MONTPELIER — Gov. Phil Scott will sign an executive order today creating the Governor’s Marijuana Advisory Commission that will review myriad issues regarding the legalization of marijuana and look at 2019 for potential legislation to create a regulated retail market for pot.
The first-term Republican is creating the commission after vetoing a bill in June passed by the Democratic-led Legislature that sought to legalize the possession of up to 1 ounce of dry marijuana and the cultivation of up to two mature marijuana plants and four immature plants beginning July 1, 2018.
The bill would have also created a commission to craft legislation for lawmakers to consider during the 2018 legislative session that would create a regulated retail market for marijuana and review various issues related to legalization.
Vermont would have been the first state to legalize marijuana through the legislative process if Scott had signed the bill. Other states that have already legalized the drug have done so through public referendums.
Scott worked with lawmakers to appease his concerns ahead of a June 21 veto session, but lawmakers quickly passed a budget that Scott had also vetoed, leaving no time to address the marijuana bill. House Republicans refused to suspend regular legislative order to take up the bill. Scott then indicated he would create his own marijuana commission that would focus on public health and safety issues.
The 13-member commission Scott will create Thursday includes two members he will appoint to serve as co-chairmen. Kendal Smith, Scott’s director of policy development and legislative affairs, said Jake Perkinson, the former chairman of the Vermont Democratic Party, and Tom Little, a lawyer and former Republican member of the Vermont House, will be appointed.
The Senate’s Committee on Committees will appoint two members, as will House Speaker Mitzi Johnson. Other member of the commission include the secretaries of the Agencies of Agriculture and Commerce, the commissioners of the Departments of Public Safety, Health and Taxes, the attorney general and the executive director of the Department of State’s Attorneys and Sheriffs. Those members can choose a designee to serve.
Scott’s executive order creates three subcommittees that will focus on highway safety, education and prevention and taxation and regulation. Scott said in June that any commission he created would focus primarily on public health and safety. Rebecca Kelley, Scott’s spokeswoman, said the governor never intended to exclude having the commission examine a regulated market.
“I think he just wanted to make it clear that, ‘These are my priorities, this is where I’ll put the emphasis,’ but did not mean he was going to eliminate everything else,” Kelley said.
The full commission will meet for the first time by Oct. 1. By Nov. 15, the subcommittees on highway safety and education and prevention are supposed to assess “high-quality primary research” and include Vermont data as much as possible on a number of topics. Some topics include injury and death caused by marijuana, the impacts of prenatal, perinatal and postnatal exposure to marijuana, impacts on cognition and mental health and crime rates related to marijuana.
The order also calls for a report due to Scott by Jan. 15 with several initial recommendations, including:
— The need for the creation, implementation and funding of statewide evidence-based youth prevention programs.
— The adequacy of and funding for substance-abuse facilities.
— An appropriate impairment testing mechanism, including the possible merits of saliva-based testing standards.
— The capacity for instate testing and analysis of toxicology samples for DUIs related to drugs like marijuana.
— The feasibility of regional impairment standards.
— Any changes to Vermont laws required to protect those 21 and younger and ensure highway safety.
The legalization bill Scott vetoed earlier this year is likely to reappear in January when lawmakers return to the State House. Smith said Scott is hoping the committee’s early reports will help the administration and lawmakers determine how best to move forward.
“The governor wants to see what the commission comes up with between now and January,” Smith said, noting that the governor could be more inclined to sign the bill, or may “possibly” be dissuaded from signing it based on new information.
Kelley said the commission’s early reports focus on public health and safety because those issues will need to be addressed regardless of whether lawmakers send a legalization bill to the governor again early next year.
“I think there is a recognition that could move forward, and that’s another reason to prioritize those pieces,” Kelley said. “I think it’s hard to predict what’s going to happen because we don’t know what these recommendations are going to be and … the recommendations put forward here may impact how the Legislature moves that bill forward. So I think it’s too early to predict whether it will be passed as is.”
Another report is due to the governor by Dec. 15, 2018. That report will be more comprehensive and could include recommended legislation for implementing a regulatory and revenue system for an adult marijuana market.
The recommendations will include a business plan with a self-funded regulatory system, including a recommended tax rate for the sale of legalized marijuana, the costs associated with substance abuse and treatment and costs associated with public awareness campaigns and youth prevention programs.
Other recommendations will include licensure costs and requirements and the estimated revenue needed to set-up the self-funding regulatory system.
The commission will also be asked to determine “a set impairment threshold for operating a motor vehicle” on state roads and highways and identify “an appropriate impairment testing mechanism, and/or recommend increased (Drug Recognition Experts) and training.”
Smith said the lack of an appropriate impairment standard or reliable testing mechanism will not prevent the state from moving forward with a regulated retail market for marijuana.
“We’re asking the commission, ‘How can we best identify drugged driving?’” she said.
“We don’t have any predetermined outcomes of what the commission is going to find,” Smith added. “No one factor in this shall be dispositive, as the Legislature would say.”
Jaye Pershing Johnson, Scott’s legal counsel, said utilizing DREs “might be the only thing that is realistic.”
The commission, Johnson said, is intended to gather information and learn from the states that have already legalized marijuana.
“In this case, we have the opportunity to learn from them, to get recommendations and observations and more data based on their experience and sort of set up the infrastructure first,” she said. “(Scott is) not looking to slow the process or change his mind on this stuff. He sees the cart before the horse in other states, and to get this right in Vermont, knowing what we know about what’s going on around us, I think that’s more the point of the structure of this commission.”
The executive order clearly eyes the 2019 legislative session as the earliest possible time frame for passing a regulated retail market in Vermont. Smith said the administration wanted to include a pathway for a potential market that some lawmakers are seeking.
“We definitely wanted to establish a timeline, that we’re serious about this, and we have set some milestones for ourselves. December 2018 is a year from now, i t ’s a pretty reasonable amount of time to give ( the commission) to do some real good work on this issue,” she said.
The governor’s office received offers to serve on the commission from many individuals. The commission was crafted with input from many groups and individuals, Smith said.
“We have met with whoever has reached out and said, ‘We want to come in and talk to you about this,’ and that has been people on both sides of the issue,” she said. “Ultimately, it really follows (what) the governor thinks is the best path forward.”