Last February, a group of Vermont senators gathered to discuss a novel idea. Farmers, homeowners and small businesses were reeling after a series of devastating floods. Rain-swollen rivers had swamped downtown Montpelier and smaller communities across the state. The destruction was widespread and expensive. Experts warned that such events would be increasingly common, thanks to the climate crisis.
Members of the Senate Judiciary Committee wondered: Shouldn’t the fossil fuel industry pay?
Its chair at the time, the late Bennington County Democrat Dick Sears, had worked with Michael O’Grady, deputy chief counsel of the Office of Legislative Counsel, and other legislators to draft a bill that would compel oil companies to compensate Vermont. The task was daunting, though. The liability would be an expensive proposition, and any law would have to survive a legal challenge from an industry known for its deep pockets and litigiousness.
As legislators mulled a draft of the pioneering bill, they were keenly aware that they were in uncharted legal territory. No state had such a law, though New York was working on one.
“This is a first-in-the-nation law, and no court has addressed the constitutional issues with it,” O’Grady warned the committee. Making this bill legally bulletproof would not be easy, since it was an untried concept.
“Will it go to federal court? Will it be litigated? Is it preempted?” O’Grady said, summarizing the legislators’ questions. “Yes.”
The General Assembly ultimately passed the bill and the Climate Superfund Act became law in May 2024. As O’Grady predicted, fossil fuel companies sued Vermont in federal court. Vermont’s attorney general is now defending the act against a fleet of lawyers from an oil industry group and the U.S. Chamber of Commerce. The plaintiffs claim that Vermont’s law violates the federal Clean Air Act, and that the U.S. Environmental Protection Agency — not states — has the authority to regulate emissions. Legal experts predict the lawsuit will take years to play out as attorneys battle over the legal complexities that O’Grady pinpointed at the bill’s inception.
The law, the latest example in Vermont’s tradition of trailblazing legislation, underscores the crucial role played by the state legislature’s nonpartisan Office of Legislative Counsel in shaping Vermont’s laws and regulations. Its staffers are charged with turning lawmakers’ ideas into legal language that will be defensible if challenged in court.
It can be a long road from concept to law. Across the office’s legal and drafting operations units, staffers do research, answer legislators’ questions, draft bills, then continually revise them as they move from committee to committee and new ideas surface. The viability of Vermont’s laws, including the recent Climate Superfund Act, depends in part on those staffers’ ability to craft clear, precise legislative text that can withstand challenges in court.
The heavy workload, concentrated during the five months lawmakers are in session, has strained the office. In recent years, legislative leaders have hired additional staff, including in-session-only employees, and boosted pay, but they acknowledge that the office still will face staffing and bandwidth trouble without additional support.
The Office of Legislative Counsel is one of the few sources of professional help available to lawmakers, most of whom do not have personal staff. The office was established in 1972, amid a wave of efforts nationwide to strengthen legislative branches, according to Stephen Klein, former director of Vermont’s Joint Fiscal Office, the other primary source of professional support for legislators. As the federal government moved to foster new sources of nonpartisan staff, such as the Congressional Budget Office, Vermont created the office, Klein said.
Its mandate has remained largely unchanged over the past 50 years. The office’s size has grown slowly from one staff member to 26, with each assigned to different subject areas. Nine of its current employees have more than a decade of experience in the office, so they have acquired the institutional knowledge and subject matter expertise that legislative committees depend on.
Brynn Hare, director of the Office of Legislative Counsel, declined to be interviewed for this story, writing in an email that she was not in a position to speak publicly about the office or its work. Deputy chief counsel O’Grady did not reply to an interview request.
Seven Days spoke with several former staffers, whose collective experience exceeds the number of years the office has been around. They shared what it’s like to shape Vermont’s laws.
One described a constant, arduous process of translating ideas into and out of legalese as bills move through the Statehouse’s committees and chambers. It can take new staff a few sessions to become efficient at updating legal language based on the plain-language feedback from legislators, said David Hall, who worked in the office for 15 years before leaving in 2023.
Legal challenges typically only arise when a group or industry has a stake in whether a law takes effect and challenges its constitutionality, as is the case with the Climate Superfund Act. If plaintiffs win, then Vermont may be responsible for paying the opposition’s costly legal bills. When staffers from the Office of Legislative Counsel foresee such challenges, as O’Grady did, often they will consult with the Office of the Attorney General and lawyers from other regulatory agencies to mitigate as much risk as possible, Hall said.
Work often spills over into weekends and nights, particularly toward the end of each session when deadlines loom, said Anne Winchester, who worked in the office from 1985 to 2010.
“I literally used to keep a sleeping bag in my closet so that I could take a nap,” she said.
In 2019, the National Conference of State Legislatures assessed the office as part of a study of Vermont’s legislative branch workforce. The sheer volume of work, the report said, had grown steadily over the years.
“It’s always like drinking from a fire hose,” Hall said. Keeping up with changes to rules and procedures, and administrations, adds to the challenge, Hall said.
The growing complexity of requests brought to the office also drives the increased workload, the 2019 report concluded. The workload had pushed the staff responsible for drafting legislation “near a breaking point,” according to comments made by office leaders referenced in the report.
That predated the pandemic and the more recent floods, which brought new, urgent issues to the office on top of its usual work, Hall noted.
Several former legislators who spoke with Seven Days said policy makers feel the void when experienced members of the office retire or move to other roles, taking with them years of institutional knowledge. But those changes also open up opportunities for new perspectives and expertise to emerge, former staff member Janet Ancel said. She joined the office soon after its creation and worked there for nearly 20 years before serving in the governor’s office and later as a member of the House of Representatives from 2005 to 2023.
“It’s the same thing that happens when a pivotal chair leaves,” she said. “Everyone thinks, That’s a huge loss, and it is, but there’s always someone to step in.”
The 2019 report recommended that the General Assembly add one full-time editor and one session-only drafting technician, or a hybrid editor/technician, to help ease the strain on the office’s drafting unit. It also recommended that the General Assembly create a more comprehensive compensation plan to ensure legislative staff salaries were competitive with the broader job market and adjusted based on experience and performance.
The report’s pay recommendations felt validating, said Luke Martland, who joined the office as its director in 2011. Martland left in 2021 to work on climate-related issues in Washington State.
“The salaries were too low and didn’t recognize the excellence of the work of both the attorneys and the drafting operation staff,” Martland said. Most, but not all, of the staff hold law degrees, and it was hard to attract top talent away from law firm jobs without competitive compensation.
Change came in 2022, when the Joint Legislative Management Committee, the group of legislators overseeing the Office of Legislative Counsel and other professional staff, adjusted salaries based on market analyses conducted by the National Conference of State Legislatures and an outside consultant. The office’s spending on salary and wages has increased slightly since then, and it has hired additional staff to boost bandwidth when legislators are in session and demands on the staff are greatest. The committee also established a policy to review pay and organizational structures every three years.
The issue is now before the management committee again. It convened on January 30 for the first time this session to hear from directors of the Statehouse’s professional offices — including Hare from the Office of Legislative Counsel — about how to keep compensation and staffing levels rightsized.
The previous changes had spurred helpful adjustments, Arlene Donovan, director of Office of Legislative Human Resources, told the committee. But hiring a new outside consultant — to the tune of $92,000 for a seven-month analysis — would better ensure the professional offices continued to be well structured and sufficiently resourced. After a brief discussion about the study’s costs, the committee unanimously voted in its favor.
This session, the big-ticket issue is education financing. Its complexity and urgency has prompted nearly every legislative committee to address it in some capacity.
Senate President Pro Tempore Phil Baruth (D/P-Chittenden-Central), the newly elected chair of the management committee, said he’s aware of the “crushing burden” an all-hands effort such as education financing creates for the legislature’s lawyers, and he’s looking at ways to ensure there are enough staff to handle the workload.
“We’re just flying by the seat of our pants if we don’t have a lawyer.” Rep. Alice Emmons
Some committees have already noticed that legal staff might not be as readily available this session. When an attorney from the office was speaking to the House Committee on Corrections and Institutions last month, chair Rep. Alice Emmons (D-Springfield) expressed concern about not having sufficient expertise on hand when needed, given the amount of staff time that will be directed to education financing reform.
“We’re just flying by the seat of our pants if we don’t have a lawyer,” Emmons said.
The attorney assured Emmons and the committee they would have a lawyer.
“There’s always more demand than supply when it comes to allocating your time among committees,” said Hall, the staff member who left the office in 2023. Attorneys attend as many meetings as they can and draft bills late into the night. But occasionally, he said, there’s just not enough time to meet every chair’s expectation.
Sometimes, the committees just have to wait, he said. “That’s the reality.”
The original print version of this article was headlined “Legal Limits | The legislature’s lawyers are a critical resource for Vermont’s citizen lawmakers — and they’re as busy as heck”
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This article appears in Feb 5-11, 2025.
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