By DEBORAH BUCKNAM
Last year, Gov. Peter Shumlin issued an executive order “banning the box” for applicants for state employment. Last month, he signed a bill ordering all private employers “ban the box.” Banning the box means no employer can ask on an employment application if an applicant has a criminal record.
In signing the legislation, Gov. Shumlin said, “[Banning the Box] gives everyone an opportunity to make their case, regardless of whatever mistakes they’ve made, to get a job and make a brighter future.”
Dan Barlow of Vermont Businesses for Social Responsibility added, “We believe strongly that if a person pays their debt to society, they deserve a second chance through employment.”
Vermonters are fair minded and always willing to give someone a fair shot and a second chance, and this legislation reflects those Vermont values.
Now let’s give the 20,000 to 30,000 Vermonters on two government blacklists –many, if not most, who have never been convicted of a crime – a fair shot as well.
Vermont has three registries: the child protection registry, the vulnerable adult registry and a sex offender registry. The child protection and vulnerable adult registries are the subject of this commentary and should not be confused with the more stringent sex offender registry.
To be placed on these two registries – called “substantiation” – does not require a criminal conviction. It does not even require the lower burden of proof required in a civil case. Moreover, the standard is vague and subject to the wide discretion of State of Vermont employees who make the decisions regarding substantiation.
Not only adults, but children as young as age 10 can be placed on the registries.
The danger of the lax and vague standard is compounded by the fact that these registries and the procedures that give rise to them are veiled in secrecy. Therefore, most Vermonters are not aware the systems exist, and those caught up in the systems dare not speak up.
What happens if a Vermonter is placed on these registries? Those on the registries are not allowed to obtain any employment having contact with children or vulnerable adults, because employers in those fields must check the registries before hiring a job applicant. These Vermonters cannot work as LPNs, LNAs, RNs or physicians. They cannot be school or hospital cafeteria workers or janitors, school bus drivers, crossing guards, foster parents, teachers or para-educators. They cannot volunteer anywhere where there are children or vulnerable adults. They cannot be coaches or scout leaders. They may not even accompany their children on school field trips.
According to the Federal Bureau of Labor Statistics, the jobs people on these registries are banned from constitute approximately 146,000 of the 310,000 jobs held by employees in Vermont – nearly half the jobs in the state.
Expunging one’s name off the registry is daunting. First, you cannot ask to have your name expunged for seven years. Second, you have to prove that you pose no future risk of harm. Under legislation enacted this year, even that is not enough: You can be denied expungement based on the “nature of the substantiation” – whatever that means. For some, then, there is never a second chance.
It gets worse. Minors who are in custody of the Department of Children and Families don’t get to appeal their substantiation. Why? Because parents of children in DCF custody no longer have any right to represent their children in an appeal, and DCF will not appeal, because the agency made the determination to substantiate in the first place. The government then becomes the prosecutor, judge and jury of these children.
It gets even worse. The registries are so poorly kept that some people who were investigated and unsubstantiated remain on the registries without knowing it. And while the record of persons who are unsubstantiated – a finding of no abuse – after an investigation are supposedly expunged and confidential, their names remain in the system, and DCF has been known to use the information and even to disclose the information to a person’s employer.
These registries snare the poor and vulnerable – those who cannot afford lawyers and who are caught up in a family crisis. The ladder of opportunity has been yanked up out of reach for these Vermonters.
Registries sound like government is doing something to protect us, but there is not a shred of empirical evidence that banning people on the registries from nearly half the jobs in Vermont protects anyone except the jobs of the government employees administering the system.
If we want to give people with criminal convictions a second chance, then surely we should give the people on these government blacklists a similar second chance. Reforming the child protection and vulnerable adult registries should be a top priority of the next administration.
Deborah Bucknam is a St. Johsnbury attorney running as a Republican for Attorney General in 2016.