.


News
Clarendon bans recreational marijuana sales

CLARENDON — After months of discussion, the Select Board has passed an ordinance banning recreational marijuana sales in town.

The Select Board voted unanimously on Sept. 9 to approve the ordinance. It will take effect within 60 days of its passing, while citizens who want the town to vote on it have 44 days from then to circulate a petition. The petition would need to have 5% of the town’s registered voters signing it to be valid.

“The sale and/or dispensing of recreational marijuana and/or recreational marijuana products, including but not limited to solvents, edibles and seedlings, within the established limits of the Town of Clarendon are hereby prohibited, with the exception of marijuana specifically dispensed for medical purposes by a licensed marijuana dispensary as defined by Title 18 of the Vermont Statutes,” reads part of the ordinance.

The ordinance has been posted to the town’s website and can be found at https://bit.ly/2mhPJ7e.

Select Board Chairman Mike Klopchin said Friday there wasn’t much discussion at the Sept. 9 about the ordinance; most of the talks having taken place over the past several months. He said the board began discussing the ban last year after citizens expressed concerns, given the Legislature at the time was considering laws that would allow recreational marijuana sales.

The Legislature didn’t pass any such laws last session, but it’s widely expected that the issue will come up again in the next session, which starts in January.

Klopchin said he doesn’t see Clarendon becoming a popular place for recreational marijuana shops, nor is there much concern that stores will pop up in surrounding towns. He said he recalls people’s marijuana use during the 1960s and doesn’t wish to see the problems he saw associated with it crop up again.

While there was strong support for the ordinance among board members and townspeople, it took some time to reach this point. Early in the process, the town tapped town resident Art Peterson to research similar ordinances in other towns, notably the city of Newport. Using Newport’s ordinance as a model, the board in fact approved a draft ordinance in July, but never legally posted it, deciding the language wasn’t specific enough. Then, in August, townspeople in favor of the ordinance asked the board to hold off from voting on it again, and to post the draft in a public place so that residents could review it first. The board complied, though, it received little, if any push-back.

Klopchin, a former legislator himself, said it’s possible the ordinance will need to be revisited depending on the language of whatever legalization bill comes out of the Legislature, assuming that happens.

keith.whitcomb

@rutlandherald.com


News
Attorney: Former DPW director was entitled to back-mileage

BRANDON — The attorney for the town’s former director of public works, who resigned in August amid questions about a $22,000 payment made to him that the town claims was improper, says it was for back-mileage and that he’s entitled to it.

Attorney Peter Langrock, of Langrock Sperry & Wool, LLP, a firm with offices in Burlington and Middlebury, said Monday that he represents Daryl Burlett, former Brandon director of public works and Segment Six municipal project manager.

“Of course Mr. Burlett did not do anything criminal,” said Langrock. “He submitted an invoice, it was approved, and paid.”

He said the mileage was incurred over a “long period of time,” though he didn’t have the exact dates available. He said the miles themselves aren’t being disputed, but whether or not Burlett was entitled to reimbursement for them, which he maintains that Burlett is.

Burlett resigned on Aug. 22. On Aug. 26, the Select Board was questioned about the matter at its regular meeting by members of the public, prompting it to release a statement the following day saying that Burlett had resigned and that it’s trying to resolve an issue with a payment to Burlett for $22,011.

Burlett served as public works director for four years and had been the Segment Six municipal project manager, a role Town Manager David Atherton will serve until the project’s completion. It began in earnest last year, and is expected to have its finishing touches done in the spring of 2020. Segment Six is a $20 million overhaul of Route 7 and connected infrastructure through Brandon’s downtown. It’s 80% federally funded.

The town’s attorney in this matter is Constance Tryon Pell, of the Middlebury firm Carroll, Boe & Pell, P.C. Langrock said he spoke with her Monday and has asked that she outline the town’s position. He’ll then talk it over with his client and proceed from there.

Pell did not return a voicemail left for her on Monday. At the Sept. 9 Select Board meeting, the board was once again questioned about the payment, prompting town officials to say that changes have been made to the way the town processes checks.

“Steps have been taken to ensure this will not happen again,” said Select Board Chairman Seth Hopkins. “The process, as it was, has been revised.”

He elaborated in an interview on Monday saying that no longer will town employees be able to approve their own expenses. He said the town will also make better use of the seven-day window it has to approve payments connected with the Segment Six project.

“I think we now have a pretty clear understanding of what happened, and I would like to leave it at that,” Hopkins said.

He declined to elaborate on what his understanding of the situation is, exactly, saying he fears jeopardizing the town’s legal position and possibly interfering with a swift resolution to the issue.

He said at the Sept. 9 meeting that he expects taxpayers will not end up losing anything.

“I am 100% confident that the town has done nothing inappropriate and this conflict will be resolved in a manner that the taxpayers will be held harmless,” he said. “There will be no loss.”

Charles Powell, a member of the audience at the Sept. 9 meeting, had several questions for the board about the procedures the town uses for making payments.

Hopkins, at the meeting, explained that, normally, a contractor will generate an invoice and send it to the town for processing. In this case, since there was no contractor generating an invoice, the contractor for Segment Six wouldn’t necessarily have seen it, nor would the inspecting engineers.

“Then, the municipal project manager has to look at and examine, and approve or disapprove the bills that have come from the contractor and the inspecting engineers. That’s Mr. Burlett. He signed that, he authorized it. At that point it goes to the bookkeeper for the checks to be prepared,” said Hopkins.

The paperwork then goes to the town treasurer, said Hopkins. Normally, the checks the treasurer is looking at have been approved by department heads. Ultimately, the payments find their way onto a list that goes before the Select Board, referred to as the “warrants.” Once the board signs the warrants, the money can go out.

“That’s when the Select Board becomes responsible, when we authorize the town treasurer to disperse taxpayers’ money,” said Hopkins. “We declined to do that in this instance, as the minutes reflect.”

The Select Board first became aware of this issue when it was presented with the warrants for July.

The town’s normal process can take up to three weeks, given how often the board meets, said Hopkins.

“With the Route 7, because of this federal prompt pay, there are occasions when the board meets after checks have been dispersed, and that was a procedure that we entered into after being advised by the (Vermont) League of Cities and Towns that that’s an appropriate way to meet the prompt pay requirement.”

“Prompt pay” refers to the Prompt Pay Act, the federal law governing how quickly payments need to be made on federally funded projects.

keith.whitcomb

@rutlandherald.com


Local
Weatherhoggs step down from Grace pulpit

John and Tracy Weatherhogg said they arrived in Vermont knowing that they would usher Grace Congregational Church through changes.

“People have much less faith in the institutions of life,” John Weatherhogg, who for 15 years has been pastor of Grace, with his wife Tracy as his assistant pastor, said Friday. “The role of the church in the community is still vital and important. The church is about community and forming a family that everybody had and felt when they were in high school but left upon graduation. It’s kind of like the ‘Cheers’ television show — you go where everyone knows your name. That’s home.”

At a time when churches have been home to fewer and fewer Vermonters, the Weatherhoggs said Grace Congregational has increased its attendance to the point where they feel their job is done. They oversaw their final service on Sept. 8.

“I think we’ve brought them to this point which fulfills my sense of calling,” John Weatherhogg said. “I think we’re here and the church is ready to take the steps it needs to further that mission.”

Tracy Weatherhogg said she had alternated between being excited about the challenges of keeping the church a vital part of the community and frustration with feeling that the institution might be a sinking ship.

“In these changing times, we’re all struggling with what it means to be a church,” she said. “I don’t know if my leadership skills helped ask the right questions. ... I think for me personally, being involved in lots of different aspects of the community personally and trying to in different ways has been good.”

The Weatherhoggs said they had to be a little coy about what they plan to do next.

“I have a couple of irons in the fire right now that I’m kind of massaging, see how they come out,” John Weatherhogg said. “It would be engaging in the business world. A lot of it is developing — I can’t go into detail.”

The duo were at a church in Doylestown, Penn., the last time they felt it was time to move on, and a congregant there with cousins in the Rutland area pointed them to Grace.

“When I came, it was clear my call was to be the fulcrum on which this congregation went from the previous way of doing ministry to the new, emerging way,” he said.

Part of the new way, Weatherhogg said, was for the church to engage with community groups on relevant issues.

“The food movement was important to us,” he said. “The racial justice movement was important to us. The refugee resettlement issue was important to us. Getting the church engaged in those movements was important to us and vital to our survival.”

They also said they made sure the church was involved in Rutland’s interfaith clergy group, the Vermont Farmers Food Center and the Open Door Mission.

“People who don’t have a congregation in the community and need help come to Grace to look for that,” Tracy Weatherhogg said. “We find connections or help them find the place they need to be.”

Greg Ellis, chairman of the church council, said the Weatherhoggs did “an excellent job fostering a spirit of love and kindness” at the church and that their departure relieved certain financial pressures that would play a role in shaping the ministries that would follow them.

“All churches, and we’re not immune to this, need to be sensitive to the needs of living within their means,” Ellis said. “For our means, we have to be looking to the future as a one-minister church.”

Ellis said interim ministers, who they expected to select with help of the United Congregation Church Conference, would help them determine what that would look like as they searched for their next minister.

“Typically, it takes a year, a year and a half with an interim before you’re able to settle on a permanent, settled minister,” he said. “We might get lucky and find someone off the bat, but that’s not usual.”

Whoever it is, Weatherhogg said, will have to find a way to continue to navigate Grace through the 21st century.

“How do we imagine ourselves to be the faith community, the vibrant faith community, we need to be now?” John Weatherhogg asked. “That’s the question every pastor asks in their studies today.”

gordon.dritschilo

@rutlandherald.com


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Tuesdays

Open Mic

Every Tuesday at the Hide-A-Way, Krishna Guthrie hosts open mic. Bring your instruments, voices and talents. 9:30 p.m.-1:30 a.m. Hide-A-Way Tavern, 42 Center St., Rutland, booking@hideawaytavernvt.com.