Newfane Superior Court

It could cost close to $1 million to modernize the ventilation system at Windham County Superior Courthouse in Newfane, to comply with new standards developed due to the COVID-19 pandemic.

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Safety and security problems in Vermont courthouses that pre-dated the pandemic have grown even more acute in the last year and a half.

For the Judiciary, one of the three branches of state government, of prime importance is bringing seven county courthouses up to the standards imposed by the pandemic.

According to Act 50 of 2021, the state’s capital funding bill, all three branches — executive, legislative and judicial — must prioritize critical projects that can be paid for with federal pandemic aid.

“There’s a significant investment that needs to be made to bring these buildings up to what the Supreme Court has set forth to reopen,” said Lamont Barnett, one of two assistant judges, with Patricia Duff, of the Superior Court in Windham County.

Barnett said that a few years ago, heat pumps were installed in the Newfane courthouse to cool the building in the summer and heat it in the winter. But the ventilation system itself is still not up to the standards required by the Judiciary in response to the COVID-19 pandemic.

He said it could cost up to $1 million to fix the ventilation system in the Newfane courthouse. Currently, the entire county budget is less than $1 million, or about $5 a household per $100,000 of property value. Paying for the upgrades could add another $7 per $100,000 or so to each household’s tax bill.

Barnett said unless the state allocates money for the upgrades, county taxpayers might have to foot the bill.

Designated for the counties

When the federal government gave pandemic aid to the states, some money was set aside for the counties.

In Vermont, that amount was $120 million, said Sen. Jeanette White, D-Windham, the chairwoman of the Senate Committee on Government Operations and a member of the Senate Committee on Judiciary. She said the committee was prepared to set aside $12 million of that for courthouse upgrades.

But because Vermont doesn’t have a traditional county system like other states, that money went to the state, which reallocated it to the towns.

“I was disappointed that the money went to the towns and not the counties,” she said.

County funds redirectedIn March, the state’s federal delegation announced it had worked with the U.S. Treasury Department “to more accurately reflect the reality in Vermont” by reallocating the money to cities and towns.

“I want to thank our congressional delegation for their advocacy, and the Biden administration for their willingness to listen and adapt to Vermont’s unique county structure,” said Gov. Phil Scott in a statement announcing the change. “This revision in guidance will allow our municipalities to take full advantage of the ARPA funding they are entitled to, so they can begin making critical investments to address their needs, helping us recover from the pandemic stronger.”

In total, the state of Vermont and its cities and towns received $1.25 billion through the ARPA’s Coronavirus State and Local Fiscal Recovery Funds.

The Scott administration did not respond to a requests for comment.

Money has been held back

The funding had been held back because of the Treasury Department’s previous designation that Vermont’s counties were part of local government, as is the case in most other states, the delegation said in a statement.

If the aid had gone directly to the counties and not rerouted to towns and cities, there would have been “plenty of money” to make the upgrades, said Patricia Gabel, court administrator for Vermont.

Instead, the Judiciary must present its report to the state in December and await its decision, rather than implement the necessary upgrades right away. This means plans to reopen Vermont’s courts are still restricted by the pandemic and holding jury trials in some courthouses is problematic.

There is another option, said Sen. Dick Sears, D-Bennington, chairman of the Senate Committee on Judiciary and a member of the Senate Committee on Appropriations.

“There’s nothing to prevent the towns from helping the counties out with some of these problems,” he said, by setting aside some of the money they received that was originally intended to go directly to the counties.

“Nothing stops the towns from agreeing to allocate some of the funding for the counties,” agreed Gabel. “If courthouses are important to the community, this is the opportunity to do that.”

Security is the issue

In response to the pandemic, the Vermont Supreme Court issued an administrative order in March to govern court operations. The order was amended in September to identify “limited-entry courthouses” that do not have adequate ventilation systems to accommodate unrestricted in-person hearings.

The Newfane courthouse, which was identified as one of those courthouses, has been closed to the public since the original order was issued.

But that doesn’t mean court hearings haven’t been held since in-person hearings were prohibited. In civil, criminal and family court, hearings have been held via an online platform known as Webex.

For fiscal year 2021, the Legislature appropriated $7.5 million to set up the courts for remote hearings. The money also provided hazard pay to court personnel who had no choice but to be in a courthouse and to help the courts clear up a case backlog because of the pandemic.

Talk of closing for a few weekdays

Gabel said while there has been talk of closing some courthouses a few days a week, that is because the courts are having difficulty in staffing security positions, not because of the pandemic. That problem pre-dated COVID-19.

“One of the biggest challenges to getting cases heard is finding enough courtrooms and having enough security,” she said. “If buildings are healthy and are appropriate for holding court proceedings, we need them. The Supreme Court has been on record for many years not wanting to deprive any county of a courthouse.”

“Security has been an ongoing problem,” agreed Sears.

Can’t always get ...

Every two years, the Judiciary presents a budget request to the Legislature, but the Judiciary doesn’t always get what it asks for.

Two years ago, he said, the Judiciary requested an 8 percent budget increase but only received 4 percent.

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Traditionally, the Sheriff’s Departments in the 14 counties have provided security. But that tradition has been slowly whittled away, with the Judiciary contracting with private companies to provide courthouse security.

In 2016, the Windham County Sheriff’s Office, then under Keith Clark, declined to renew its contract with the Judiciary, contending his costs exceeded the state’s reimbursement.

That is not likely to change any time soon, said current Windham County Sheriff Mark Anderson, who is also the president of the Vermont Sheriffs’ Association.

‘A crisis for the Judiciary’“We need the state to pay the cost of the service,” said Anderson. “The sheriffs have been subsidizing the state of Vermont for decades, a subsidy that could be better spent on our constituents.”

Anderson said the courthouse contract is $29 an hour, while other contracts, including patrols in a half dozen towns are at $56 an hour.

He said it’s up to the Judiciary to determine security funding for each courthouse, but it’s up to the Legislature to approve it. He said historically, the Judiciary has asked for funding for a full-time presence, but only received part-time funding from the state.

“It’s never enough,” said Gabel. “We fall further behind every year.”

Withdrawing deputies

In Windsor County, the sheriff has notified the Judiciary that he is withdrawing two of his three deputies from the courthouse. In Chittenden County, the sheriff there only supplies one deputy to the criminal court and is ready to withdraw that one, too. At the civil court in Chittenden County, one security guard from a private firm with no arrest powers monitors people coming through the metal detector by the front door.

In North Hero, the Grand Isle County Courthouse is now closed Monday, Wednesdays and Fridays because of an inability to find either qualified deputy sheriffs or security officers.

In Franklin County, Sheriff Roger Langevin was close to not renewing the contract with the Judiciary, but went ahead with it, even though his office is losing money on the contract.

In many cases, courthouses are ready to be opened and jury trials are being scheduled, said Gabel, but if the sheriffs continue to withdraw security services, trials will need to be postponed again.

“This is a crisis for the Judiciary,” she said. “We can’t unlock courthouses without security.”

Options but no solutions yetWhite believes the sheriffs should be in charge of court security and they should be paid appropriately. She also believes Vermonters should consider paying their sheriffs out of taxes so that every town, even those without police departments, will get police coverage without having to negotiate a contract.

And Sears said he would like to see the Legislature mandate that the Judiciary negotiate a contract with the sheriffs en masse.

“The Sheriffs’ Association previously resolved to negotiate with the Judiciary as a single entity, but before we opened that line of discussion, fast-changing circumstances in individual counties has caused us to take the issue up again next week before we commit to it,” said Anderson. “If the decision to negotiate as one is renewed, we will contact the Judiciary to pursue a joint negotiation.”

Gabel said negotiating one contract with all 14 departments would be optimal, but would still require unique needs for each facility.

“Another possibility, instead of having the Judiciary be a ‘pass through’ as it is now, the state could require sheriffs to secure courthouses and appropriate the money to them,” she said.

Not all courthouses are county-owned buildings. In Bennington County, the courthouse shares a state-owned building with state agencies such as the Department for Children and Family Services and the Bennington County State’s Attorney’s Office.

Sears said the Judiciary solely pays for security for the Bennington building, even though there are other occupants.

“The other agencies should be picking up a slice of that,” said Sears. “Their employees are benefiting from that security.”

Pandemic forces new questionsGabel believes the pandemic has helped the Judiciary to identify areas where it can save money. By hosting remote hearings, the Judiciary might be able to adjust its security budget.

“There may be savings in the base budget than can be redeployed,” she said.

An unforeseen benefit of going remote has been that more people are able to make their court hearings, said Gabel, because people can take a break from work, rather than a whole day off, or might not need to find child care to attend.

“The pandemic has forced these questions on us,” said Gabel. “Maybe these are the kinds of philosophical questions we should be asking anyway.”

The Judiciary has established an advisory committee to look at the efficacy of remote hearings and how they might continue into the future.

“Once we learn what works best for the litigants and the other participants, we can start putting the right resources in the right places,” she said.

No web access

This touches upon another problem for Vermonters, said Gabel.

Even if someone might prefer to participate remotely, they might not be able to because they don’t have adequate internet access.

“How do we support those people to insure they have the same opportunity to participate in an equitable way?” asked Gabel.

Nonetheless, many court hearings have to be held in public, she said, because Vermonters have a constitutional right to confront their accuser in a court of law.

That comes back around to how healthy are the courthouses in Vermont and what can be done to make them safe for everyone.

“How you interpret those constitutional rights in the context of a pandemic is very sensitive,” said Gabel.

“Just like our schools and other state buildings,” said Sears, “the air quality in courthouses isn’t great. The air in the statehouse itself is not that great.”

Bob Audette can be contacted at raudette@reformer.com.