Key Testimony in Historic Impeachment Proceeding Is Being Held in Secret 

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• Kevin Mccallum
• John Lavoie

The moment of truth came last week for the women who work in the Franklin County State's Attorney's office, as state lawmakers began hearing testimony about the harassment and discrimination they say they endured for years from State's Attorney John Lavoie.

Their testimony could prove crucial to helping a seven-member House Special Committee on Impeachment Inquiry decide whether the veteran prosecutor committed offenses serious enough to warrant his removal from office, something that hasn't happened in Vermont in more than 200 years.

Yet when the moment came — at 9 a.m. last Thursday — lawmakers on the committee voted, over the objections of Vermont journalists, to hear the testimony in secret. The reason they cited: risk of retaliation against employees.

Lawmakers, their staffs and attorneys promptly packed up their things and left a large Statehouse meeting room for a smaller one upstairs from which the public and the media were barred.

There, last Thursday and Friday, and again Monday, lawmakers heard teleconference testimony from witnesses. All the "fact witnesses" — those discussing Lavoie's alleged conduct — are likely to testify this way, said Rep. Martin LaLonde (D-South Burlington), chair of the committee.

The parallel investigation into Franklin County Sheriff John Grismore, who was fired from the department for kicking a shackled suspect in the groin but still won the office in the November election, hasn't reached the witness testimony stage yet. How that process will be handled has not yet been determined, LaLonde said.

The secrecy in Lavoie's case is necessary to preserve the integrity of the investigation, protect vulnerable people from having to testify publicly about traumatic incidents and encourage more people with useful information to come forward, LaLonde said.

"Preliminary investigations are kept confidential to protect the rights and privacy of witnesses, as well as the accused," LaLonde, an attorney who formerly worked for the U.S. Justice Department, told Seven Days.

The committee is "on solid ground" to keep details of its investigation private at this point, LaLonde said. He noted that impeachment processes in other states operated similarly, including that of Connecticut governor John Rowland, who resigned in 2004, and former Illinois governor Rod Blagojevich, who was impeached in 2009.

Details of the recorded testimony would likely become public should the House recommend impeachment for either man to the Senate, which would then decide whether and how to hold something resembling a trial, LaLonde said.

But at this stage, it's important for the committee to be able to hear from people in private, he said, likening it to a grand jury.

The Vermont Press Association, Vermont Association of Broadcasters and WCAX-TV all protested the decision. Impeaching an elected official is of such consequence that "every step of the process should be open and transparent," wrote Matthew Byrne, an attorney for the Vermont Press Association, in a letter submitted to the committee. (Byrne has represented Seven Days in other matters.)

The committee's justifications "do not hold up to scrutiny," he wrote. Crime victims, including children, testify in open court all the time, he noted. People also have the right to confront their accusers. And cross-examining testimony is an important way to assure its truthfulness, Byrne told Seven Days.

Furthermore, Byrne said, the public has a right to know and assess how the impeachment process plays out in real time in the House, not just the details that may come to light later, if the case moves to trial in the Senate.

Lisa Loomis, president of the Vermont Press Association and editor of the Valley Reporter in Waitsfield, also cited the weight of the proceedings in arguing for openness.

"The possible removal of two high-level elected county officials is an important public issue, especially when voters have put the two targets into office," she wrote. "The Vermont Legislature has a longstanding tradition of conducting its business in the open and we hope it will continue."

It did not. LaLonde and Rep. Mike McCarthy (D-St. Albans), vice chair of the committee, replied by outlining all the reasons they felt the secrecy was justified. In a letter and in remarks to the committee, McCarthy stressed that the impeachment process calls for the House to investigate and the Senate to make the decision whether to remove someone from office.

"In order to find out the facts, we need to be able to offer people the opportunity to testify and present evidence in confidence and behind closed doors," he wrote.

LaLonde, the chair of the House Judiciary Committee, acknowledged that there have been times when legislative committees have taken public testimony on sensitive information in ways that shield a witness' identity. But in this case, he said, secrecy is also needed to keep details of the investigation under wraps, such as tips about who else the committee should interview.

The committee, saying it needed to review the unredacted version of an investigatory report into Lavoie's conduct, went into its first closed-door executive session on June 1.

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• Kevin Mccallum ©️ Seven Days
• From left: Sens. Randy Brock (R-Franklin) and Robert Norris (R-Franklin) listening to John Lavoie at the Statehouse last month

The explosive 10-page report was commissioned earlier this year by the Department of State's Attorneys and Sheriffs after employees in Lavoie's office complained that he had long acted inappropriately in the workplace. Lavoie has been a prosecutor for 37 years, 18 of them in Franklin County, and was elected state's attorney in November after Jim Hughes, who endorsed him, retired.

The report, written by two attorneys at Burlington law firm Paul Frank + Collins, says Lavoie used phrases such as "whore" and "fucking slutbag" and "the c word." He also once mentioned that someone had "magnificent boobs."

The report outlines incidents in which Lavoie grabbed an employee's ID and stuffed it into the top of her dress, pinched an employee to suggest she was overweight, and made inappropriate remarks about people's sexual orientation, national origins and disabilities. Some employees cried over Lavoie's comments. One spoke to a counselor, the report says.

Lavoie acknowledged publicly that his "sense of humor is often inappropriate" and said he apologized to the people he offended but has defied calls to resign.

All of the names and identifying information in the report were redacted in the version released to the public in late April, but the impeachment panel wanted to see the complete report. So after the attorneys who wrote it, Kristina Brines and Kerin Stackpole, answered a few questions about their investigation in public session on June 1, they went behind closed doors.

Not all of the committee's work is being done in secret. It has heard publicly from attorneys on the impeachment process and its history in Vermont.

It has also added some legal firepower while in public session. The committee hired South Burlington attorney Rich Cassidy under a $10,000 contract to advise them on labor law. It also hired Burlington firm Downs Rachlin Martin for $75,000.

That firm will investigate Sheriff Grismore's use of force. Last Friday, Rep. Matt Birong (D-Vergennes) revealed during the committee's open session that the probe of Grismore is expanding. Downs Rachlin Martin will also try to determine whether the sheriff "is misusing the Office for an improper purpose or personal gain" or is "engaged in any other activity that violates the public trust," its contract states. The Vermont State Police are also investigating "questionable" records uncovered during an audit of the department, according to the agency.

Neither Lavoie nor Grismore returned calls for comment.

Lavoie has hired Burlington attorney Ian Carleton, who had made inquiries to the panel's attorneys about the process, LaLonde said. Carleton did not respond to a request to discuss the case with Seven Days.

Neither Lavoie nor Carleton has been allowed into the closed sessions with other witnesses, but Lavoie will likely be given the opportunity to testify — privately — to protect any witnesses he might identify, LaLonde said.

While witnesses may not face cross-examination as they would in a courtroom, LaLonde said lawmakers have diverse points of view and take their responsibility very seriously.

"We will try to be as objective as we can," he said. "I will ask tough questions of witnesses, whatever side they are on."