 We have Mr. Hughes with us, and anyone else in the room who might wish to talk with us about S281 this morning. So Mark, if you would like to join us, we're glad to hear that you're joining us this morning. And as a committee, we'll be talking about this little Zach and me, committee discussion. Without witnesses getting testimonies, we'll say, but a witness is watching and we'll, you know, obviously always, we'll welcome you to this. But S281, as well as the role that we've been taking, testimony on starting a temporary committee, we've got time for ourselves to try and sort through things, Zach and me. And for the record, I'm Mark Hughes, Executive Director of Justice for all. Well, again, good to see you again. Madam Chair, thank you so much for having me back. Committee, thank you all for not just entertaining me last time and not going to sleep, but having me back this time as well. I brought you a gift and I was going to bring you one scoop from Jerry's yesterday, but it all melted. So I have some other things for you so if you could just pass these around. These are just a little bit of research in the form of education on systemic racism that we put together, some of our research folks put together. Before we have me to bring that last time. And you don't get to read a lot of talking. So I wanted to come back and just offer up a couple of final thoughts because there's a few things that I think that I left out. And also, I believe that I pretty much loaded you down with a lot of information with at least one email that I think included in that email. There was some attachments. I believe one of those attachments was the... It had to go black if I don't touch it once in a while. Oh, I thought you were trying to keep me in on something. No, I wouldn't appreciate it. So one of those attachments was actually the amended version that the Coalition put forward of S-2-81. I think within that, and you have to help me out here, but I think also within there, I think there was some... In the body of the message there was some language surrounding some challenges that we were having with S-868 as it was released from legislative console. Why don't you just talk us through everything because our brains get mushy in regard to all the different bills. Absolutely, absolutely. That would be the most, frankly, the most respectful approach the information might make sure is clear to us. Sure, absolutely. So how about what I do is I will start with that email, with the content of that email, and I will just be crystal clear on what that looks like. And folks, it's on our webpage. Under which date, Denise, do you recall? Yes, it's under today's, I will get it over. Did you go out? Yeah, no, I refreshed it. Our devices have been sitting for a few minutes. They go to sleep. So what I'll do is I just want to start with the content of that email, and I asked you when I was here last time if you would please consider looking at S-868, which is still there, and in comparison in terms of the content that was in me, what you received with S-861, because we noticed some issues there. So let's just talk about S-828, just for a couple of minutes, because what I don't want to create is confusion by you going back to S-828 and looking at it and thinking that what was produced from Legislative Council, although it leaps and bounds ahead of what S-281 was when it first came out of Legislative Council. And it almost contains everything that we were looking for, with the exception of the expansion of the Human Rights Council, Human Rights Commission. There are about 88 things that I wanted to bring to your attention that we had some challenges with in S-868. So hold that thought. Jim has a question about the background. Just a quick question about the background. S-281, as it was introduced, was it a companion bill to H-868? Like, was it just the same, basically the same version initially? That is how it was intended to be introduced, but it was not. So they were two different versions? They were two separate versions, because what we introduced with H-868, because the deadlines in Legislative Council are a little bit beyond that in the Senate, we were able to get more of the language in the bill that we wanted. Plus in the House, you guys being one head of a lot smarter than the Senate, I just had to throw that out there. I got to somehow or another figure out how to get at it. So here's what we're looking at in those eight points. Number one, the Equity Commission should serve as an independent agency, not under the HRC. So you will see in H-68 that it was actually came out of Legislative Council under the HRC. We never intended that to be the case. And I think we had a brief discussion on that last time I was here. The second point was in Title IX, 45-52, what we were looking to introduce was a request for a separation of roles for litigators and investigators in the HRC. So we can come back to that if necessary. And also the third point was in Title IX, If we could ask, if it's okay with you, if we have questions as you go point by point, it might be most efficient if we ask our questions point by point. Noted. And I appreciate that being pointed out. Because I have a tendency of taking off sometimes. So thank you for really making sure we keep up with you. And I also want to make sure that this is productive as well. So are we okay so far? Hang on. So committee, any questions for Mark with regard to point number one regarding equity commission and it's being independent? Okay, so on point number one, the Senate version, is it not funded? It is. So you're just saying keep that portion of the Senate bill and it is independent, right? It is. I want to make sure this isn't asking for something that's not in the Senate bill and one doesn't appear to be. Sure. And just for clarity, the only thing I'm walking through with you right now is 868 as it stands alone. Okay. I'm not even considering 281. Just in the event that you should go and take a look at it, these are just a few things that I'd like you to keep in mind. Okay. If you choose to compare the Senate version of the bill 281 to it just to be able to, you know, if possible or necessary, get some language from it that might be useful. Is that into your question? And then I've got a question with regard to point one also. Sure. Question. I had in my notes from that first day we took time to test them on that Wednesday morning last week. Wednesday morning last week. It was. I had a notation that everyone was in agreement that the word civil rights should be taken out of the title of the chief officer and of the panel. And almost anything would do other than those words. But it was recommended that somehow mitigation and racism, either both terms or at least one or the other be included in the title. So the officer and the panel. So here I'm looking at equity commission. That's this. Selected from January 15th. Okay. But you're not suggesting that equity commission is is a prop. It is a good alternative name. It just happens to be. It could be. We put this forward. We ran into a few questions about the terminology commission and what does commission mean constitutionally. What what what is the governor's authority with with commissions and it should this be a commission. And because there are many commissions. So I think. That we kind of just step back from and let you know let that kind of flesh itself out in terms of what the what you're. What the Senate got us came up with and again as I read last week. Senator White was fully expecting this this body to change the name. And well well it's sort of one and two. I'm a little confused here on one year you're asking that the commission be an independent agency. But then you go on to question two and you're saying that there needs to be a separation role of the litigators and investigators in the Human Rights Commission. That's a good question. Let's just let me just make it very clear that the it was always from day one the intent of this legislation to object to address systemic racism as well as explicit racism. So the main portion of this bill deals with that body that was the panel that that would appoint an officer that would have a responsibility for systemic systemic racism. There's a couple there's a few other things that we try we're trying to get done we're hoping to get done in this bill and they are communicated through clearly in H eight sixty eight. Number one is to address racial profiling with traffic stops and so forth which clearly has nothing to do with systemic racism. The second one has to do with introducing a more concise and unified approach to use of force or should we say appropriate use of force across all seventy nine agencies to include data collection policy and trained. And then the third one was the expansion of the HRC. OK so what you've touched upon is is the third point and that is as we went in and took a look at what the HRC looks like the first thing we determined was is that and I think everyone around the table probably already knows this is that they're underfunded. That they just and they don't and they're understaffed and we wanted to bring that out as a as a very important point because you know as we work through this and address the systemic racism. The same thing we found out with law enforcement is is number one there's a crossover and there's a place in time where you know you stop looking at systemic racism. You start looking at explicit bias you know as the proliferation of and the rollback I should say of civil liberties at the national level have occurred and we thought it to be important for us to be looking at that even more closely at this state. Does that answer your question. I guess. For later. Thank you. So I have a follow up to your question. Well you can't ask it right now. Anyway. So this point number two. Am I. Inferring correctly or incorrectly that this is a suggestion. That you're advocating regardless of whether or not the panel. The mitigation panel for whatever whatever we end up calling it. Whether or not it's housed with HRC that you're asking that this clarification you made HRC separate from whether separate from the question is where the panel's house. Correct. So no matter where the panel's housed and for those in the room who can't see this this is what it's saying is this is separate. There should be a separation of roles within the Human Rights Commission where the investigators and the litigators are not the same people. That was the answer I was looking for. Okay. I'm sorry about that. You're welcome. So no matter where the panel is housed this is a proposal in regard to how HRC is settled. Right. And just in my personal opinion I believe the reason why it doesn't exist today and you'd have to have to call Karen. Richard said for for professional opinion but I think the reason why it doesn't exist today is because there's there's a shortage of staffing. They don't have people to do this. Karen do you want to I see an invitation as it has been during student. Do you want to comment on this point right now or I can if it would be helpful. Sure. Okay. Karen Richards executive director of the Vermont Human Rights Commission. There is actually presently and currently a separation in those two roles within the Human Rights Commission. So the investigators do not litigate their attorneys but they do not do the litigation. Litigation is my responsibility. So what happens is if there's a finding of reasonable grounds and a decision that we should go to court then it is me. That litigates it. I think where Mr. Hughes may be confused as we had some earlier conversations about the fact that given my the breadth and depth of my responsibilities which I've explained to all of you previously that it is very difficult in this position to do litigation at the same time that you're over here and you're doing all the other responsibilities of the job. So having a separate litigator position would be ideal. But it's not because there's not a separation between those two roles presently. Thanks for that. Does that help? I think so. Thank you Karen. The third point is on Title 94554 one of the things that we were looking at in with that particular title and there's conversations that again we've had with Karen on this and maybe we didn't get this one quite so long is that the in our in reviewing is there's there's a clause there that says that there's efforts efforts to resolve the matter by formal means prior to determination of whether there's reasonable grounds to believe that unlawful discrimination has occurred. And as an advocate and working in the community I'm pretty familiar with a lot of folks who finally find some relief. They can't get it through legal aid. They can't get it through pro bundle. They don't have money. The folks over at the ACL you are not going to take the case up. They spend for a while and it's it's hugely traumatic to have to be deprived of one civil liberties not know where you're going to live where you're going to work and finally make it to the HRC. And then although I know procedurally this typically doesn't happen at the HRC but statutorily it seems to be mandated that these things that these cases could simply be they could be just moved off to the side before determination has been made. Typically I would think that would be at the discretion of the of the of the of the one who's bringing the charges up. And I believe that the current staff over there pretty much does that. But it but this the the statute says but you know if we were to go by the letter we lost it for example we got another executive director. The statute says that this is what needs to happen. I think that language is is is inappropriate. What needs to happen according to existing statute is that there should be efforts to resolve the matter informally. Correct. What's current statute says there should be an effort to resolve it formally before such time as reasonable grounds as they have even been determined. That's the challenge that we're having with that. So you want to strike that way. I do. I should not. I guess I'm a little confused here. So you're looking to address this issue formally before reasonable grounds are found. No we're looking to have reasonable grounds found have a determination made prior to such time as a as it can be resolved. Well I think I misstated that. We're looking to not have statutorily mandated a resolution before a formal determination. You said one more time. We're looking to not have statutorily mandated a resolution before formal determination not statutorily. I think it should be an option but you shouldn't statutorily say you know you must resolve this before such time as it's determined. I guess I'm confused in the sequence of events here. How do you resolve something if you don't know that there's even an issue. That's my point exactly. And your solution would be what Mark? What this statute says is that you would resolve something before you even know it's an issue. That's what the statute says. You asked a very good question. How can you resolve something if you don't even know that there's an issue. So if you read that language once again that language says that you must resolve something before you know that there's an issue. That's why we want this language stricken. I was drawing. Other committee member questions on that. If I put Karen from the perspective of the Human Rights Commission is there any comment you would want to make with regard to point number three. Sure. Again Karen Richards executive director. You never know what's going to be thrown in your direction. That's all right. That's why I'm here. So what the statute says is that attempts should be made to to reach an informal resolution prior to making a determination. That language is based what it basically empowers us to do is work on conciliation as we're continuing to investigate. That's the process and that has always been the process that the Human Rights Commission from I'm the fourth executive director. That's always the way it works. So that's our understanding of the statute which is basically that somebody files a complaint. You start gathering facts about both sides and then you start asking the parties is there some way you want to resolve this matter prior to us completing in a full investigation and writing a report. So there's no way we would we either resolve it or we write a report and then we try to resolve it again but we would never resolve it and then write a report. That makes no sense. So that's not an accurate interpretation. So you're supportive of striking the language. No I'm not partly because our HUD contract requires us to begin trying to conciliate matters from the time that we that their file and it could potentially put our funding in jeopardy if that language were stricken from our statute. It's very important that we have that tool and it's in part to protect parties because a lot of times the parties may have more immediate needs for resolving the matter than they have time to wait. For us to complete a full investigation of the matter. And other times it may be that the complainant filing the complaint is has a weaker case than they may have thought once the evidence starts coming out and they may be better off with the resolution than a no reasonable grounds finding at which point they have nothing. And so that's how we use conciliation is to assist people in reaching a conclusion that is in their best interest and we don't resolve things that the complainant resolved it. The complainant and respondent agree to a settlement. The Human Rights Commission just helps to facilitate that. Which is the way you hope that the whole system works. It makes sense. It's how we run our households. Anyway. Sometimes. We can. Let's get a little more first. Yeah. Who did you say? HUD. The Department of Housing and Urban Development. They provide about a quarter of our funding. Then they pay us to investigate the housing cases. So. And they require that our. State language in our statute be substantially equivalent to what is provided under federal law. So that's why we have that. Right. So if if we were to change our statute in that way it would affect potentially their designation of us as a substantially equivalent agency. Which would mean that they could hold their funding which is in the $85,000 range and is a chunk of my budget. So that would mean laying off an investigator basically. Thank you. Thank you. You went on Karen and answered a question that was in my head with regard to so how much money we talked about. Do we have the information we need on point three? I'll just conclude on point three is this discussion, this difference in opinion that Karen and I share is this is not a new development. We've had this conversation before. And the legislature again the statute is quoted here. And what it says is efforts to resolve the matter by formal means prior to determination of whether there's a reasonable ground to believe that unlawful discrimination has occurred. That is what the statute says, which means by law that is what the HRC is required to do. Which means the litigant the person who's found the complaint does not by law have a right to be involved in that decision because the law says that it must be done. Okay. And those are who are in my category my protected category have little patience or time to say that the justification for this laws because the HRC needs an additional $85,000. Okay. Because once again it sounds like the federal government is buying out our civil liberties very much like they're buying it out on the police side when it comes to sanctuary cities and the $500,000 that our state police held out for. Okay. So this happens quite frequently and it's the foundation of much of the systemic racism that I came here to talk to you about. So that's my conclusion point three. Okay. We're gathering the information. So to point four, section four three B should state each government agency and education organization. The original language of this bill when it was put forward was always intended to include education. Okay. That's in 868. And in point five in 868. I'm sorry. Any questions with regards to the job? What do you mean by education organization? Education agencies that exist within the state government. So it would be colleges and the agency themselves. The agency of education. Yeah. And the state colleges. Right. Okay. Thank you. Is the colleges not UVM or any of the projects? We went round and around about this. And the only thing we could come up with is that we could not affect change in institutions that were not under the state agency. Not including UVM. UVM is not a state school. It's not technically. But are receiving state money. So it might be a way to get at that. It's a state school. It's part of the state system. Okay. So UVM would be cool. So we can clarify that. I'm seeing scowls. Any way. Easily enough checked. Yeah. I had thought of it in terms of the state because of the state money, the instrumentality of the state concept and all of that. But moving on. We'll figure this out. Okay. And 0.5 is an additional. Ms. Lee Richards is going to think we're picking on her for after a while here. And an additional litigator and an outreach coordinator should be added to the HRC. And I think, again, I think the deduction of this, this whole two, two additional headcount at the HRC had had a couple of factors, few factors. And this is what we've already discussed. Because what you've noticed is once we got to the end of that conversation, we were at a conclusion that if we were going to do something in another way that we would need additional resources to do it. Okay. So this is the presumption that we would be doing things another way in the HRC. That there would be less time devoted in, say, for example, training directed at implicit bias. And maybe that training at the HRC, that training component that left would be a part of this new role that would be in their responsibility. So that might free some of their time up. But even if that doesn't happen, if we're talking about trying to fill in a litigator and bringing an outreach coordinator, it still comes back to money. And we've spent about as much money as most of you make in about three or four months on this issue in its history. Mark, I'm seeing a lot of recommendations here for staffing. But I have yet to hear anybody totally quantify what the issue is that we're trying to get at as far as just how pervasive is it throughout government. I'd like to know how big the problem is before I talk about staffing up for it. Well, there's two answers to that. I think number one is that if you take a look at the explicit part of the conversation, which is this whole HRC business where we were talking about staffing, I'd have to defer to Karen Richards. A lot of that stuff is in the executive session and there will be stuff, there will be investigations. There will be stuff that's been settled, if you will, prior to the time it was determined. And we're not just talking about systemic racism. There are all protected categories under the HRC. There's a pretty good case load. And I think from what we see on the outside, yeah, I think they stay pretty busy at the HRC. As it pertains to systemic racism, that's what I can qualify to talk to you about. And what we know is that there's only one place where we can measure it and that's part of the issue that we're trying to resolve. The only place we can measure it as I stated in my last testimony is in the criminal justice system, specifically with law enforcement, because we've been collecting data for the last 10 years. And the creation of this dysfunction and this role is explicitly for the purpose of beginning the process of collecting data across the remainder of the criminal justice system as well as housing, education, access to health services, and employment, and economic development. So 10 years ago, sir, they were saying the same thing about law enforcement that you just said. But because we started collecting data, we've determined that there is an issue. And if we believe systemic racism exists one place, then it doesn't exist every place. And if it does, how do we measure it? And that's what we're here to talk about. It seems like based on testimony we heard the other day that people are pointing to law enforcement and others as an example of how it has really, I think the term was used at the glass is three quarters full. And I mean, if we're continuing making steady progress, why is that a bad thing? Well, for the record, I never said it was a bad thing. Just to make sure that we're on the right track here, what I said was it was the only measurable function within the government. And because we're able to measure it, I guess you could extrapolate yourself that it's a bad thing because we discovered not very pleasant information about the numbers that came out of it. But the only reason we were able to do that is because we collected the information. And that's why law enforcement stands as a shining example for this methodology that we're rolling out because they have proven that we can measure it. And as David said, if you can measure it, you can't manage it. Thank you. I'm measuring the last time we spoke on Wednesday. I thought I heard too that we are hearing data from the HR of our state employees that we do have a higher, for people of color, there's a higher turnover rate in our ranks. So that would be another area where we've begun. Maybe we've only just begun. I don't know how long we've been collecting that data. I've heard the same thing. I've heard also things in housing from the legal aid report on 2015 of some of the challenges there and some of the benchmarks that could be measured on a regular basis. But you've hit upon something. And what you've hit upon is part of the key is because as this person or this panel, as we roll this out the expectation is that those key data points that they would be nailed down that we would make a final determination on exactly what those data points were and then begin the process to consistently collect that data on a regular basis and be able to aggregate that data and correlate that data and make it just as meaningful as the data that we get from law enforcement. So Mark, one of the things that's been confusing in the testimony that we've heard is whether the data does not exist or whether it's just not centralized. And I mean, I've heard that there needs to be better centralization and transparency of the data but I've heard a lot testimony that the data exists. And so, I mean, do you disagree with that statement that the data exists? Which data? Well, we have never heard in specific terms what the data is. The only real specifics we've ever had is the data on traffic stops. But we have heard general testimony that the data exists. It's just maybe difficult to find. So you're talking about other data besides traffic stops? Yes, because I mean, those do speak to centralization of data. And so that would make me assume that there is data. Right. And there was a reference in earlier testimony in regard to the Act 54 report. Right, the report, yeah. So I think the answer to the question is yes, the data exists. I think the logically, I mean, obviously I can't give you, you know, speak to you empirically, but logically every single function in this government is supporting just full disclosure of my background, computer system security. So when we start talking about business impact analysis in terms of looking at a business and looking at business processes, looking at systems and networks that support those business processes, those databases and so forth, looking for critical points of failure within those data chains, I am an expert in that area. Okay, so when you look at data processes in terms of the, or the business processes really associated with any business function across the entire organization, what you will find is first of all, what they do. The question is what information do they need in order to get done what they do. The other question is what applications, what systems, what networks and what databases traversing and occupying is that data. And almost every function that occurs across this government, at some point or another, there is a data entry function that occurs. Okay, so yes, I can assure you that there are data and they are there. The question is what data is the first question that I ask you because, you know, when we went to law enforcement, we didn't say bring us the data of what we said in Act 134, 2012, we said bring us this data. Do you stop someone? Do you search them? Did you find anything? Did you arrest them? Did you cite them? We gave specific details, we misused the force, but we gave them specific details on exactly what data they were to be collected and they've been collecting exactly that data for the last ten years, maybe five or six legislatively mandated. And as a result, we've been able to gather that information. So the question is in housing, for example, or in education, what data? What are those critical decisions that have high impact that could potentially adversely impact people that clearly are informed by bias, so there's high levels of discretion, you know, what are two or three of those decision points, if you will, or more that we can identify and mandate, if necessary, that data be collected and then we'll start talking about the aggregation of that data and the correlation of that data across that particular system. But it gets bigger than that because the big data is, is how do we aggregate and correlate all systems? And I think that's part of the function of this role. And the whole, the depth of that question, that's just point six and seven. Sure. So six is general observation. Just going over the legislation itself, again, 868, it just occurred to us that we never really defined at what point agencies were going to begin to collect that data, those data. So I guess I'm, it seems like we got a little bit of cart for a course here. You're talking about collecting data, but sometimes I don't know that we're even, are we asking the right questions to collect the data from? Because you and I, if we're working on an issue together but we're not really talking about that issue, you may have questions that I never even think of. So when we talk about the data that's out there, there doesn't seem to be a general consensus on what even the questions are, does there? I'm going to have to ask you to restate your question because I really don't understand where you're going. Well, you're referring to that there's data out there, but my sense of things is that there's no general consensus as to what's the questions that we should be asking uniformly to get that data from. Say for instance, okay, we're talking about people of color and the turnover in the state government, right? Well, you could just say, okay, you take that one given number, but maybe it's not the work environment that's causing the turnover. It's something more proportional, where in the private sector we have what's called an exit interview where you go through and you spend some time with the employee. I said I'm familiar with the private sector. So you're trying to drill down a little bit to find out where you have that turnover because in Florida I get a lot of money from you and I want to know why you're going. Right. So I think I do understand your question. And again, I think your question, state of the car before a horse is... I don't know. Your question is almost characterized as such because you can't really do an analysis on the data until you get the data. So the state police weren't able to contextualize or to quantify or qualify or challenge anything until they began to collect the data. So now they're at a point to where there's a pushing and pulling of Stephanie Seguino and they're saying, well, you know, maybe it was dark. Well, you know, actually there's a lot of folks coming across the border. So there's a lot of context that has to go into analyzing the data after the data are collected. But first you've got to get the data. So maybe your question is, how do you decide which data? And if that's the question, then again, I think once again, that's totally the car before the horse because what needs to happen is we need to task some type of organization or consulting agency or depend upon this particular function to go in and conduct some type of consultative approach to be able to do a business impact analysis to make a determination as to what types of decisions that are being made that are highly impactful before you determine which data to collect. And hopefully it would be that data that represents those high impact decisions that are typically highly discretionary. Thank you. If I could make perhaps connected to a blue dot form. With regards to point seven, is an example of what you're talking about, Mark? Point seven, speaking specifically about law enforcement, race, traffic, data collection is supposed to start up again. It's not required to start up again until June 30 of 2019. Is that meaning that it's not required to be collected now and the intent is to start collecting use of forced data at that time, meaning the end of June 2019? Madam Chair, I think I can bring some clarity to both seven and eight just at the same time because they are similar in nature. The title 2023-66 often referred to as the fair and impartial policing policy. Also, there is a component of title 2023-66, which is data collection. That's where it lives, data collection. And the original way in which this was written, the proposal to include use of forced data collection was written in such a way where it would be phased in and this is really structural in terms of how it is written in the statute. The manner which is written in H868 seems to suggest that the way because what they did is they just simply changed the date to the main paragraph and then included use of force. Whereas what they should have did was they should have stated that use of force would be integrated at a time in the future. So in short what this does is it makes it seem as though no data collection would have to occur until this date to include the data that's currently being collected. So it just could be phrased in a better way just to make sure it indicates that if we're going to collect use of force data that particular component of data collection would start on this date. And the same thing with the, if you take a look at Section 8 when you're looking at training it was written in the same way. It made it look like training would start in March of 2019, training is already underway. So it's just appropriate use of force, de-escalation and cross-cultural awareness training that would start in 2019. Okay. So I was just asking the committee to be mindful when you read H68 that that particular language could create a problem for us if it was introduced as it was stated. But if you would refer to the amendment that we submitted on S281, which I provided to you in email, that language is closer to where we want to be. So that covers 7 and 8 Madam Chair. You notice there was no user as 111 witnesses and interested parties. Now, you gave us a ton of information. It was very important for you to walk us through this. It put, if you will, clothing on the otherwise unclad. I thank you for an opportunity to appear. I appreciate your coming back to help with that. It's a pleasure. And I also would hold out that if there's anything that the committee or the chair would require in moving forward to make a determination on moving forward, I would avail, I'd make myself available. And a question in that regard, because knowing it, it's not the easiest thing sometimes to trace between the character from here and back again. I made a full day already. Would by telephone be? That would be fine. We must have your phone under somewhere. I'm sure it's on the record. Thank you again. Thank you so much. And be safe today with all of the stuff happening in the building. Really, I do.