The People vs. the Despots

Unaccountable power has been the subject of much concern among the political theorists of the English speaking countries. Cromwell's Roundheads of 1649 devised a crude if effective means of making Charles I accountable (they lopped off his head ) . Harrington, Sidney, Locke, and Burke sought a less violent solution to the problem, and the debate carried over into the political thought in the Colonies.

The consensus solution devised by 19th century Americans can be found in Article 6th of the 1777 Constitution of Vermont:

"That all power being originally inherent in and consequently derived from the people, therefore, all officers of government, whether legislative or executive, are their trustees and servants, and at all times in a legal way, accountable to them."

With that democratic constitutional principle in mind, it is worthwhile to examine one particular type of governmental officer in Vermont, and inquire how that officer is accountable to the people.

That officer is the District Environmental Commissioner.

When the Davis administration first conceived what was to become Act 250, permits for developments were to be issued by state agencies. Objection was made that these state employees were not "close to the people", and that there should be "local" civilian review of project applications. The result was, eventually, nine three-member citizen panels operating from regional offices in Rutland , Essex Jct., Springfield , Barre and St. Johnsbury.

The three environmental commissioners in each district are appointed by the governor. The Governor, however, has no control over their performance in office, and can't remove them before the end of their terms. The district commissioners are somewhat accountable (for following the rules) to the state Environmental Board, whose members are also appointed by the governor and not subject to his control or removal.

In 1970 the criteria for getting a permit were vague, and there were no precedents to guide the commissioners. In 1973 the legislature expanded the permit criteria and added pages of detailed requirements. In addition, 27 years of rules of practice and precedent have now accumulated. What began as a simple "citizen review" based on the common sense of ordinary Vermonters has become much closer to an administrative law court . Indeed, it has turned a ritual kabuki dance of very expensive lawyers, architects and engineers, performing before a very different kind of commissioner.

As the nature of the commission's work has changed, so have the commissioners. Typically a commissioner can be engaged 6-8 days a month, plus a lot of homework. Instead of ordinary citizens taking a day or two a month to look over applications, the commissions now tend to be comprised of people who can afford to devote a lot more time to the task. And all too often, the incentive to get on a commission seems to be the opportunity to impose arbitrary demands on applicants in the name of protecting the environment or any number of other rationales. In short, service on a district commission has come to appeal to authoritarian personalities, and woe unto the applicant who dares to challenge their dictates.

To whom, if anyone, are these little despots accountable? Certainly not to "the people". The legislature has no control over their actions. Even the governor, who can instruct, discipline, transfer, or remove his top appointees, can't replace district commissioners until their term of service expires, and if the Governor sought to tell them how to perform their job it would be a political scandal.

There is no perfect solution to the problem of making unaccountable government agents accountable to the people. But Sen. Julius Canns (R-Caledonia) has come up with at least a good solution. Like many other Caledonia county residents, Canns was outraged at a 2-1 district commission ruling denying the Town of Lyndon a permit for a gravel pit, on the ridiculous grounds that a gravel pit was a hideous blight, the mere sight of which would "shock the conscience" of the average Vermonter. This, after the proposed pit had been unanimously approved at Lyndon town and school district meetings.

Canns' solution is a bill (S. 197) which would give the selectmen of towns in each Act 250 district a chance to ratify or reject any commissioner reappointed by a Governor. If a majority of all the sitting selectmen fail to ratify a reappointment within 60 days, the reappointment fails, and the Governor has to start looking for somebody else to serve.

In District 7 (Northeast Kingdom) there are probably 140 selectmen and city councillors. If the Governor wanted to reappoint the two commissioners who notoriously overrode a local community's unanimous wishes, not to mention all common sense, he would have to receive 71 signed assents. Rather than risk an embarrassing rejection, the governor might well let a controversial commissioner go, and find someone new.

As a check on unaccountable power, it's not perfect. The check doesn't come into play until the time of renomination. But Canns is on to something here: "The people", the descendants of "the people" by whom and for whom the Vermont constitution was written, are tired of being pushed around by little despots who, once in office, are answerable to nobody. They want some democratic method of booting them out. They deserve to get it.

January 1998