This is the first of a series of posts that will feature bills introduced in the current session of the Vermont legislature that have implications for how well or poorly state bureaucracy may serve the public.

The first bill to watch is H. 66, AN ACT RELATING TO INTERNET PUBLICATION OF STATE AGENCY RULES.  Here is the “Statement of purpose”:

This bill proposes to require all state agencies to publish proposed rules, final proposed rules, and adopted rules on their internet websites and to require the secretary of state to publish all adopted rules of state agencies on the internet in a comprehensive and searchable database.

This will be a good thing, of course, insofar as it will contribute to transparency in bureaucracies.

Of its own, however, I don’t see that it would have much effect as far as increasing the likelihood that bureaucracies will actually operate according to their rules.  For that to happen, there would need to be some means of intervention to require an agency to live by its rules, and for that to happen there would need to be a means of holding agencies and their personnel accountable when they don’t operate according to their rules.

For instance, consider the following from the rules governing psychologists (and taken from the Office of Professional Regulation website):

1.5 The Rules
The Board is authorized to make these rules under 26 V.S.A.§ 3009a. They have the effect of law and govern Board proceedings.
1.6 Complaint Procedure
The Board follows the Office procedure for receiving complaints, conducting investigations, and resolving charges of unprofessional conduct. Copies of the procedure are available from the Office.

Ah, copies of the procedures.  During my experience with OPR, I and two friends of mine each requested copies of OPR procedures, each several months apart.  What we each were told was that copies were not then available as the procedures were in the process of being revised.

Oh, really?  What would prevent providing copies of the extant procedures with a note that they were being revised and would soon change?  Claims that copies of documents that are supposed to be readily available aren’t, in fact, available because “they are being revised” is most likely bureaucratese for “We’ve never bothered to write them down and damned if we’re going to just because you asked.”

While not rising to the level of complete  procedures,  OPR does publish a list of things, as part of the complaint form, that are supposed to happen after a complaint is filed against a licensed professional.  Here are a couple of excerpts:

7. The complainant and respondent will be contacted by an investigator. Other people with knowledge of the complaint may also be contacted. The investigator will obtain copies of written documentation, and records relevant to the complaint.

9. The investigatory process above usually takes between 6 to 9 months to complete. If a decision is made to pursue discipline, this process can take an additional 5 to 10 months depending on the complexity of the case.

According to the above, the maximum time to elapse between the time a complaint is filed and when it is either dismissed or referred for charges is 19 months.  What guarantee is there that OPR will act timely?  None.  What consequence adheres to OPR and its personnel if, say a year and a half were to go by after the filing of a complaint before an investigator ever contacted the complainant? None whatsoever.   A year and a half without an investigator following up on a complaint–pretty excessive.  Highly unlikely?  If so, then I reckon I drew the short straw, since that’s exactly what happened in the case I’m still waiting for a decision on, 21 months after I filed the complaint.

Depending on the case, that kind of untimely action may or may not be damaging to the people involved, however unfair.  But in a case where it might be damaging to one of the parties, what recourse is there to first make the agency toe the line, and second to get restitution for the damage done?  None. Nada. Zip. Zero.

There’s more like this–lots more from my experience alone, not to mention others’ experience as well, and I’m happy to supply documented examples to anyone who asks.  For now I’ll trust the example provided to have made the point: H.66 is good as far as it goes in requiring readily accesible publication of rules.  But it doesn’t go far enough in that it does not require any readily accessible publication of procedures, nor does it provide for  consequences when rules and procedures aren’t followed.

I’ll welcome any increased transparency that derives from H.66, but transparency is only one wing of the bird in question.  For bureaucratic justice to be gained, we will need the second wing as well: accountability.

Peace.

Deborah Alicen

Then there’s this from the OPR’s published procedures: