 Yeah. Yeah. Yeah. Yeah. They just stepped away. Oh, they couldn't hear us. Jay, would you like to comment on this draft. Or commissioner. I see you're there. We have time for some brief comments. Whoever would like to. Go first. I will thank you. Senator. For the record, Mike Shirley, commissioner of public safety. I will hand the baton to will then Tucker in just a moment. But very briefly. As you might imagine, we remain opposed. This version. We do appreciate the committee's work to try to. To get to something that's more tenable, but this version. Is. We find it quite rushed. Trying to. Assess it and do some kind of analysis in a matter of mere minutes. Most importantly, our underlying objections remain. This serves to single out law enforcement. To remove legal protections afforded to all public employees. That sends an incredibly bad message. It is an indictment of law enforcement. It is demoralizing in a way that is. In a way that is. Difficult to even convey. And without good substance in this instance. It'll be headline generating. And that will create collateral damage and the way of. Impacting are already. Impaired ability to staff. Recruit and retain. That situation is. It is not an understatement. To say that situation is dire. To say that. That further erodes support for folks doing difficult work each day. Is damaging. And I just cannot understate that. So. For the legal assessment, I'll turn it over to. Wilda and. Tucker, who are far more eloquent than I am. Will. Tucker. Yes. Will the white. Policy and training consultant for the department of public safety. And I just want to make sure that. Again, I want to thank the. The committee for continuing its work on this bill and trying to strike a balance. I see a couple of legal issues with the bill that I would like to talk to about briefly. The bill states that it's the intent to codify Zulu, but actually doesn't qualify Zulu. I mean, there you haven't. You know, state it what the test is what people have to prove to you. You know, You've also used. You've also created a inconsistency with Zulu in the words that you have put on the page. Zulu authorizes lawsuits against law enforcement. Employers. If you look at paragraph 30 of that case, it talks very favorably about the right person to sue is the right position to change behavior through training. And firing. And it's because the lawsuit was brought against the employer that Zulu created this new test of qualified immunity. Because employers before Zulu did not have the benefit of qualified immunity. That defense only went with the employee. And that's why it expanded qualified immunity. To apply to an employer and may and shifted the burden as something that the plaintiff must prove. But here you've set out a structure where you've authorized a lawsuit against an employee. Excuse me. Yeah. Employee. And then you're trying to deprive that employee of qualified immunity. Which is something that the Zulu court didn't do. So I'll rest there. And the other issue is that just this, this, this description of Zulu as a damaging damages limiting principle. You know, that is not anywhere found in the case. I'm not sure what you're referring to, but Zulu does not limit damages. And I think so I think those two things would be great. Confusing both to the bar and the judiciary. Because they, they conflict with Zulu. And I'll, I'll, I'll give. My colleague Tucker Jones an opportunity. Also. Good morning, Mr. Chair. My name is Tucker Jones. I'm assistant general counsel. The department of justice. And I think those two things would be really confusing, both to the bar and the judiciary. Because they, they conflict with Zulu. And I'll, I'll, I'll give. My colleague Tucker Jones an opportunity. To address the committee. Again, on this draft. We have been reviewing it just this morning. And I'm just going to focus my comments on page one. So section five, six, oh, seven and subsection A and B. I am, I'm also concerned about the meaning of five, six, oh, seven. Along with will this point that Zulu was a claim. Against a employer, not an individual. This draft proposes to eliminate qualified immunity as a defense in subsection B. But it advances the Zulu case. Which not just embraced. The principles of qualified immunity, but incorporated the. Qualified immunity legal standard into the elements. Of the cause of action it created. So the question arises now. Of whether a violation of clearly established law under. The Zulu cause of action. As modified by this draft. Is supposed to mean anything other than clearly established law as defined by our qualified immunity case law. So it is puzzling to abolish the doctrine. In subsection B. While at the same time endorsing the case that embraced the doctrine and put it. The doctrines legal standard into the act of. This question remains not withstanding the fact that the doctrine is typically pled as a defense and Zulu incorporates the doctrine into the elements of the cause of action itself. And this question also remains not withstanding the fact. That there is an alternative disjunctive prong. Of bad faith in subsection B. And this question remains not withstanding the fact that there is an alternative disjunctive prong. Of bad faith in the element of the cause of action. Itself. So this is a. It's just a foundational concern with. The way 5607 is constructed. Kind of independent of the policy considerations. And. Regarding this legal doctrine. And so. I will just leave it there. For now. As. Just limited to. This legal issue with 5607 specifically. Thank you. Thank you. Thank you committee. This is JDS from the ACLU of Vermont. I just want to note that while we are, of course, disappointed that qualified immunity is not, you know, it's not on the table to be eliminated right now. It is a defense and needs to be eliminated. I will say that the current draft does send a message. And that message is that the committee is interested in the needs of communities across the state. That have lost trust in policing. That have lost trust in the justice system. And that have been denied access to justice too long. I think it's important. That this issue at least be looked at. And that Zulu be seen as the law of the land. That's what this bill does. So we appreciate the committee's efforts here, at least to find some way to ensure that. I think it's very clear. I think it's very clear based on the decision. It introduced a limiting principle on damages remedies. It's very clear from what the court said that. And in the language here, it makes clear that. That's what the intent of the bill is. I think it's very clear based on the decision. As to the substance of the bill, I'll be quick. I think the courts know what Zulu means. I think it's very clear. Based on the decision. It introduced a limiting principle on damages remedies. And I think it's very clear that. That's what the intent of the, of the legislature is to apply that standard forward to all police officers. However, I do agree with. Will the whites. The testimony regarding the confusion in talking about actions against law enforcement officers specifically, because this bill doesn't actually create a private right of action any longer. So I think it's very clear. That actions are only available against the state, county or municipal. Entities. And so I've, I've sent senators here sent you some proposed language to that very simple change. I think to make, make that clear and to cure this confusion. I also provided that to a ledge council. And so I think that the, the, the, the, the, the, the, the B of 5607 makes a lot of. In. The other changes that I've discussed. The last thing I'll say is the section about a report. On settlements. The last sentence there. Removing transparency from. The names of people involved in. The last sentence there. I think we're getting some concerns about that in terms of just. Public ability and government transparency. We'd suggest removing that, that last sentence there. Currently. Settlements with government entities. Would. I believe by and large. Unless subject to a different exemption of the public records act would be publicly available documents. So I would appreciate the committee. Working toward on this bill, moving it forward. Ensuring that we get some kind of report. From ledge council on what the state of the law is so that we can hopefully move forward to issue. And we'll. It'll be clear that, that the legislature does need to act here. I'm happy to answer questions, but thank you for this. I apologize. I, I came in late. Why did you say we should remove? So personally identified information. My, my understanding is that currently that information in. Court judgments, of course. But also in settlements would be publicly accessible. And. So this would be an additional exemption kind of that you would be able to identify. So you would be able to identify. And then. And then the final concerns. As it relates to judgments. The court being having to be redacted. For personal identifiable information. And then similarly for, for settlements where you're talking about government entities. Settling cases. And, and having whether it's damages or other remedies. Included in them. So that would be. Concerned, Right. So invit้ing. Tent here to, to make this for all cases, it's only in terms of this record. That would be accessible to the legislative council. And others. None. That might be my misunderstanding that was unclear to me. Based on the language, but. If that's, if that's the understanding. We've heard from both sides that one side says there's a huge problem, the other side says it's not a problem because people already have access. And this would be just kind of for the purposes of this record. So, I did not intend to make it the new law in terms of public records. Just to ask Jay a quick question. Yeah. Jay, you heard, will the Tucker talking about the conflict between subsections a and B and 5607 on page one. Do you have any comment about whether you perceive any conflict there. No, I don't perceive a conflict if there is. There's right now if we are applying Zulu to state municipal and county entities, which is the intent of this bill for the actions of a law enforcement officer that violate article 11. Part B. There's no conflict because qualified immunity, because that's basically what Zulu says that qualified immunity can be imputed from the officer to the state entity and what what this bill would be doing is extending that to state municipal and county entities are, you know, certified law enforcement, the actions of certified law enforcement. I had understood the argument that Zulu applied to employers. This is now shifting the conversation to the employee. And I understand their argument to be a conflict between the two provisions. We're adopting the Zulu standard which covered employers. This now brings in the employee or those two phrases in conflict with each other. I had understood that to be their argument. Joe, couldn't it be additive. In other words, couldn't this be adding the employees to Zulu. It is. And that is creating a new language. It is creating a private right of action against the employee as opposed to the employer. Right. I just don't see it as a contradiction. I see this. Well, it says the intent is to quantify the damages limiting principle established at Zulu. And the argument is I understood it from Tucker will do was that you are now moving beyond that to actually create a cause of action against the employee. So any action against a law enforcement agency. You could if you were looking at line 18 but this is now damages against the law enforcement officer if I understood their testimony correct. Zulu is limited to the employer. That's what I'm saying. This is now creating a new right of action against the employee. And so the right of action against the law enforcement agency. I don't understand where you're going to. Yes, you could do that. But that's not what this says. No, no, no, that's what I'm going to do is quantify Zulu to make sure it covers all the law enforcement agencies. And so online. That's what Zulu did. We should be consistent. It was just against the wall against the state but against the agency. The law enforcement. It was a certified law enforcement officer work for the town. Westfield. That would be the title question. So you put law enforcement agency it covers all. But anybody who has a certified officer is a law enforcement agency. And what I had done in the version that I'm currently editing is just add the definition the cross reference to 20 USA section 2351 a which defines law enforcement agency as an employer. That should cover that objective. So that would be a change is that. Does that address. I'm not suggesting older addresses you're concerned about the bill. Sorry about the expansion. I'm having a hard time hearing. Senator Sears were you asking me a question. Yes, does the change to instead of law enforcement officer to law enforcement agency. I don't. And I said, or I recognize it doesn't address your concerns about overall bill that were expressed by the commissioner. But does that address your concerns about expanding Zulu beyond what the decision was. Yes, if paragraph a is limited to law enforcement agencies and the employer that is consistent with Zulu and addresses my concern. Be however, if you left be as it is, it's kind of nonsensical because it would never be a defense because you wouldn't be suing the law enforcement officer. That would be striking. Okay, so yes. Yes, yes, if you if you include if you fix a by limiting it exactly to what Zulu said which is the employer and eliminated be that I believe you have Zulu. Yes, with Senator with your question qualified immunity is something that would only be available to the individual not to be to the agency so it wouldn't be necessary in that sense. just to address the way it was phrased as a damages limiting principle. In section 54 of the Zulu case, there's a discussion about the purpose that qualified immunity has, one of which being a damages limiting principle. And then it goes on in section 55 to talk about that a plaintiff's seeking damages. And then this was a way to limit the access to damages to consider all of the, or to make sure to balance all the considerations facing law enforcement officers. So there is a discussion of a damages limiting principle that I think is in concert with the holding of Zulu and it's sensible for clarity here. And also again, when it's added to that it's a burden, a plaintiff must prove to obtain damages. I think it's sort of a belt suspenders approach just making clear that this is a limitation on damages, which I think was the bulk of the discussion in the Zulu case. So that's the explanation as to why it was phrased and it drafted that way. And then, but to Will's points about if you just make it against law enforcement agencies, that would be more consistent and you wouldn't need subsection. If we, on page two, line eight, the strike the last sentence, well, first and foremost, personally law enforcement has done problems making it connected to a judge for herself and shall be redacted prior to disclosure. So that was Jay's suggestion to strike that. Yeah, we can do that as well. And then it would just be subject to the exemption from the public record side. That doesn't have to happen. All right, anything else? Karen, do you want to comment? Thank you, Senator. Yeah, I do have a couple of comments. Karen Horn with the Vermont League of Cities and Towns. We are concerned, as the commissioner mentioned, that this legislation continues to single out law enforcement officers on the issue of qualified immunity versus all other public officials who enjoy that protection. We're also concerned about writing what could be some significant changes in a pretty short timeframe that always tends to lead to unintended consequences. It does seem to us that if you were going to conduct a study, the doctrine and the issue altogether that you would include in that study, what is the appropriate way to handle or extend the Zulu case? And then one other comment that I need to make is that we would be very concerned if the Section 5608 record of case disposition were adopted without the language or personally identifiable information would be redacted. The Public Records Act applies to governmental entities, does not apply to individuals, is my understanding. So we think that that also might be something that a study would refine, I guess is the best word. Thank you. Thank you. So Karen, what you're saying is that if we took that line out, then all information about both the person that is being, any judgment, all that information would be public. So everybody would know who got the settlement, who the settlement was against. Is that what you're saying? That we shouldn't be disclosing that level of information? I think that would be the case. And we think that that is not something that really should be in the records of all final judgments and settlements. That's maintained by law enforcement agency. I'm an attorney, I can't delve too far into the details of that, but if the purpose is to find out how many such judgments there are, we don't believe that you really need to have the personally identifiable information as part of that. And the way it's, if that's taken out right now, would affect everyone as you indicate, Senator White. Thank you all. Anybody else? Brad and I are purpose of saying it, we've got a text from Vince asking that section B, page one is not moved like an opportunity for us to find out. Just so you know. All right, Brad, go ahead briefly. Muted. You're muted Brad. Okay, can you hear me? Yeah. Okay. First, thank you, Mr. Chairman and members of the committee. I agree with everything that Mr. Diaz has said. I emailed each of you on Monday, but based on this morning's discussion, there are two points I wanna raise first with what Council for the League of, or excuse me, with what Ms. Horn said. I just read an article yesterday about how in most police misconduct lawsuits, the millions and millions of dollars that are paid out by municipalities, most of those payouts are based upon the actions of repeat officers who are repeat offenders. I think that if you follow what Ms. Horn is saying, you're depriving the public of very important information that would target, that would be beneficial and would identify officers who are literally repeat offenders. I think anytime you remove basically a, you provide a secrecy covenant in any kind of settlement of civil litigation, it is a profound disservice to the public. So I would ask that subsection C not be modified and that there be full disclosure to the public of the officers who are the subject of any settlement. Chiefly, I'm concerned about the notice of claim with due respect to legislative council. I haven't researched this. I don't know if there are any Vermont cases for statutes that involve notices of claim. They're common in New York and other states. My concern is that it unduly burdens plaintiffs, particularly if the plaintiff has not yet retained counsel within one year. That, what you're basically doing with, I think it's 5609, you're imposing a one-year statute of limitations. There is no need for a notice of claim. There has not been one in tort cases even against municipalities. I believe, although I could be mistaken in Vermont, sometimes particularly with regard to psychological injuries or traumatic brain injuries, the full extent of the harm is not known. Where are you? I think you have an old version. There is no section 5609. The draft of February 25th. No, March 11th. Okay, I apologize. I did not see that. All right, then. If you're interested in time, Brad, I really appreciate your effort. I've got five minutes left to either kill Bill or bone on it. Thank you for giving me the chance to speak. I will. No problem. And I appreciate your comments, Senator. Commencement early. Why don't- Thank you. Just very briefly point of clarification regarding the accessibility of public records relative to settlements. Again, this is on the fly, so I haven't done a robust analysis, but all the cases I've been involved in where there have been settlements, those are public records, including the names of the public employees involved in those settlements. So do what you will with the end of the bill as drafted, but that information is currently public. It would be our position under the existing public record statute as it should be. I'm gonna ask Senator White to ask the government operations committee to look at the section between now and the time we get to both parts of the call. Just briefly. Just ask. Nevermind. All right. Either. Okay. And that is- Okay. Do you want that too? All right. So what we've got is making clear that Zulu is about the agency, not the law enforcement officer, so it strikes their reference that both Wilder and Taka brought to our attention. And it also strikes lines of the last sentence of section 56.08. Okay. Okay. Is that clear to everybody what the new version would be? 4.1. The law enforcement agency now is starting to be- The only question is the damage limiting need in there. Quite a- If we just said- Isn't that a principle? 10th of the General Assembly to codify- The principle is- The principle established by the non-Spring Court, Zulu, B-State, blah, blah, blah. That sounds good. They go with the damage limiting. So they would read the 10th of the General Assembly to codify the principle established by non-Spring Court, Zulu, B-State 219, Bt. The one as a burden of the planet must prove to obtain damages in the action brought against any non-state county or municipal law enforcement agency. Any certified law- No, no, no, no. Any law enforcement agency. Yeah, well, it's not a law enforcement agency. Any law enforcement agency. Any from non-law enforcement agencies. Yes, certified. No, no, no. It's not officers. It's a law enforcement agency. Which includes places like the Secretary of State and DLC. It's anybody who hires a certified officer. Is it? No, really? Yeah. It is the Attorney General Assembly to codify the principle established by Vermont, Supreme Court, and Zulu, B-State 219, Bt. 1 as a burden that the plaintiffs must prove to obtain damages in any action brought against any Vermont law enforcement agency for a violation of Article 11 of the Constitution of the State of Vermont. And I think you were going to cross your reference, I think it's Title 20. Yeah, I'm going to add another subsection that's crossed, saying that the law enforcement agency has a safety net as well as the law enforcement agency. The next question is on Section 5608. Do we leave? Do we strike all persons personally on Line 8 to the last sentence? If it's already there, it's according to the mission here. Yeah. All right, that's the bill. We will be leaving lines 8 through 10 on page two. Seems it's already public record, according to the mission. Sure. Well, but this says it should be, was it testimony that it's now available but not redacted? Because we're saying here that it should be available but redacted. I don't know, what did he say? Commissioner, are you still there? Well, just if I made it speak on that point a little bit, I know that there was discussion about the Public Records Act and how it plays out. It would be a request that you make upon agency, but you could request anything that's within the agency's purview, so individual records, whatever, judgments. But some of the exemptions are records that by law are designated confidential. Ones that may interfere with enforcement procedures or to be reasonably expected to disclose the identity of a confidential source, things like that. So the Public Records Act may already protect against inadvertent disclosure. It was really, I think, a drafting attempt to be a balance of subundant approach, so. So I think you can take it out. Yeah, if we strike down, we'll just have an interesting. Yeah, it's the existing. And personally identified, it's usually redacted from the Public Records Act. Okay, so most of the reports favorably Senator Baruch's move, we report the bill favorably, amend the bill and report it favorably. I'm looking to amend the bill, amend the bit F-254 as seen in draft 4.1. That's the 4. Any further discussion? Thank you, please call the roll. Senator Benio. No, I feel like that should make an explanation but I don't think we have time. No, I am concerned that we're doing this in the last minute, I want to applaud you for these steps to try to make this move. One of the things I really like about it is you're calling this collection of data and we don't know what they have. But I'm very nervous about this sort of seating and I know it's going to go back to us if you're having the same conversation in five weeks. And nobody has done one of those. I would have hoped for something much different than we're passing. Good, Senator. Thank you. Yep, Senator Nica, no. Senator White, yes. Senator Baruch. Yes. Senator Sears. Yes. Now we can report the bill favorably. Senator Baruch says. No, we're taking now a vote on the bill. Okay, that's what I thought. Okay, ready to take it? Yeah. Senator Benio. No. Senator Nica, no. Senator White, yes. Senator Baruch. Yes. Senator Sears. Yes. $90. Thank you all. Thank you. Thank you. We'll be the reporters. I guess it falls to me. Did you want to report it? No.