 So good morning folks. How we doing? We are going to continue with our flowering through the language and my bills open to page 19 although I've been flipping back and forth so let's call Michelle and I bet she can remember where we left off. Good morning. So for the record Michelle Childs Office of Legislative Counsel and we're having a simplifying conversation about local permits slash licenses yesterday. So actually I wanted to all just set the just kind of remind everybody where we're at is that so the league had put forth some asks of the committee and we're starting to kind of walk through those and Tucker was going point by point with those and after the committee broke Tucker and I spoke and trying to think about how we can help you contextually kind of discuss and move through those issues and so what I did is I just did a quick amendment with some of the things that were kind of straightforward and simple maybe the league has asked for a clarification like I'm talking about a license in the same term and a couple other things and so you have that here up on the screen and then also Tucker and I were talking about maybe just he came up with a list of bulleted points for discussion points around what the league brought up and because they had asked for an expansion of authority and so we just kind of boiled that down so I'm actually going to turn it over to Tucker and he can talk to you about this. Okay good morning Tucker Anderson office of legislative council I'll jump right into the bullet points what I did was organize the items that were discussed yesterday so that we can move sequentially through those suggestions as they are arranged in the underlying bill and put them into question form so that you can have the straw poll that you intended to have yesterday afternoon so the first decision point that Michelle already touched upon and it was discussed yesterday afternoon quite some time should subsection be in section 862 be amended throughout to use a single term for municipal licenses refers to which one of the two didn't so hopefully we settle on municipal licenses since that's the way he votes yes for the instruments here too for refer to as municipal license so I already wrote some language for you because I thought that you guys had already decided on that one so you don't have to thank you but perfect all right so committee does that seem like a good change all right okay the second decision point I'll just make sure that I'm reminding myself these as we go through I did bring out yesterday that members of the committee always insist on having a side-by-side that I still do not know how to do I mean I apologize like a teaching moment Jim how many lessons do you want I'm not I'm not going to all I know is it says oh which one is it I need a picture of this you know this is my son out of whistle you always feed him crackers first the second decision point here this was arranged in two parts of win suggestions was whether that same section should be amended the active voice and reflect language from section 167 a it is here highlighted in Michelle's amendment seems clear to me committee okay the third point is a bit less straightforward and is not in Michelle's amendment up on the board and that is whether that subsection be should be amended to broaden the conditions on the issuance of municipal permits and there were two instances where Gwen suggested broader references it would incorporate more bases for the conditions so the first was the suggestion that the specific references to municipal ordinances be eliminated and that conditions be tied to the entirety of 24 vs a section 2291 which contains the list of enumerated municipal police powers this would be broadening the bases for those conditions that is the first sub decision point here that just I'm not particularly comfortable with that yeah can we I'm just I'm not clear what we're asking the local the town to do here at the time that the municipality is issuing the permit the way that s54 is currently drafted yeah they may condition the issuance of that license on two bases one being ordinances that are tied to nuisance public nuisances or signs okay so the lead suggestion is to eliminate the reference to public nuisances and signs and tie those conditions to the entirety of 2291 2291 has 32 subdivisions containing the express police powers that municipalities have I got it I'm fine with it I mean I get the political differences so mine is very simple the highlighted thing on the right inside the screen which document is that this is I don't know the title it's under Michelle's name for today and it's the s54 local regulation because I'm looking at the bill it's passed by the Senate 862 is only this long and it doesn't have any A B or C okay so the decision point is whether to make these local control licenses contingent upon the entire 2291 discussion I think we should leave the language the way this is a long list of police powers to things about prohibition of circuses carnivals menageries yes I think we're just opening up Pandora's box itinerant vendors peddlers door salesman Jim on the liquor licenses do we tie localities hands as to what we do yes public nuisances and it references entertainment entertainment is not one of the enumerated powers in 2291 so really it is one basis public nuisances so I will withdraw my support I mean it seems to me it should be from making the change it seems to me it should be consistent with what liquor what it how to do for liquor and I get the signage part but in entertainment and liquor is really talking about bars and what they do and I less I'm missing something contemplating other discussion ready for a straw bowl perplexed so my sense is that we will say no thank you to this suggestion move on to the other section of this question the next is that the reference to specific permissive zoning bylaws be replaced with a reference to the entirety of the municipal and regional planning and development chapter and what I highlighted yesterday is that there is a specific section in sub chapter 7 of the chapter that allows municipalities to adopt any bylaw so long as it is not prohibited by section 4 4 1 2 4 4 1 3 or meddling with the appeals procedures so it is very broad questions committee discussion okay with saying no thank you to that request all right the next item is up on the board in Michelle's language here that is should 24 vs a section 4 4 12 which contains the express restrictions on certain types of bylaws be amended to restrict municipal bylaws that would prohibit the operation of a cannabis establishment so the language you see on the board states no bylaw shall have the effect of prohibiting the operation of a cannabis establishment cannabis establishment has the same meaning as in this chapter so this is again following the basic procedures in the bill which is to say that a municipality needs to have a wide vote in order to prohibit the cannabis establishment correct and it is contained expressly in the underlying bill here in subdivision C1 and the suggestion from the Vermont League of Cities and Towns was this is fine but it should also be added to the zoning chapter so that the planning commissions at the municipal level that work within that chapter all the time will know where to find it in the reference it the next suggestion is that 862 C2 here be removed and that the language be added to subsection B to reflect 7 vs a 210 subdivision A1 and what I highlighted for the committee the other day is that the suggestion is that those are equal powers and that swapping them out would be clearer but they are in fact not equal powers subdivision A1 and the liquor title dealing with the local local liquor commissions is a grants those local commissions more power that is that they are capable of enforcing all levels of liquor regulation through their municipal licensing process so they are capable of suspending and revoking their municipal license for a violation of any level municipal administrative or state law and that is not the case in the underlying bill discussion committee what's the harm it's I'm a laborers in here talk to me the difference between the way that these two would be set up in the underlying bill the municipal license should be suspended or revoked by that local commission if the cannabis establishment violated the local conditions or violated something that is in the rules that the board prescribed in the liquor title and an important distinction here might be that these liquor establishments are somewhat ubiquitous and the state would have a difficult time enforcing the set of state laws surrounding this the municipal permit can be suspended or revoked based on a violation of local conditions rules that are given by the Department of Liquor and Lottery or state law so there's a broader scope of enforcement there that the local commission would be able to carry out the question you asked sounds more like a policy discussion and decision so I'm not capable of answering it so I would just throw out that you know Tucker made reference to liquor establishments being ubiquitous I think they're also over the course of our history much more familiar to all of us and to our local government officials in terms of what they are and what they do the difference in establishing a regulated cannabis market is that I would guess that cannabis grow facilities warehousing extraction facilities etc. are not at all ubiquitous or familiar to our local government officials and so the question is do you do you open up all of the rules and regulations and and tell the local folks you can enforce based on any one of these knowing that most of your local you know volunteer officials are not going to understand what the operation of a growth facility looks like what an extraction facility looks like what manufacturing I mean I'm I'm comfortable staying with the language that is in the original though because until until there's greater familiarity I think on the part of average citizens about what the operation of a cannabis facility looks like I you know I worry that the enforcement of all of those rules should be maintained by the folks who have expertise in them I would only offer that I think we walk a fine line in forcing certain dictates from the state to the locality as to what they can and can't do in this new field for example if a rower got licensed to grow a field of cannabis marijuana and it had an odor or there were security issues whatever and neighbors were complaining to the select board I'd like to think the select board had some authority to intervene much like a select board would get complaints about someone that decided to raise pigs and have a pig farm and I don't think we want to totally sign up you know handcuff the local board I think we just have to be very very careful on this no I don't disagree with you I just think if my neighbor was annoyed by the pigs that I was raising he or she wouldn't have the right to shut me down you know I mean that would be more of a neighbor-to-neighbor conversation the town could pass a zoning change that specific situation without picking on the specific situation you picked up but go ahead would be a right to find a public nuisance okay which municipalities under this bill are given the ability to revoke at the local level that license for a violation but isn't that a similar issue if that cannabis has an odor that your neighbors like isn't that a nuisance then yes that is what I am saying okay that municipalities under this are given that authority's power okay and the ability to revoke the local license for that reason unless the neighbor came to the nuisance because if you moved in next to my bro operation after it had been there for three years you would not be able to force the town to abate it is there a mechanism in the bill that would allow municipalities to come to the board with any issues or complaints that they might have I am not sure how the bill functions with regard to referrals to the board that might be a question that Michelle can answer about how the state goes about the suspension of revocation process and whether they receive referrals of violations I'm sorry is there a mechanism in the bill that would allow municipalities to go before the board if they had complaints that were outside what's already in here signage and public nuisance there's not anything specifically on there I think we're going to be looking at the suspension of revocation language we talked a little bit about that we first kind of went through there and so that could be something you know that's all and the board is going to be developing rules for the relationship between the local commission and and and the board with regard to the forms and and the rules of how they're going to enforce the local permits and we can look at putting something specifically in here on that we can put this on hold and come back to it or we can dispense with it right now we do need to shift years but what picking up on what Marsha offered could that be a path forward for something in between that gave the town the opportunity to petition for a I mean it's just hard to know what all the possible scenarios so let's put this on hold thank you thank you for teaching me the side by side magic is growing tired of hearing but Betsy can do this okay so we're gonna shift gears now Jay Johnson who is general counsel is going to come and present to us good morning thank you for being here morning thank you so much for inviting me I know that the committee is I think aware of my opinion the governor's office has taken a view that the current construct of the cannabis control board presents an unconstitutional separation of powers issue but I would also like to say just sort of to set the table the attorney as you all probably are aware attorneys can reasonable attorneys can can differ you know if you have three lawyers in a room you're gonna have four different opinions and when you look at the structure of the way that this is sort of set up you know the legislature as a separate branch has its counsel the governor the governor and and the executive branch has his so we are all going to probably disagree from time to time on how we interpret the relative scope of authority of our respective branches so I just would like to start there that this is not intended in any way to say that I am right and others are wrong it's just to say that this is my opinion and I'm happy to lay out the basis for that opinion so anyway first of all I agree and I and the chairs shared some materials with me regarding ledge counsel's analysis I do agree that ledge counsel is correct when they say this is a Vermont separation of powers issue not a u.s. Constitution separation of powers issue I further agree that there are limits on legislative action in the Constitution I think that that's fairly self-evident so that's where I start with my analysis is with the Constitution itself the Vermont Constitution itself and the frame of government is to give the supreme legislative power the exercise to the Senate and the House of Representatives the supreme executive legislative power the supreme executive power is exercised by a governor and the departments are to be distinct so the legislative executive and judiciary departments shall be separate and distinct so that neither exercise the powers properly belonging to the others with respect to the legislative powers express legislative powers relate to the exercise of powers in all acts of legislation and they shall have your very broad sort of catch all provision where you have all other powers necessary for the legislature of a free and sovereign state but you shall have no power to add to alter abolish or infringe any part of the Constitution and again I'm not here to advise you but I'm just reading from the Constitution to sort of set out the Leo basis for my argument the Vermont Supreme Court has recommended it has recognized the lack of specificity in that broader provision in a case called Hunter v. State which is at 2004 VT108 from 2004 which considered whether the legislature had unconstitutionally delegated its spending power and it just noted that chapter 2 gives the legislature powers necessary for the legislature of a free and sovereign state but it went on to say that that provision provides little specificity on the nature of those powers and then there's section 27 of section of chapter 2 of the Constitution which is very clear that only the legislature has the power to appropriate funds for the support of governmental programs with respect to the governor's authority the governor has express authority to appoint officers but there is a caveat that this is except where provision is or shall be otherwise made by law or this frame of government and the frame of government frame of government the Constitution itself does set out certain provisions with respect to the governor's appointment power say for example the the Supreme Court the nomination and appointment of of judges and the Constitution specifically provides for judicial nominating body and who makes who shall make recommendations to the governor and the governor ultimately makes the appointment the governor shall also take care that the laws be faithfully executed I think that this is key to the analysis so obviously the general assembly has some degree of control over administrative agencies through the exercise of legislative power assuming a bill is enacted into law through bicameralism and presentment in accordance with the Constitution the legislature's tools do often include structural design delegation of authority procedural controls over agents agency decision-making and of course obviously agency funding what can an agency do it's usually tied to what its ability is with respect to I mean how much money it has however reliance on this kind of authority has to be informed by separation of powers principles this is not an unfettered power so the structure and vision for the cannabis control board at this time appears to be unprecedented for any other executive branch regulatory body it's a three-member board with one governor's appointee who serves as chair one committee on committee's appointment one speaker appointment so the governor has a minority position on this board alternatively the board is considered is there's been thought to have one governor's appointee one committee on committees one speaker one AG one treasurer in either case an executive director is appointed by and made solely accountable to the board I believe this governance structure violates the doctrine of separation of powers by effectively ensuring the governor can no longer effectively take care that the laws be faithfully executed so my support for this view is found in the case law there is a case and again there's there's very little on point with respect to the scope of executive power so what we are looking at it is case law that most often talks about limits on the authority of the judicial branch and case law that speaks very often to the unlawful delegation by legislature of his authority and very often the court decides I think you know it's making fair decisions and does a careful analysis of these of these claims and it's very rare that there is a determination that the that the legislature has unlawfully delegated its authority so anyway I look at NRADL which is at 164 Vermont 223 from 1995 and in this case the Vermont Supreme Court held that the judiciary's participation in an inquest did not violate separation of powers and the court essentially analyzed whether judiciary's participation in this executive branch function was incidental to the discharge of the judicial function and the court found that it was incidental to the discharge of the judicial function and it did not find an unconstitutional separation of powers issue but there's some very helpful analysis in order for the court to determine the power of each branch and ensure that no one exercises the power belonging to another the court articulates the basic roles of each branch as the legislative power is the power that formulates and enacts the laws the executive power enforces them and the judicial power interprets and applies them the fundamental principle which is referred to by the court is that our governmental structure is to divide power to create a structure resistant to the forces of tyranny the court cites James Madison and Federalist Papers who states that the accumulation of legislative executive and judicial power into one place is the very definition of tyranny however our Supreme Court has also recognized the separation of powers doctrine does not require absolute division of authority among the three branches no one branch is hermetically sealed from the other so the court applies a four-part test but basically and what it said is that the focus is not whether one branch is exercising certain powers that may pertain to another branch but whether the power exercised so encroaches upon another branches power as to usurp from that branch it's constitutionally defined function okay so it's not the fact that you may be involved in legislative functions it will be the scope of that involvement and whether that involvement usurps executive authority so in in Ray DL in this case in order to determine whether the judiciary's role in an inquest proceeding constituted an unconstitutional usurpation the court applied a four-part test and actually I'm reading but it's mostly so I don't forget anything and if you have any questions feel free to interrupt whether the actions that issue are judicial functions or a reasonably necessary or incidental to the discharge of judicial function whether the court's role in another department's affairs is nearly advisory whether the judiciary has any discretion in accepting or rejecting its delegated functions and whether the actions in pair the independent institutional integrity of the judiciary that was the four-part test that they applied in that case so in my analysis I apply this test to this case and so I start with whether the actions that issue are reasonably necessary or incidental to the discharge of the legislative function do you need a majority of legislators in charge of an executive function the actions that issue relate to the charge of the new cannabis control board the board which exists in the executive branch is responsible for exercising clearly executive functions they make rules they administer a regulatory program that includes issuance of licenses and enforcement of the app Boulogne rules they administer the medical cannabis registry they administer a program for licensed medical cannabis dispensaries which is now performed by the Department of Public Safety and they submit a budget to the governor none of these functions from my perspective are incidental to the role of the legislature and yet the legislature seeks majority control of the board through its appointments the second test was whether the legislature's role in the executive branch affairs is merely advisory and in this case no again the legislature seeks majority control of the board through its appointments there's nothing advisory about the role of the legislature in this context the legislature's role in the normal course of its business may be to investigate and oversee the executive branch which it does this is proper role in order to ensure the executive is faithfully executing the laws but it has no authority to both enact and then execute the laws the legislature in this case does not seek to advise the executive as it does in other contexts with respect to say public safety advisory board the judicial nominating board the green mountain care nominating committee the racial equity advisory panel it seeks to usurp executive authority through the appointment process I would be how I interpret the language the general assembly is seeking to vest executive authority in the pointees of the legislative branch the third test is whether the legislature has any discretion in accepting or rejecting the delegated functions well there's nothing discretionary about these appointments or about the function that they perform as the cannabis control board so I would say no and then fourth is whether the actions and I mean in this context I would interpret this to be the participation by the legislature in executive agency governance whether the actions impair the independent institutional integrity of the legislative branch and I would argue that it does for the legislature to make appointments and then exercise its proper legislative role to oversee and investigate those appointees would soon seem to me to impair the independent institutional integrity of the branch so you would essentially have appointees who would also be reporting to the legislature which is not the way that the constitutional framework works furthermore the board is charged with delivering a budget to the governor so essentially you have legislative appointees preparing a budget delivering it to the governor having governor make a recommendation to the legislature whether it's the same or not and then having those same legislative appointees appearing for the legislature to support its budget request I would say that you get one crack at the apple and that's in section 27 which is you hold the power of the purse you don't get to make budgets and then pass them except in the context of the legislative session so obviously you get the governor's recommended budget and you do whatever you want with it but it's subject to a bicameral and presentment process that's the way the constitutional framework works on balance after applying this four part test I would include the legislature proposes to unconstitutionally usurp the governor's executive authority finally I would like to more generally address the limitations imposed by principles of executive authority so when you have a constitution that gives a governor extra its supreme executive power and then gives the governor the personal responsibility to ensure faithful execution of the laws the governor has been given administrative control of the executive branch this support for this is found in US Supreme Court case law and there is a landmark case of Myers v. United States which reformed the principle excuse me that article two of US Constitution which again is slightly different article two of the US Constitution includes the appointment power of the president which is different than the language in the in the Vermont Constitution but article two of the US Constitution also provides that the president has supreme executive power and shall faithfully execute the laws so I would argue that we do the governor does have those general framework that general framework for for exercising his authority anyway that court reaffirmed the principle that article two confirms on the president confers on the president the general administrative control of those executing his laws the court stated it is his responsibility to take care that the laws be faithfully executed I believe there's a strong argument to be made that for the purpose of a separation of powers analysis the appropriate function the appropriate focus is not just whether the legislature has literally usurped the executive function by maintaining legislative control over an executive branch agency although the current structure suggests that it has but whether the structure of this board and its appointed executive director are such that they impede the governor's ability to perform his constitutional duty and by any measure is unprecedented board structure insulates the agency from accountability to the governor and so encroaches on the authority of the governor to faithfully execute the laws as to usurp the governor's constitutionally defined function the governor has again governor has minority representation on the board and may not even remove that appointee the governor has neither appointment nor removal authority over the executive director there is no accountability to the executive I would think this is true as well if the legislature were to structure the board in such a way as to diffuse power so that the governor cannot be the judge of the board's conduct the governor's ability to ensure accountability is an essential aspect of his constitutional duty to oversee the enforcement and execution of the laws and again in free enterprise fund the court related which addressed whether the legislature had vested administrative authority and tenured officers who were not subject to the president's direct control which it found to be unconstitutional it said this arrangement contradicts article twos vesting of the executive power in the president without the ability to oversee the board or to attribute the board's failings to those whom he can oversee the president is no longer the judge of the board's conduct he can either ensure that the laws are faithfully executed nor be held responsible for a board members breach of faith such diffusion of power carries with it a diffusion of accountability without a clear and effective chain of command the public cannot determine where the blame for a pernicious measure should fall the acts restrictions are therefore incompatible with the constitution's separation of powers so I again would like to conclude by saying that I believe the legislature's authority to structure administrative agencies cannot be used to deprive the governor of his executive power and his constitutional duty to faithfully execute the laws so I don't know where to start but let me try a couple okay first of all last year we passed as you remember the racial equality advisory board but an issue came up to the board the way the bill was drafted the the executive director could not be relieved unless the board approved it your governor's office took issue with that and the bill was vetoed yes which might lend one to think that this particular makeup might be also an issue that might invite a veto are you prepared to say that this morning I'm not prepared to speak for the governor on the cannabis bill generally at this point but this particular issue on this particular issue we have expressed our concerns to both the Senate Judiciary Committee the Senate Gabop's committee and now the House Gabop's committee I can't speak to as to whether the governor will veto the bill on this issue alone but you are correct that in the past we have vetoed bills over separation of powers issues I mean you know the governor takes an oath and has an obligation to uphold laws and the Constitution of Vermont and to sign a bill in my view with this sort of structure would not be consistent with that oath okay so let me ask you this we've talked in this committee about expanding the board from three to five members if those two additional members were gubernatorial appointees giving you a administration a majority would that take away that concern again I think I would say it's unprecedented for a regulatory board the board is I mean again the the question with to my mind would be whether that those appointments if they were to legislative appointees whether that appointment is incidental to the authority of the legislature again of course I think that makes that better the governor's appointees have a clear majority on the board and the governor's appointees are accountable to the governor but my question would be why you would need legislators on governing an executive branch agency in the first place when your proper role seems to me would be oversight and investigation of the executive branch itself seems to me that that institutional integrity is something that the legislature want to preserve okay so I heard better simple not perfect we shouldn't let you know good be the enemy of perfect so or what yes or something like that and just finally the Senate bill was pretty prescriptive in terms of who should be on that board in terms of background and experience and I didn't know if the administration had any views on the makeup forget about who appoints it but the makeup to my mind we may have concerns with the way that it's structured and the particular requirements I mean we would certainly want to be sure that whatever whoever is on the board can actually perform the functions so you know obviously when you're looking at something like department of liquor and lottery I think the legislature has generally been very concerned about whether those people have the capacity to operate some kind of a function like that I mean it's a business enterprise essentially I mean being conducted in a governmental capacity for the benefit of the public so my concern would be more operational but I certainly would not be able to articulate a constitutional objection to that kind of structure I would believe I believe that the kinds of qualifications that the legislature decides to impose on governor gubernatorial appointees is part of you know falls within the purview of the legislature through the bicameral and present the process so yeah I don't have an illegal objection appreciate coming in and sharing your testimony thank you just want to ask that as a visual learner is this going to be available for us to pull sure I'll I can I can distribute it electronically the ledge council and provide you with that I can and if you would like copies of the cases I'm happy to provide those as well okay thank you so I now just question now looks down to not whether it's a majority or minority it's that legislative participation exists at all at all so you say well in terms of appointing and having a responsibility for that appointment unfettered on the remission itself I given the language of our Constitution it's very difficult to say in black and white terms what the appointment authority of the legislature is obviously it's not direct it's derivative by reference to the governor's appointment power but it so so and that there's no there's no real case law so the question of whether the legislature could put legislative appointees on an executive branch board is one that hasn't been answered again the argument I think the constitutional argument is harder to make when you have a majority I mean essentially when you when you have a clear path to Google to accountability I think my question would be and a question that will come up in the context of this four-point test was the institutional integrity of the legislature and how do you oversee an entity that's made up of legislative appointees you know when does the legislature you know I know the clean water board has is something that that many struggle with because their legislative appointees who are both recommending a budget and acting on a budget and you know there's there's something problematic about that in the constitutional framework well I don't think you need money and vision actual legislators to be on the board but I don't see substantively a difference for recommendations that's so that's that's again that's a great example of the kind of thing we have now you have a legislatively defined process for selecting members to that board but all of those members are appointed by the governor but some have fairly narrow yes yes and the and the executive branch agency like safe example for you know the labor members have to go through a vetting process where labor organizations are asked for recommendations those come in those recommendations are vetted by a panel which has a labor member on it and then those but again those recommendations are made to the governor and there's a minimum of three I believe have to be sent to the governor so that the governor is in effect making the appointment the commission the board the body is not making the appointment for the governor and we have a long history of incidental commissions that do this exact kind of participation but yes but they're not regulatory I see those as distinguishable easily distinguishable because they're not regulatory they're not performing a regulatory function they're performing an advisory function they're not executing the executive power and again cannabis control board rulemaking strictly executive licensing enforcement strictly executive and you're providing budgets you're overseeing the cannabis control board I mean you're doing you're the medical cannabis entity last year year to our heart last request for differentiation which has no involvement the majority of the people who sit there right they do budgets they do effectively regulations what shall I would say that it's not a regulatory enforcement body it's it the VP has a very narrow charge and that's to make investments in the best interests of the pension beneficiaries within certain fiduciary constraints so I would say that that is you know appropriately within the purview of the treasurer the governor does have two appointees clear doesn't make up a majority of the board but I would not I mean I guess I would find it hard to argue that the governor because this is a quasi-professional obligation in terms of what the VPIC does making very sophisticated financial investment decisions for the pension funds I would say that that is something that you don't want to be politicized that you need to have qualified individuals serving on that board and that you have this I mean I think obviously not that I was suggesting governor's appointments are all unqualified but what I'm saying there is it's a clearly professionalized function and you know what I mean by that it's just you need even the legislature has provided that they should be investment professionals or have that knowledge and understanding of the industry and the issues in order to be able to you know perform that function I would say it's distinguishable because it's not regular it is not per se regulating doesn't issue licenses it doesn't provide enforcement functions it the only rule it has is with respect to its own conflict of interest provisions I would say the most apt comparison would be the department of liquor and lottery itself where last year the legislature rewrote title seven to enact to make a little substantive changes to the department of liquor and lottery to merge that the liquor and lottery divisions and in that case created a body of five governors appointees with a commissioner I mean it's a more appropriate governance structure for an entity of this type should know the answer to this but to each of these board appointees regardless of who appoints them need to be confirmed by the Senate you can decide that I mean you can always decide advice and consent I mean it's you typically statutory not as currently no but but typically that's the statutory provision except you know to the extent otherwise required of the frame of government I mean that is something that the legislature often has in statute so certain you know so commissioners I think typically are subject to the advice and consent of the Senate commissioners and Senate and secretaries but not deputy commissioners so you know the legislature makes those kinds of decisions are there any I mean the part of this board because of the regulatory authority I mean they can suspend licenses so there's a sort of a judicial function to what they do some quasi-judicial yes I mean Green Mountain health care board liquor board certainly has you know with their license you know or other penalties that they can assess are there any judicial appointments today that aren't appointed by the governor not that I know of the PUC is appointed by the governor all of the judicial appointments are are made by the governor that's pursuant to the Constitution I'm thinking labor board cost governors appointments it's hard for me to think of of anything questions committee great thank you very much for the next rounds of the conversation so next we have here from the Attorney General's office and we would welcome you to come and share your thoughts on the board appointments thank you very much for the record David share assistant attorney general with the Attorney General's office first I appreciate the governor's counsel's words at the beginning of her remarks obviously legal opinions are many and diverse and ultimately what we try to do when we're making legal analysis is understand what the court of jurisdiction is likely to decide they're faced with this question and that's what we try to do in this analysis it is the opinion of our office that the structure of the cannabis control board does not present a separation of powers issue and it's our opinion that the Vermont Supreme Court is not likely to find there to be a separation of powers issue so the question presented by this statute is is the legislature encroaching on the executive branches authority and more specifically can the legislature appoint an official who performs an executive function that's the question we need to answer and that's the law that we need to try to figure out a couple of facts to bear in mind and then I'm going to go into our analysis of how we arrived at our conclusion looking through the various relevant laws one note is that to one thing to note about the statutory scheme as it's laid out in S54 the legislature does not have the power to remove the individuals that it appoints so it does in that sense it does not have ongoing control over the individual who is on the cannabis control board another thing to note is that the reality of our current statutory regime in Vermont is that the governor does not always have complete control over board that perform very important functions for example the Green Mountain Care Board is one where members can only be removed for cause which means that if the governor disagrees with the or doesn't like the performance of an individual on the board or disagrees with their policy priorities that is not sufficient reason to remove that person it's a for cause which means the person has done some type of wrongdoing and so the governor does not currently have the ability to fully control every entity and impose the governor's policy priorities on every entity that exercises executive functions in the state another example would be the public utilities commission where members are can only be removed for cause so that's a couple I just want to that's sort of some background some about how things how this statute proposes to set things up and how things currently work in Vermont to lay the groundwork around what it means to control the actions of pieces of the executive branch and the extent to which that happens right now so the governor's council is completely correct there is no Vermont case that answers the question that we need to answer which is kind of legislative point an official who performs an executive function as I mentioned a moment ago so what the court is likely to do when it's presented with these problems of not having a relevant case is to look to other jurisdictions that may have relevant case law one jurisdiction that our state Supreme Court might look to is the federal government however for a number of reasons the federal precedent in federal constitution is not instructive in this instance it is it does not control the case it's a couple reasons for that one the US Supreme Court has ruled very clearly that the separation of powers regime and that is relevant to the federal government does not apply to the state so the federal constitution does not control any state's analysis of its own governmental separation of powers decisions and secondly there are key difference between the federal constitution and the state constitution the federal constitution makes it very clear that the president has the power to make executive branch appointments in does not grant the legislative federal legislature congress the power to make executive branch appointments our constitution by contrast explicitly does allow for appointments to be made by somebody other than these executive where provided by law and it's also important to note here that unlike the federal system our legislature has essentially unfettered police power it can unless it's contrary to the constitution our legislature has the power to make laws in Congress they are a legislature of enumerated powers specified by the constitution so they can't make laws about just anything they are limited by what the constitution says they may do our legislature is only limited by what the constitution says they may not do which is a significant difference so federal law does not help us here we have to look to other jurisdictions the other jurisdictions our Supreme Court may look to our other states of course I want to go back and note that our Supreme Court has even though they haven't answered this specific question that we need to answer today they have had general in other contexts they have talked about separation of powers and the way that they talk about it is actually quite similar to other states the way other state Supreme Courts have talked about so I'll read you a brief quote from the Vermont Supreme Court and this is actually from the same case the governor's council cited and I'll return to that case towards the end of my remarks here the focus of a separation of powers inquiry is not whether one branch of government is exercising certain powers that may in some way pertain to another branch but whether the power exercise so encroaches upon another branch's power as to usurp from that branch it's constitutionally defined function so the Vermont Supreme Court and as we'll see other state Supreme Courts facing similar language and similar differences in their between their constitutions in the federal constitution we frequently rule that it is not a clear dividing line between the branches of government and just as a practical matter we understand in the modern era we have an administrative state where we have executive branch agencies who are making quasi rules and there's a there as a practice as a matter of practical governance we have decided in the courts have accepted that there is going to be crossover in terms of what we think of as classically judicial functions classically legislative functions and classically executive functions some other states that have had that have faced similar question again we're asking can a legislature appoint an official performs an executive function I keep returning to that because when we're trying to figure out legal questions we are really trying to figure out the most analog we're trying to use the most analogous cases in order to understand what our Supreme Court might do a Connecticut Supreme Court decision from 2000 face the question of whether in a situation where four of five elections commissioners were appointed by the legislature and one was appointed by the governor so similar to here you had a majority of the commission appointed by the legislature and only one of the commissioners appointed by the legislature I'm sorry appointed by the governor in that instance the Connecticut Supreme Court said this is not a separation of powers issue they pointed to the differences between the state and federal constitutions and they pointed to the reality that the Connecticut Constitution they couldn't show that the appointment power was the exclusive province of the governor the plaintiffs in that case the people saying that the statute was unconstitutional or trying to make that argument could not make the argument that Connecticut forbid the legislature from making these appointments again Connecticut has a similar scheme to what we have where there is a distinct difference where the law doesn't look the Constitution contemplates that there can be something other than governor appointments and using language similar to our Supreme Court they found that there is no assumption of power that lies exclusively under the control of another branch and there was no significant interference with the orderly conduct of the essential functions of another branch again that's the Connecticut Supreme Court weighing in on whether the legislature is allowed upon a point four out of five of elections commissioners which are I would note a commission that has significant authority in terms of core democratic functions making sure that they're free and fair elections in the state another case that's quite instructive for the current for our case actually comes from California something called the California Coastal Commission which is a very important powerful commission in California that deals with all kinds of development rights along coastal regions one third of the members of that commission were appointed by the governor one third are appointed by the speaker of the house and one third are appointed by the Senate Rules Committee again we see a similar set up to what we have here in Vermont once again the California Supreme Court ruled that because there's nothing in the California Constitution that grants exclusive authority to the governor to make appointments and similarly to Vermont the California legislature has full authority set sort of full authority plenary authority is what they call it full authority to make laws on any subject that it deems appropriate subject of course to the constitutional limits and there's not a enumerated authority like our federal constitution they and this is also important and quite relevant to S54 they also found that the legislature doesn't control the people if the legislature appoints and they found that precisely because the legislature did not have the power of removal they noted explicitly that if the legislature did have the power of removal in that case it would present a much closer question and there may be a separation of powers issue but like in this scheme presented by S54 there was not the power of removal and that difference was very important to helping them decide that there was no intrusion into the core executive function because the legislature couldn't control the actions of the people that are appointed another case that's relevant and I will don't worry I'm not going to go through every single case they found but I just want to know how many did you find. We have a number of others but I'll just do two more that were the most relevant and then just mention some other states quickly in Louisiana there is a case that decided on a board of ethics four of the five of those members of the board were appointed by the legislature one was appointed by the governor they talked explicitly about the issues that the governor's council brings up that the legislative branch cannot interfere with the executives constitutional duty to see that the laws are faithfully executed but even taking that into consideration they decided that once again it was important that the legislature did not have the power of removal and therefore did not control the appointees who are on that board found it constitutional and no separation of powers violation final case that I'll go into coming out of Kansas by way of the 10th circuit I won't go into the details as a certified case but anyway the Kansas Supreme Court decided that an ethics commission in which five of the appointees were go to gubernatorial appointees and six were legislative appointees so again majority legislative appointees decided that there was no usurpation of power such that one branch was subject to the coercive influence of another and again we see language similar to language that our Supreme Court has used in deciding when they talk about the separation of powers issues there's no usurpation of the executive branch by having this majority legislative appointees there are other states that have addressed the issue of whether the legislature can appoint executive officer or people who perform executive functions I should say those states include Arkansas Delaware Georgia South Carolina Tennessee there may be others I will acknowledge the committee that we did not have time to do a full 50 state survey we did the best we could and a fairly short period of time those cases do all find that it's constitutional for the legislature to point individuals who perform executive functions I will say that those cases are slightly less analogous they're not necessarily cases with the majority legislative appointees but they are still instructive for us it is the case there are some states that have come out the other way on this it's not a universal rule it doesn't appear to be universal rule that this is that Supreme Courts have found it allowable but we think based on our research so far and the reading the research that the other Supreme Courts have done into what is happening around the country it seems clear that it is a strong majority rule among states that have decided it so far that it is not an unconstitutional intrusion on the separation of powers to allow this type of legislative appointment for example in New Jersey for example which came out the other way it's a little different because their constitution explicitly forbids the legislature for banks such appointments we don't have a similar case or sorry similar provision taking a step back from all this what are some of the key takeaways from all of these cases some key takeaways are that virtually all of these cases distinguish the state constitutions the case law from federal acknowledge that there is more flexibility in the state system and again we have the same difference that these other states have in terms of differences between state federal it is not this positive that there is a constitutional provision it would in none of those cases I should say some of those cases that I mentioned had constitutional provision similar to ours some did not their separation of powers rely solely on a case law analysis but in the ones that did have a constitutional provision for separation of powers in none of those cases that was that dispositive again they showed separation of powers but what does that mean as a practical reality and they've looked at the facts of the statutory provision and decided that in provisions very similar to one proposed here there was no constitutional issue it also seems clear as a second big takeaway that the amount of control exercised over the individuals who are going to be occupying these roles is important at least in some of the cases and we believe it'll be important here without the power to remove that is a key difference is a key difference in both California and Louisiana and and that meant for those courts that the legislature was not exercising executive functions they were making an appointment for somebody who would then be exercising legislative functions there's also supreme a US Supreme Court case in which the power of removal was the key to measuring how much control a branch holds over somebody and we even though it that case wouldn't be binding on us the legal principle we think holds here as well the governor's council did mention in radio and I wanted to just briefly address that the question in that case was whether the judiciary's power was unconstitutionally served or expanded by the executive branch so it was a different question that was being asked by the court we're trying to figure out is the executive branches power you serve by the legislature there's three branches there's a number of different combinations of usurpations that might happen or unconstitutional intrusions on the separations of power in because it was judicial functions that that court was inquiring about not executive functions there were different considerations that the court had to go through and can they were considerations that would only be relevant to the judicial branch so for example the power of judicial review that's something that is really relevant to the judiciary they get the final say over interpreting the laws so they were thinking about that they were also thinking about whether the whether the statutory scheme would render a judicial opinion merely advisory which gets into a concept about the judiciary in our state and most but not all states are in federal government are only supposed to issue opinions about real cases and controversy and that's in order to prevent there from being a bleeding over a mixing of legislative and judicial authority the judiciary is only supposed to decide cases which are specific cases specific people with specific disputes not sort of issue general opinions about what the law might be in some unknown future case that's a very complicated and in-depth analysis that happens but the point being with NRADL they were addressing issues that are specific to judicial concerns not executive concerns and for that reason we believe that the Vermont Supreme Court in deciding a separation of powers issue would be unlikely to look to NRADL because the issues that were of concern would not be of concern in this case that is the outline of our analysis I hope I didn't bore you too much the but the analysis that we went through as I said we're looking for analogous cases we looked at other jurisdictions when there is none here and we do believe that the majority rule and the likely way of the supreme that our Supreme Court would rule would be to follow that majority rule especially given that we have cases in other states that are quite analogous to the situation presented by S54 and for that reason we think that there isn't a separation of powers issue and that our Supreme Court is unlikely to find one. So thank you David you mentioned something that I'm not sure I quite followed about removal and last year the governor vetoed a bill specifically over the provision that the governor could not the executive branch could not remove this person that worked within the administration. Does that change the dynamic if that's the issue because right now this executive director works solely for the board doesn't work for the governor so if the governor had issues with the executive director theoretically they could not remove that person. Does that change the potential look how courts would look at it. We say executive director you're referring to the cannabis control boards. Yes I'm sorry yes I think so the racial activities issue I think was slightly different than the one we have here. Here we are talking about a board that's exercising a combination of frankly some legislative authority some executive authority. As I understand the governor's issue and I didn't go back to look at this so I would want to before I give you a definitive opinion I would want to reread the statute as it was passed by the legislature and veto. My understanding was that the governor's argument in that case was that this was a singular executive official who would be in the cabinet and who the governor could not. Right and I think that that is a different situation than one percent here I think the cannabis control board is more analogous to something like the Green Mountain care board of the public utilities commission where it is a body that has a number of different governmental functions. It does some things that are more like a legislative function some things that are more like an executive function and the legislature decided on those boards and commissions and they you may decide in this one that they that there are public policy reasons to give it a certain amount of independence and therefore the four cause limitation on removal is in place and so it's not quite the same thing as having an executive a singular executive officer is in the cabinet. So it's fair to say it's unclear. I think they're not similar situations. Okay so let me ask you this if cannabis S54 becomes enacted and an issue was brought forth a challenge was brought forth down the road would it make a difference if the governor signed the bill or it was enacted with a veto override in terms of how the court might look at it. I don't believe that a court has ever and I that's a bit that's a broad statement I don't think I don't think that a Vermont court has ever used a veto override as a reason to find something more likely to be lawful I don't think that would answer into their calculations. I'm the late person here so understood. Okay thank you. Bob? Can you hear the questions committee? Alright keeping a running tally we have now a third attorney. I just asked if that I didn't see that testimony online either. I can't hear it. It isn't very raw no form but I will work on laying it out a little bit and getting you a more copy of that. So now Betsy and Rask has been doing some work on this issue as well and the opportunity to ask do you have a box to put in there? So thank you Betsy Ann. Thank you Madam Chair. You need some extra space there because I'm going to spread out a little bit. Madam Chair thanks for giving me this time I'm just getting settled I pulled up behind me a memo that's posted on your website I do have hard copies for the governor's council for the Attorney General's office as well it's also posted online for anybody else. For the record Betsy Ann Rask and the legislative council. Thank you. I just want to start out first by saying thank you to the governor's council and to the Attorney General's office for being here and for discussing this issue. It is an important issue and I appreciate that we're able to get this input from multiple parties. I'm just going to recap a lot first of what you've already heard to recap you've got S54 as past Senate it would create a cannabis control board as specifically an independent entity within the executive branch under the bill is passed the Senate it's a three-member board consisting of one governor appointee one House appointee and one Senate appointee and specifically a board member could only be removed for cause by the remaining members in accordance with our Administrative Procedure Act I had stated in the memo it was stated again today the administration's position is that this board with two legislative appointees and one gubernatorial appointee is a clear usurpation of executive power in violation of the Vermont Constitution and to state explicitly the Office of Legislative Council does not agree with this opinion our opinion from our office is that this board structure does conform to the separation of powers requirement our opinion is based on applicable case law from the Supreme Court Vermont which is provided in the initial scoby throughout this memo specifically Vermont Supreme Court case law regarding separation of powers and also instructive case law from the U.S. Supreme Court and other states so this memo that we'll review with you summarizes the basis for our office's opinion including those legal authorities it provides an overview of Vermont separation of powers requirement and of each branch's power and with that information analyzes the constitutionality of the proposed cannabis control board before I move on I just want to say that I'm happy that we're having this conversation today about separation of powers this has been an issue that's been raised in S54 but also recently in other contexts for example on Tuesday I was in a Senate committee which was discussing adding two legislative appointees to proposed 15 member executive branch board an official from one of the administration's departments was asked for the administration's opinion on the proposal to add to legislative appointees and the official stated that the administration did not support the proposal because quote due to separation of powers and quote assertions that the legislative branch was unconstitutionally usurping the power of the executive branch in violation of separation of powers were also raised in at least two veto messages in 2018 and I know those assertions also are being made in other committee contexts so it's good we're having this conversation today in house gov ops because you are the committee of jurisdiction on separation of powers as the committee on government operations and we've already discussed this issue in regard to separation of powers in each branch's power in your introduction to government operations that we did beginning this session we went through that whole memo that I put together for you but still posted online it contains lots more information than what I provided in this memo to you today this is a truncated version but it's going to highlight the main issues but to reemphasize this is an important discussion to have because it does go to the heart of constitutional governance specifically these assertions about limitations on the scope of legislative power are challenges to your legislative authority to enact laws that set the policy for the state which is your constitutional power the legislative branch is the lawmaking branch by the policy that you set forth in the laws you enact the structure of this board as it's currently presented is a policy decision not a constitutional decision in our office's position you're considering the idea of whether to add two more executive branch appointees I'm gonna focus on the issue of majority legislative appointees to executive branch but these are policy decisions for you to make this is what you do you talk about policy I'm not here to talk about policy I'm here to make sure that you're aware of the scope of your legislative authority so that you know that you have the constitutional authority to make these policy decisions so what I'm gonna do this morning is review separation of powers overall and then specifically specifically applied to the provisions of s54 so first as we've done before what have we said when we're talking about constitutional issues you've got to take it from the top starting with the US Constitution but as we've already heard and our office agrees federal law does not apply the US Supreme Court has held that the US Constitution does not contain requirements regarding how a state is to a portion power among its three branches and also that weather and the what extent a state should have a separation of powers among its branches is an issue within the state's control so this is a question of what our Vermont Constitution requires so we're going to focus on our Constitution and as already stated our Constitution does provide a separation of powers requirement it's that fourth and chapter two section five of our Vermont Constitution it requires that there be a separation of powers among the three branches so that they shall be separate and distinct so that neither shall exercise the powers properly belonging to the others and as already quoted to summarize how the Vermont Supreme Court has captured our three branches powers is to say briefly stated the legislative power is the one that formulates and enacts the laws the executive power enforces them and the judicial power interprets and implies them so legislative branch legislates the laws you enact which contain the policy that you decide executive branch executes those laws and the judicial branch adjudicates challenges to them but the court has said that overlapping powers are permitted because our Vermont Supreme Court has said that the separation of powers requirement does not contemplate an absolute division of authority among the three branches such that each branch is hermetically sealed from the others and the Supreme Court stated that due to the practical realities of government and because there are many functions and powers that can't be easily defined and classified it will apply a relatively forgiving standard to separation of powers complaints claims that are tolerant of separation or overlapping institutional arrangements our court has stated that it must construe the constitutional command of separation of powers consistent with efficient and effective government structures that are able to respond to the complex challenges and problems faced by today's state government the court also has provided a test of what constitutes a separation of powers violation first the power that's being exercised has to be somehow incidental to the discharge of the functions of the branch exercising them and that thereafter the focus of a separation powers inquiries not whether one branch is exercising certain powers that may in some way pertain to another branch but whether the powers so exercise encroaches upon another branches power so as to you serve from that branch it's constitutionally defined function so I've been talking about a Vermont Supreme Court case law why do I keep going back to the Vermont Supreme Court because in the checks and balances of our three branches it's the province of the courts to decide whether Vermont's laws comply with the state Constitution it's the function of our courts to maintain constitutional government and the Supreme Court of Vermont is the final interpreter of the Vermont Constitution so I'm providing legal opinions here today the executive branch is providing legal opinions here today but only the judicial branch can make binding constitutional adjudications but what I've done here in this memo is used their case law to support the analysis of the constitutionality of S54 our court has said that when it's reviewing laws enacted by the General Assembly it's not going to strike them down due to disagreeing with the policy the court has said it's not for the court to pass upon the propriety of legislative election to exercise its regulatory power nor to question the wisdom of it our function is only to determine whether or not the manner or its exercise meets constitutional standards and violates any fundamental rights the courts has said in another context that people don't get to have the court act as a super legislature to retry policy judgments you're the policy makers the court just determines whether your policy is constitutional and the court has also said that it presumes your statutes are constitutional when it's analyzing your exercise of your legislative authority it's presuming you acted constitutionally there is a presumption of constitutional purpose on the part of the legislature a presumption as strong perhaps as any that is not conclusive this has been stated repeatedly for example I've quoted a 2010 case where the court said we start by emphasizing that statutes are presumed to be constitutional in our presumed to be reasonable we have often observed that the proponent of a constitutional challenge has a very weighty burden to overcome and our courts won't hold that your laws are unconstitutional unless they clearly conflict with constitutional requirements and one of my favorite quotes from our monteprime court on this issue the court stated the efficient exercise of police power inherent in the people of the state through you is not to be frittered away by overnight speculations upon the distribution of powers of government every presumption is to be made in favor of the constitutionality of an act of a legislature and it will not be declared unconstitutional without clear and irrefragable evidence that infringes the paramount law isn't that beautiful language i was wondering how you lose to you so let's talk about you the legislative branch you have supreme legislative power that's restricted only by the constitution as the general assembly the two chambers hold supreme legislative power it includes the power to prepare bills and enact them in the law and the supreme court describes you as the law making branch of government however you don't have any power to add to alter abolish or infringe any part of the mont constitution in other words the only thing that limits the general assembly's authority is the constitution the constitution is not a grant of power to the legislature it's a limit on your powers your power is practically absolute except for constitutional limitations and you exercise that power through your police power your policy making power there's a provision in our constitution that gives the police power to the people of the state through their legal representatives and they have the sole inherent and exclusive right of governing and regulating the internal police the same when the vermont supreme court has construed the police power it is stated that subject to constitutional limitations a state legislature is authorized to pass measures for the general welfare of this people the state and the exercise of the police power and is itself the judge of the necessity or expediency of the means adopted expediency meaning what works what is pragmatic what's useful in regard to the police power the constitution clearly empowered the legislature to pass such laws as in its discretion it might judge would be for the common benefit of the people of this state that's a summary let's turn to the executive power executive power means carrying out the laws it's the conferred authority to execute the law that you enact and aside from the any constitutional authority given to a specific executive branch entity it's the general assembly that determines the executive branch entities to which it will confer authority what laws they must execute and how they must be executed so for example the vermont supreme court stated that our prior public service commission has only such powers as are expressly conferred upon it by the legislature together with such incidental powers expressly granted or necessarily implied as are necessary to fulfill the powers granted and it's merely an administrative board created by the state for carrying into effect the will of this state as expressed by its legislation the commission therefore is the class as an agency of the legislature you set the policy and how you want the law to be through the text of the bills that you enact in the law just to point out the obvious we have extreme whatever you call legislative power but only if something is enacted by two-thirds if the administrative branch does not the executive branch the governor specifically the governors are supreme executive power it's a check on your power right yes the governor can agree and sign so we have different attorneys with different opinions on whether this is constitutional or not but the political reality is their opinion counts for two-thirds of the legislative i can't speak to that okay yes we have limits on ours you have you have to consider these policy implications i'm here just to talk about the constitutionality and you're doing a great job policy is your business you make this interesting good though it's kind of a dull subject no it's not a dull subject it's not a dull subject um i want to emphasize something that's already been stated um just mentioned uh that the vermont constitution names the governor the supreme executive power the governor has great power compared to the other executive branch entities the governor gets to approve or veto or allow laws go to go into effect without his or her signature it's a check other entities don't have that but the vermont constitution also created in the executive branch four other separately elected statewide officers our lieutenant governor our treasurer our secretary of state and our auditor of accounts and also created district elected states attorneys and sheriffs none of them are under the control of the governor those are separate entities also you have created by statute the separately elected statewide office of attorney general that's a statutory office and also you've created executive branch entities that are to be independent from any other entities such as the green mountain care board has already been mentioned and the state ethics commission s54 would likewise create a new independent cannabis control board within the executive branch like the green mountain care board because there are multiple separate independent executive branch officers and entities that are not on the governor's control the vermont governor's supreme executive power is distinguishable from the executive power in our federal government which by us constitution article two section one clause one vests executive power in the president to quote the executive power shall be vested in a president of the united states of america that is not true of the vermont constitution similarly unlike us constitution article two section two clause two which provides the president with the power to appoint all major offices of the united states with the advice and consent of the us senate the vermont constitution provides to the governor the limited authority to appoint officers except where provision is or shall be otherwise made by law or this frame of government this means that the governor has the power to appoint officers accepted by the laws that you enact or by the vermont constitution you control the governor's appointment authority unlike the president's appointment authority so therefore us supreme court case law regarding the scope of presidential power is not on point to the scope of vermont's gubernatorial power and i needed to emphasize this point here because of the prior separation of powers claims the governor has made so for example we've already talked about that veto message of 2018 s 281 the veto of the mitigation of systemic racism bill the governor's veto message i linked to it provided the governor was vetoing the bill because it would not permit the governor to remove an official that the bill gave him the authority to appoint the governor stated that the removal power incidental to the appointment power is essential for a governor to take care that the laws be faithfully executed in accordance with the constitution there was no citation for where this quote came from but i believe it seems to have come from us supreme court case law such as mires v us which i've cited here which held that the president's power of removal which was was incidental to his power of appointment and was necessary to take for the president to take take care of the laws be faithfully executed but this cannot be true for the governor vermont who shares executive ranch authority was separately elected officers and separate statutorily created independent entities that are not under the governor's control and are specifically created to not be under anybody else's control moreover the vermont constitution does not provide the governor with specific removal authority so accordingly the vermont supreme court has recognized the general assembly's ability to control governor removal authority in the mcfeeders v parker case from 1943 the vermont supreme court adjudicated a challenge to the governor's authority to remove members of the public service commission who the governor had appointed with the vice and consent of the senate the court stated whether the governor should have this power of removal is for the legislature to decide we are not concerned with the expediency of the law again the usefulness the pragmatic nature of the law the policy decision not a constitutional decision the policy behind it and statute is in line with this vermont supreme court holding its statute that generally provides the governor with discretionary removal authority the people that the governor appoints there are two provisions in title three three bsa section 258 in 2004 that say except as otherwise provided by law the governor gets to remove at his or her discretion the people that the governor appoints but that's a statutory authority and it can be limited by statute as well and i provided as an example for example for example um if you turn to the public utility commission statute 30 bsa section 3e it requires the governor to appoint the members of the public utility commission but it says can't be removed in the governor's discretion there has to be cause for the governor to remove puc members i also want to point out the green mountain care board statue 18 bsa 93 74 b4 and the related draft rules that statute provides that green mountain care board members are appointed by the governor but specifically members of the board may be removed for only for cause and the board shall adopt rules pursuant to the administrative procedure act to define the basis and process for removal this statute does not give the governor the authority to remove green mountain care board members the green mountain care board is working on its draft rules i've provided them here they're linked in this memo the green mountain care board draft rules would provide that a member of the green mountain care board may be removed for cause by a majority vote of the participating members of the green mountain care board so like s54 like the state ethics commission the board members themselves would be the ones that are able to remove themselves there's a one power appointment and a separate power of removal under the green mountain care board which is created as an independent entity the members themselves have the power of removal over themselves to keep each other in check they're not accountable to the governor in that way because they're created to be independent and separate so that's a summary of separation of powers and the three branches of powers um so then what this memo does is just apply that analysis to the proposal on s54 and again to emphasize i haven't included all the details of all the powers you can go back to your introduction of the deluxe document if you want to read more about it it's included in this analysis but first one thing that i consider is that the vermont constitution does not state that an executive branch entity cannot be comprised of majority of legislative appointees it's just not an issue that's addressed in the vermont constitution moreover there's no known vermont supreme court case law that addresses whether such an executive branch entity violates separation of powers therefore because the only thing that limits the general assembly's authorities a constitutional provision because the vermont supreme court will apply a relatively forgiving standard to a separation of powers claim that is tolerant of over overlapping institutional arrangements and because the vermont supreme court is not indicated otherwise we must presume that s54's board structure is constitutionally permissible since there's no clear and irrefragable evidence to the contrary um that's under our vermont analysis we can look to other case law that is instructive to help us with this analysis for example it's already been mentioned the us supreme court case bowser v sinar while federal law does not control our separation of powers requirement that case is instructive from the us supreme court in that case the us supreme court quoted a lower district court which held that once an officer is appointed it is only the authority that can remove him and not the authority that appointed him that he must fear and in the performance of his functions obey and s54 adheres to this principle in maintaining the cannabis control board status as an independent entity within the executive branch a board member may be removed only for cause by the remaining board members in accordance with the administrative procedure act and just to note the same principles applied to those other independent vermont executive branch entities including green mountain care board and the state ethics commission also i think this case law has already been mentioned instructive case law from other states there are a few um that i've just provided here for reference we've got one from kansas that was already mentioned by the ag's office where the tenth circuit um certified to the kansas supreme court the question of whether uh the governmental ethics commission was six legislative appointees and five humanitarian appointees violated separation of powers they held that it did not in a 1990 case out of louisiana the supreme court louisiana have held a five member board of ethics for elected officials within the executive branch which contained four legislative appointees and one curatorial one and then that california case that you've already heard about where the supreme court california upheld the california coastal commission within the executive branch which contained two thirds legislative appointees and one third gubernatorial appointees i know you're running out of time the last thing um that i'm going to mention here is i've just provided for reference some examples of other vermont executive branch entities that currently have mixed appointments it's not an exhaustive list actually michelle just mentioned me though but here's another one that we can add um but here's a list we've got for example the 16 member commission on women eight gubernatorial appointments eight legislative appointments we've got the five member state ethics commission it's an executive branch entity it contains no executive branch appointments one member is appointed by the chief justice and four members are appointed by private entities it's exercising executive powers we've got the five member racial equity advisory panel it contains no majority branch appointees two are legislative appointees one's a chief justice appointee one's a gubernatorial appointee and one's a human rights commission appointee we've also got the 17 member vermont working lands enterprise board which contains seven gubernatorial appointees and 10 legislative appointees and then another example is the seven member clean energy development board which contains three members appointed by the commissioner of public service and four legislative appointees that is our analysis madam chair happy to work with you further as you navigate this question here for any questions on this issue now or later thank you questions for Betsy yeah so committee we have about 25 minutes 20 minutes before we have a scheduled lunch break because we need to come back here at 12 30 since that was the only time we could snag a little bit of Michael O'Grady's time so he and Betsy Anne will be back with us at 12 30 but I thought it would be useful for us to spend this time having a committee discussion around the question at hand which is around the appointment of board members and I will open it up to folks who either have questions for the folks who presented to us or who pose within the group and those of you who have a join up in front of you will be very patient I'm sure not asking questions first I can't miss this I'm sorry I see him he's on the edge of his seat whoops I forgot your camera right for the camera didn't take my advice so that's a good idea to have dessert before lunch Bob and then Mike I uh still lean toward five being a better number than three that I think deferring my very respect for everyone that's presented I think we're attritionally prescribed or it seems like we're we're on the edge of repeating history again a bill veto because of an appointment that's deemed unconstitutional by the governor and seems to be a good deal of other evidence to the contrary in the bottom line I just wonder if this actually weakens the governor's office if they keep insisting on one thing and the courts find another I don't know but we're going to have to go to the courts to establish that but in the end it seems to weaken the governor's office making assertions such as this it seems pretty clear though from what our council just put forward like Betsy here great job thank you for the record yeah share my opinion Betsy did a great job and as our lawyer I feel we're well served and there seems to be that especially clear line but I heard that the governor's council's using this precedent was U.S. law and what seems pretty clear is that well water here so I'm I'm clear that we can go ahead or should go ahead in the same way we're on pretty solid legal footing as far as the makeup of the board that's the question I think five is a good number Jim so at the end of the day the governor's office opinion does matter unless we're going to pass something with two-thirds so I don't think we can ignore it and I would suggest out there even though so far the board structure is not what I would have envisioned I would suggest trying to make it better by the five of given three of the five appointees from the governor's office and that all appointees perhaps maybe advice in consent of the senate if that helped maybe that complicates it I don't know I just throw that out there as a way to move forward or I can be an island of one again and stay out this end of the table but I'm just I'm trying to help you get to a path forward and I may not be on the right path but I'm trying to help you get there I understand what Jim's coming from but I think one of the things was that we had the authority to do in drafting this is to specify what those five members would have to have for credentials to be in there and I think if we went the way Jim's talking we have to make sure that we do a good job of specifying what those credentials are and what we're looking for each board member to be I thought we had sort of deviated away from that a little bit in that by having the five member board they would have access to a fairly diverse advisory board that would have the areas of expertise that they may need in a particular time was what I sort of thought we wound up bad more. You know there are many areas that I'd be willing to compromise on within S54 however when there's an issue of the power of the legislature especially when it seems to be continually challenged as to our appointment authority for boards that's something I don't want to compromise on because that's actually giving up legislative power that's in the Vermont Constitution and I feel strongly that this isn't something I can compromise on because I think you know both the Attorney General's office and legislative council put forth excellent arguments as to what our legislative power is and I don't think in this instance we were violating it and I would be concerned about making a compromise and giving up for legislative power that we clearly have under the Vermont Constitution. On policy issues as Betsy Ann has reminded us repeatedly and Tucker and Michelle I mean that's up to us to decide and that's up to us to decide when to compromise but when it comes to a legal issue like this especially one that involves the power of the legislature I would be have a I could not compromise. Tim? If I would just counter to that I respect my representative again to say however the bill last year we did compromise on that in the end by passing a new bill that satisfied the governor's concerns on the appointment process to get a bill done so if the choice is between getting a bill done or not getting a bill done that's a choice we make on every part of it. Other thoughts committee? Bob and then Warren. Follow up on John's point to make the fine line between compromise and work that's something I think for the future legislative bodies we need. Warren. I'm delighted to have such wonderful colleagues on this committee and that includes everybody. In this particular case I'm with John and I appreciate it. Bob's and Anna's compromise versus erosion. I think the power of precedent is very strong and I can't see why we wouldn't follow through with what we think is the best structure for standing up this commission so I've learned a lot on this one for sure. I personally prefer a five member board. I think there's plenty plenty for the board to do. First thing I'd like to do, having five years that much more expertise in terms of this one board but then they can that if that does occur that might have been easier because passing will go out major, major, major issues what I am for a five years. So Michelle do you have the ability to pull up the language that the committee kind of decided upon with respect to the five person board and who appoints the five members as as the committee looked at on Friday afternoon I think you extracted that from? Right, I started on your committee amendments. You could go down to my office and send it up. No that's quite alright. But it was essentially because as you already discussed so it would be what you agreed to see in your next draft for is that it would be a five person board. We would have the governor still appointing the chair. You would have one appointment by the speaker, one by the committee on committees, one by the treasurer and one by the attorney general. We decided not to require specific backgrounds for those particular appointments but that you did want to require the board to to establish an advisory committee that would encompass some of the expertise that was listed in the way that the S-54 came over from the Senate so that you would you would have representatives there on such social equity issues some you know on finance and management and regulatory compliance things like that. So Jim has made an informal proposal that that we change the appointing authority for two of those members. The two new members. So that so that the governor would have a total of three appointees. So I think we need to have a committee vote on that. We can just do a show of hands. I don't think we need a roll call. So would all those in favor of changing the the appointing authority for the two additional board members will be able to vote yes on that? Is there any other committee discussion on this question? The governor still appoints the chair. The governor appoints the chair in the construct that we conceived of on Friday afternoon in expanding it to a five person board the governor would still appoint the chair and the other four members would be appointed by four different entities. No just a comment. You know and if the governor has three appointees I probably could be convinced that that would be okay as a way to offer some balance. I'm just listen folks I'm just looking for some middle ground. I we're spending a lot of time on this issue a lot of time and we want to get it right but we can be high on principle and not get a bill done. So I just put it out here. I'm trying to help you get to a finish line. Sorry I appreciate that but I keep coming back to the point that John made which is that because this is not the first the first time we've heard this issue it is really important for us to take the time to consider a number of legal opinions we've now heard from the Attorney General's office from the governor's council and from our own legislative council and I think it's important that we make careful consideration about how we respond if there isn't somebody asserting that there is a separation of powers issue. So I'm just looking for a little clarification on is there a semi-motion on the table as far as sorry the two additional could you repeat that? So Jim had proposed that we give the governor a total of three appointments to the board as a compromise. And I would be also open to the board selecting the chair which could you know could be chosen by three people. I'd rather just give the governor the personally I'd rather just give the governor the ability to appoint the chair and the chair set the direction. So are we at the point where we have some agreement that it's going to be five member board or are we still probably reached a agreement? I thought we had that agreement on Friday afternoon. Yeah I'm not necessarily denying it. We haven't seen it in the bill language because we really haven't gotten through the our first walk through of the bill so I had asked Michelle to hold off on presenting us the revised language until after we've actually given her the whole bill to revise. Okay now I got it. No because I wish I would get your weight. So Jim to your point though about getting the bill across the finish line I mean you know it is more important that we hold true to what our legislative powers are than that we compromise in order to perhaps head off some sort of conflict down the road. I mean we have to I believe we have to do what we believe is right and and our legislative council gave what I thought was a pretty thorough opinion on this. Rob? I agree with most of your state of mind but I think that part of what we do here is compromise in this building and as much as I understand from a principal perspective there's a different opinion here. The third branch is fairly important in this process and if we really do want to get across the finish line this legislation is going to look differently getting there and then it's starting anyway and the intent is to get it there. You know there's one thing about compromising on a policy position I mean you know especially if the administration is opposed to something in the bill and they've identified policy issues such such as you know whether it's opt-in or opt-out you know highway safety roadside testing you know prevention I mean those are all policy issues I mean those are things that you know I hope we can work with the administration on but this is a different question and in some ways it is really a bipartisan or tripartisan question. I mean it comes down to the legislature's legal authority under the Vermont Constitution and by compromising here as Bob said you know we're starting to erode our authority under the Vermont Constitution and that concerns me especially because this is not the first attempt to do this. There are repeated efforts by the administration to usurp our power and that concerns me. I hear you my friend but I seem to recall that just this morning there were several boards where the examples were five if it's a 13 member board you know I think several from the legislative side and six were from the executive side. I mean there was a much more balance in that regard I believe from most if not all the boards but what we're talking about here isn't totally unique neither way. But you know we have no promise from the administration that they won't veto this bill based on a separation of powers argument. That's fair. Yeah I would argue that it isn't that the past performance is never an example. It does seem to be an argument it's coming on 20 more and more and as we defer and defer and defer I think that's again the court takes into consideration just to reiterate while we build a history for future legislatures of our women is to say a loss. Well I forget who said but the two bills that we're sort of talking about the one last year and then this one my recollection is is that they were quite different and the roles of the executive directors and things like that was very very different than what we're talking about today. Are we ready to decide any further discussion? So if you are in favor of Jim's proposal to to give the governor three appointments to a five-member board please raise your hand and if you are opposed Marcia I'll just point out too that in the in recent history the governor has been allowed to choose two positions that previously he or she had not and that would be the commissioner of liquor control and also the commissioner or secretary of education and that those two positions previously were appointed by their boards and now the governor ultimately has the decision to to appoint the final. I think liquor has to bring three candidates to the governor but the governor gets to decide which person actually will become the commissioner. I hear what's been said here and I appreciate your concerns about eroding and I also appreciate it's been an offer of compromise on whether there's another way we could compromise by suggesting two appointments for the governor. We can certainly discuss that. That sounds like another compromise to your compromise. Yeah and I would be very open to that. Believe me when I say it, I don't have any ownership on any of this. I'm trying to get to a place where we can make it otherwise we're just spinning our wheels. So and I appreciate Representative Marwicky's thought and I would support that. I would suggest if you were looking at the pointing that we talked about that maybe it's not the treasurer but we keep the attorney general from the law enforcement and as an impending and leave the others in place. Bob did you have something on that? That's what my question is, who gets cut from the puzzle? That's just my opinion. I don't have any ownership on that. I just think that would make the most sense. In response to what I thought was my committee. Yeah. In response to that in terms of comment that was tremendously important to me. What other words do you think? No doubt but law enforcement to me is perhaps a little bit more important and I think the the advisory commission board could be a good role for the financial end of the day. I wanted to agree with Jim about turning the attorney general would be that fifth point. One from the House, one from the Senate, one from the Attorney General's office. I'm not certain what I want to do about who appoints the chair. My preference would be to have this group of five decide one of themselves who would be the chair. Marcia, originally when the liquor control board was set up and they decided that they would choose the commissioner, it was to keep the governor away from the dirty business of selling liquor. So I guess I'd have to ask how does the governor's office view being involved in in the cannabis business with the governor being directly involved? Sounds like a great question, a good hallway question. I don't think that we have prepared the governor's office to come in and and answer that specific question although certainly if they would like to answer that on the record I would welcome them to do that. But just being mindful of the fact that I promised you an hour lunch break and we need to be back here at 11 30. 12 30 sorry yeah be back here four minutes ago. This time that we spent this morning was was really intended to be focused on whether we as the House Government Operations Committee have concerns about the separation of powers issues that have been brought to our attention. The policy questions of how many board members and who appoints them are separate from that and so I am happy to continue to have those policy conversations but over lunch reflect on the fact that what we were what we spent the last hour and a half looking at was separation of powers and whether we have the authority to appoint members to an independent cannabis control board. So I'll see you all at 12 30. Have a happy lunch. Get some fresh air of this. No in all reality the reason why we're meeting at 12 30 is because Michael O'Grady has a fairly tight schedule and so we are actually infringing on his to have a conversation. Now I understand that you would like to walk through with us so that we understand a little better about the rulemaking process and in the context of the timeline of the cannabis board promulgating rules and and pushing the go button. You would like to share with us your thoughts on that. Do you have supporting documents that you'd like to pull up or is this more of an open conversation? I think it's uh I'll walk you through it and I think it's kind of self-explanatory as I walk through it. I'm a visual learner so I just didn't know if you wanted us to look at the timeline and contemplate the timeline as laid out in S54. Well why don't you educate me first about the timeline for what's under S54 because it's my understanding that most of the operative provision is going to affect in July of 2019 if there is a requirement that the board be appointed by September of 2019 and that the board initiate rulemaking by October of 2019 and that by September of 2020 that the board start accepting applications. Is that correct? That sounds right. Here we go. And in that timeframe the board needs to hire an executive director and a consultant and an administrative assistant. Correct? So you're basically the board won't be in existence until September. You probably won't have staff until late October which is beyond the timeframe for when they are supposed to initiate rulemaking. And then rulemaking unless you specify that it's going to be through some expedited process. Rulemaking has specific timelines for when things must be done. And so the timeline that I'm looking at shows 11 months. So the the fastest that you can make it through rulemaking by doing everything exactly in the minimum timeframe and going from the subsequent step to the next step on the exact day that the subsequent step ended takes four and a half months. And that's only if you have one public hearing and you don't have to respond to public comment. If you have more than one public hearing and you have to respond to public comment and the public comment is substantial you're talking about 10 months and that's how long it would take to do rulemaking. And you won't have a board in place to do rulemaking and and I should step back. That's 10 months once you file a reasonably complete version of the rules with ICAR. So you file a reasonably complete version of the rules with ICAR and 10 months later it will be affected. But do you have this board going into place in September? They won't have staff. They won't have their consultant. They won't have a reasonably complete draft rule. What if we did an expedited rule process? How much would that shorten that? And are they related to that? What's the precedent on when we do expedited rulemaking? So there's a default expedited rulemaking in statute called emergency rule. An emergency rule for specified public health significant emergency. Now there's one other criteria I'm forgetting off the top of my head. You can go to rulemaking immediately. That would be something without the legislature saying that the Department of Health had an issue that came up. They could do it if it was a public health right. Immediately you go to rule, you give it to LCAR. LCAR's got 15 days to approve an emergency rule and then it's an effect for 180 days. In the past when you've wanted a rule to go into effect quickly you have told an agency to use that rulemaking process and then determine or specified how long that that rule would be in effect for. Because you could not withstand the fact that was that it has a default of 180 days and it would remain in effect for however long you specify it. There have been other instances where you have set up a separate expedited rulemaking section specific to the rule that you are addressing. You did it with the PUC rules on wind and you could do something similar for that. What you would do really depends on what you wanted to do. How much involvement, how much public hearing, how much time between filings. That would all be something that you have in the past specified in an expedited rulemaking and you could specify with this. So my point is being that you probably won't have staff to draft a rule until October. That time to draft the rule to a point where you could even go to an expedited rulemaking is probably going to take a couple of months. Then you have to enter whatever rulemaking process you want to enter. If it's the regular one it's going to take you five to ten months. Most likely ten because you're probably going to have want to have more than one public hearing and then you're beyond the September 2028. If you go to an expedited rulemaking you're still going to be coming up against that September 2028 and it's important because the rulemaking includes things like eligibility, the application form, requirements for the applicant to information to provide. So the the rule is going to drive what that application looks like in September 2020. I just think you're putting the board in a very difficult position with existing rulemaking time. Any other questions for? So we talked about this last week and we then what's the kind of came out I don't want to speak for everybody but what's the harm in giving them a really tight I mean make them earned their keep and then they can come back in January and say uncle we need a little bit more time. I'm just I'm being the devil's advocate here but what's the stop us from doing that? When are they going to request time? Because you won't be in session, right? If they determine that they need more time in May or June of next year you won't be able to give them more time. They're going to have to ask for time only a couple of months after they've been appointed and their staff has been hired. See what I'm saying? It wasn't my idea. Was it your idea? These are all policy considerations that we can take action on if we need to. So if you look at the timeline that is up on the screen right now the application this is specifying that the application period for cultivators is to begin September 15th of 2020 and as you can see from the fourth line down the rulemaking process best case scenario beginning in November of 2019 would have to go almost flawlessly in order for the board to be ready to accept applications on September 15th. Right and so what you don't have any here is they actually draft a draft rule and how long is that going to take because most rules before they go to the rulemaking process they go through an informal process of you draft it up you have some of the interested parties review it provide input and correct me if i'm wrong but i think there's going to be a lot of interested parties here. And so will the board in that time frame will they engage those interested parties will there be some iterations that that before they even get to the pre-filing with iCAR. But isn't that the point I mean there's a lot of work already done out there in different states and you know there may be something to say in Massachusetts or Washington state that's you know this looks like it fits and we can start from there in our preliminaries rather than starting from ground zero and if it doesn't and I agree with you it's probably going to take longer than a couple months to even get to that point but what's the stop them in January of coming to us and saying you know could you push this out a couple more months. I mean there's nothing to stop them from coming to you in January in that time frame um I I just I know you don't want to set it up I just want to let you know that the it's time if if you only have one hearing in this time frame and you don't have to respond to comment because comment is one of the big things that takes a lot of time for the agency so they got they have a mandate that they have to respond to each comment and and that can take a lot of time if there's a lot of a significant number of comments and so you're you're kind of you're putting them in a difficult time situation but it's part of the executive branch um sorry I get out of line sometimes they I realize it's not here I know I know I know I was also told that you might want to talk to me about how this interrelates with the hemp program and and potentially whether or not people that grow hemp um can grow marijuana as well yeah I mean the plant being virtually um it it does make me wonder if there if the smallest scale cultivator license might not look very similar so the the 2018 federal farm bill delisted hemp as a controlled substance but defined hemp as cannabis with a dry weight basis of .3 THC in order for a state to operate a program they have to get USDA approval and that state program has to meet some minimum requirements there are two enforcement provisions that are minimum requirements of the state hemp program one of which is if you negligibly produce hemp with higher than a .3 THC level you may be subject to a penalty and if you do that three times in five years you are ineligible you are ineligible to participate in your state's hemp program for five years in addition if you grow hemp with more than .3 THC with a culpable state greater than negligence I don't know what that means but something more than negligence if you do that they refer you to the U.S. Attorney General for prosecution for cultivation and possession of a controlled substance so and if you're convicted of that that's a felony and you are ineligible to participate in the state hemp program for 10 years if you have been convicted of a felony after the federal farm bill 2018 so co-growing co-registration would almost certainly lead to the hemp participant being excluded from the program at some point so I can understand that as a risk to somebody who might be currently looking at growing hemp and possibly getting into the cannabis industry but how is this playing out in other states that have legalized recreational use well that's that's that's the that's the magic question right is that those growers are cultivated there are growers cultivating both in those states because it's allowed in those states right and and they're either processing the hemp for CBD or that or they're they're taking the THC that they can get out of the hemp and using it in in other marijuana products it very likely is a violation of of the controls the federal control substance is active where the the attorney general is is not exercising enforcement discretion or is exercising enforcement so in those states there is a state-level hemp program right and cultivators there's a state hemp program but it has not yet been approved by USDA and the 2018 federal farm system because that those rules have not gone into effect and won't go into effect until at the very earliest november of this year and it's probably going to be later than that so there's going to end this this might be of interest to those people in those states that are growing both you have to identify where your fields are when you apply for the state hemp program and you have to let the regulatory agency come to your field and inspect them so there may be a disincentive for people who are co-growing in other states to co-grow once the state hemp program the rules for state hemp programs with all that said there's a lot of this still up in the air because USDA has not issued its rules the rules purportedly allow for the cultivation of hemp products but they don't define what a hemp product is so people are naturally saying well anything produced from hemp is is a hemp product and that's that's a rational argument conclusion but it is not certain because USDA has not yet defined that and we are progressing with us a bill in s58 but to kind of short circuit some of these questions we're defining hemp as something that has the federally allowable THC level because part of the discussion is that they may allow a different testing method that will result in a higher THC for hemp as an equivalent to the .3 driveway basis and we don't want to have to amend our statute or rule again to conform because we conform the state hemp program three times in the last five years Michael back to the timeline for a minute absolutely would it make sense I mean they Michael does bring up a quick point about the rulemaking process I'm wondering if we should on some of that back it up either three months or and they still have the ability next spring to come to us and say it's still too tight but not not delaying it unduly but yet set it up so that there's a fair chance that and is that make sense seems reasonable we can have a committee discussion on that so Michael what would be your recommendation for having a reasonable timeline you know in a normal situation I would ask the agency that was directed how long do you think it's going to take you but that agency hasn't been established so I think with something of this nature and the multiple interested parties it's going to take at least three months to come up with a draft rule that could be submitted to Icon so January 15th three months from the date of fire of the executive director and we're bringing up to the the new year and you at least gave an opportunity to draft draft that rule and then enter into a process where you could have the 10 full months of rulemaking it's still going to be tight but you it's viable I just wanted to remind all about what else they're doing in in those first few months which is developing the tiers for all five different types of licenses and figuring out the market what those tiers should be how much should be grown what the fees should be for each application for the annual fee for the renewal fee anything if you do if you go with the idea of the prior approval for the advertising you know fees like separate fees like that we've got to come into the general assembly and in January with the recommendation for those fees they also have to come in in January to you with the year two fiscal year to the second and third fiscal year build out for positions and for provisions so just just to some things that aren't really I mean I mentioned it there in January 15th but just so you can keep track of that because I think there's a few other things that in the senate proposal there's three other things they're still supposed to come back to in January and I think you guys are looking at kind of maybe pumping those out a little bit already but just so you it's not just rulemaking in those in those first few months so we can have a discussion about this in committee but are there any other questions that you would like to ask Michael Grady while we have him and I'll bring visual material next time all right we'll be counting on it thank you so committee the floor belts will start bringing soon we have a bill on the floor John has a bill on the floor and we will sounds like there will be some with him in spirit as he presents that bill so we don't want to be late for the floor but if there are thoughts on the timeline let's have five minutes of discussion before we head to the floor off the wall certainly in terms of moderating things when we're on a session is there any other body who could best that power and if necessary get into that kind of stuff not the terms of extension of rulemaking timelines as far as I know they have to act on fiscal matters. Michelle, thoughts on that? I don't think so I would also just generally as your lawyer recommend that you be delegating any more from yourself oh really yeah I mean I feel a little particularly strong on that point after this morning's discussion I thought it was helpful to get a reality check as to what we should be able to expect and we may need to pull the things to be pragmatic. Yeah I mean I think there's a strong point to be made that we don't want to set this new cannabis control board up for failure on day one and and given that the task that they have is not it's not one of the most straightforward rulemaking tasks that we might set an agency out to do giving them ample time to to do it and do it well I think makes a lot of sense. Doorbell. They're playing our song.