Scott: Nomination flawed but acceptable if confirmed

MONTPELIER — Gov. Phil Scott said Tuesday he will accept an appointee to the Green Mountain Care Board made by the previous governor if the Senate votes to confirm her, even as his administration continues to voice concerns about whether she should be confirmed.

Robin Lunge was appointed to a six- year term on the Green Mountain Care Board, the state’s health care regulatory body, by former Democratic Gov. Peter Shumlin in mid- November before he left office in early January. She began serving in an interim capacity as a board member on Nov. 28 because the Senate was not in session and could not immediately act to confirm the nomination.

Robin Lunge

But as Vermont Public Radio reported Monday, the paperwork that i s typically filed when such an appointment is made could not be located when the Senate Health and Welfare Committee recently tried to act to confirm Lunge’s appointment.

Scott, a Republican, told reporters at his weekly news conference Monday that the lack of paperwork raises questions about whether Lunge can be confirmed by the Senate. If she is confirmed it could be challenged by any person or group that does not like a decision the board makes because of the missing paperwork, Scott’s legal counsel, Jaye Pershing Johnson, said.

“That’s an unfortunate incident that has come to light. It wasn’t something that I asked for. The Senate came to us and asked us if we had any paperwork on Robin Lunge because there’s a process in place that has to be adhered to in statute,” Scott said. “We haven’t been able to find any of the paperwork to back that up. We’ve asked the Secretary of State, we’ve asked the Senate, we’ve written a letter to the Green Mountain Care Board to see if they’ve gotten any language.”

Despite the effort to remove Lunge from the board and replace her with someone appointed by Scott, the governor insisted Tuesday that the issue was not politically driven.

“I don’t want this to be a problem for us. I don’t want this to be another obstacle in the way of doing some of the good work we want to do. This isn’t something that is advantageous to us, either,” he said.

Jason Gibbs (Courtesy photo)

Jason Gibbs, Scott’s chief of staff, told reporters Tuesday that the administration has two documents on file regarding Lunge. One is her notarized oath of office and the other is a filing with the Department of Human Resources to receive her pay as a board member. But records indicating that Lunge’s appointment was sent to the Senate and to Secretary of State Jim Condos cannot be located.

The missing documents mean the Senate was not properly notified of the appointment and raises questions about whether a confirmation vote is valid, according to the administration.

Johnson sent a letter to Judy Henkin, general counsel for the board, on April 12 outlining the issue and suggesting that a new nominating process begin.

“Given the obvious potential for a third party challenge to a GMCB decision and the impact the uncertainty regarding an invalid appointment would have on GMCB deliberations, decisions and operational considerations, the regulated community, the Legislature, the Governor’s Office and Ms. Lunge herself, if Ms. Lunge and the GMCB cannot produce the appointment documentation, we believe the best and most appropriate corrective action is to request the Green Mountain Care Board Nominating Committee re-perform the nominating process in order to remedy the defective appointment,” Johnson wrote.

Scott acknowledged that he could act to re-appoint Lunge to the board but said he was not committing to do that if the nominating process is restarted.

“I could interview her again along with anybody else and select who I think is best to be on the Green Mountain Care Board,” the governor said.

The Senate could also move forward with a confirmation vote for Lunge. If the Senate were to confirm her, despite the missing paperwork, Scott said he would accept it.

“If they came and said that she is confirmed then we would accept that,” Scott said.

Gov. Phil Scott speaks about the nomination of Robin Lunge to the Green Mountain Care Board by former Gov. Peter Shumlin. (VPB/Neal Goswami)

Senate President Pro Tem Tim Ashe, D-Chittenden, said he sees no reason why the Senate should not move forward with a confirmation vote. Shumlin signed an affidavit on April 14 stating he appointed Lunge in November.

“There’s no reason to not go forward with a confirmation vote. If the members of the Senate believe that the communication hasn’t been sufficient to meet the test they can vote no. That’s life. I wish that there had been a letter sent,” he said.

Still, Ashe said members of the Senate were “informed probably seconds after the appointment electronically.” The Senate Health and Welfare Committee will review the nomination and make a recommendation to the full Senate on whether Lunge should be confirmed, he said.

“The (Vermont) Constitution doesn’t say a letter has to be sent. The statute doesn’t say a letter has to be sent, although clearly from past practice, that has been custom. So, the committee is going to have to go in eyes wide open that the manner in which it has been communicated is acceptable to the Senate,” Ashe said.

Ashe said senators will need to vote “our conscience and sense of fair play.” He said the decision to confirm “is left to the Senate and no one else.”

“ Would we handle an appointment by a governor of a different stripe the exact same way we would handle this one? If the answer is no we’ve got a personal problem with integrity. But, to me, I believe we should proceed and act on this,” Ashe said. “Every action up until now no one has questioned that Robin is a legal, standing member. If the Senate votes to confirm, that says the Senate is satisfied that the process is sufficient to confirm the appointment.”

Two other positions on the five-member GMCB remain vacant. Scott said Tuesday he has received names from the nominating committee and will soon begin interviews with potential board members. If Lunge is not confirmed Scott would be able to appoint a majority of the board.

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