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October 16, 2017

Governor Scott Should Follow his Soul, Not the Advice of the Attorney General

Last month Governor Phil Scott said that the idea that the state is immune from all litigation “doesn’t give me a good feeling in my soul” and that it undermines trust in government. He said that he would consider appointing a special prosecutor to make sure we understand how Vermont happens to be the locus of the biggest EB-5 scandal in the nation. Last week he said he doesn’t believe now would be the right time for such an action because of the state’s pending lawsuit against the developers. Lawsuits take a long time. “Not now” could well be after unsolved problems which led to the EB-5 scandal further damage the state.

Scott says he is relying on the expertise of Attorney General T.J. Donovan, who’s doing “what he thinks is his best to represent the state of Vermont.” The Attorney General’s office is defending the state against a lawsuit alleging state complicity in the EB-5 fraud and, like any good lawyer would, is trying to have the case dismissed. However, the Attorney General, whose client is the GOVERNMENT of the state of Vermont, not the people of Vermont, is giving very bad advice from a public policy point of view.

Donovan argues that, if the state waived its sovereign immunity, state government would collapse. Without sovereign immunity “you wouldn’t have anybody working in government or anybody willing to make a decision in government exercising their discretion for fear of being sued,” he said. That argument is insulting as well as wrong.

Local governments don’t have sovereign immunity; people still work for them. Those of us in the private sector don’t have sovereign immunity; we make decisions (and get sued) all the time; we still do our jobs. Doctors don’t have sovereign immunity; they make life and death decisions – and put up with being sued. Teachers have no sovereign immunity. State workers won’t resign en masse if the state waives its sovereign immunity in a case which has blemished our reputation and which is, just as Scott feared, undermining trust in government.

Moreover, Donovan’s statements make clear that, since his office does have a responsibility to defend the state government and the state workers named in a lawsuit, the AG’s office has a conflict in fully investigating what went wrong. “The AG”s office is alleging fraud against Quiros and Stenger, that’s where we should focus,” He said. Certainly the AG’s office should be pursuing the case against Stenger and Quiros – one might even ask what took them so long – but what if government officials were criminally involved with these two (something which certainly has NOT been proven), would the AG’s office have to back off from the prosecution because any such allegation would damage the interests of its client, the government of the state of Vermont?

If the AG’s office can’t investigate possible state malfeasance, then there is the need for an investigation separate from the AG’s office. Moreover, even if the actions of state employees were entirely legal (as they may have been), shouldn’t the Governor, whose watch this did NOT occur on, want to know exactly what went wrong? Shouldn’t he want to know what went wrong now in case there are similar scandals brewing? Scott’s soul was right; public trust in government is extremely low. Now is the time for him to take advice from his soul and not from the AG.

All direct quotes in this piece come from a VT Digger article.

See also:

Vermont Should be Investigating Itself

Governor Scott Considering EB-5 Special Prosecutor

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