MONTPELIER — Reluctance by a Pennsylvania health corporation to participate openly in the Sheffield wind hearings kept a key witness from testifying here Tuesday.
Universal Health Services (UHS), which owns the King George School in Sutton, has been a party in the technical hearings that got under way in January before the state Public Service Board (PSB). The hearings are being held to determine if UPC wind developers should receive a certificate of public good to build a 16-turbine wind farm on ridge lines in Sutton.
After more than a month’s recess, the hearings resumed this week with testimony anticipated from Dr. Karen Fitzhugh, who runs the King George School, a private school for students with behavioral and emotional learning disabilities.
Dr. Fitzhugh was expected to testify that the wind farm would have an adverse effect on the school and likely cause it to close. Such a closure would “have a devastating effect on the town of Sutton,” according to its attorney Daniel Hershenson.
The school pays roughly $50,000 a year in property taxes, and should it close, the town fears a $2-million payroll would go elsewhere.
Dr. Fitzhugh had said as much in earlier public hearings when UPC first announced its intentions to build a wind farm that would straddle the neighboring towns of Sheffield and Sutton. But those public hearings were not as formal as the ones now under way before the PSB.
And on Tuesday, a fly appeared in the ointment.
After all the legal arguments were said and done, the three-member board ruled that Dr. Fitzhugh would not be allowed to take the stand. Chairman James Volz said a written decision would follow.
While it may be premature to draw conclusions, the board’s decision appeared to stem from a decision that its process had been abused. There were questions of fairness and whether all parties, primarily UPC, had been given a timely chance to respond to new evidence.
UPC attorney John Kassel said his clients were not informed until January that Dr. Fitzhugh might be subpoenaed to testify. The announcement came “in out of the blue,” he said, as he argued that “this is not the way the permitting process is supposed to work.”
At the heart of Tuesday’s argument was the owner of King George School. According to its web page, UHS “is one of the nation’s largest and most respected healthcare management companies, operating acute care hospitals, behavioral facilities and ambulatory centers nationwide.” The site lists some 100 facilities operating over a landscape from Alaska to Texas. In addition to hospitals, the facilities include schools, clinics, residential treatment centers, and cancer institutes. Its only holding in Vermont is the King George School, which houses 72 beds.
As a party to the PSB hearing, UHS played a dormant role that ironically came to a head in its refusal to put Dr. Fitzhugh on the stand. The reason for the company’s laid-back position was it didn’t wish to spend the money on filing testimony, according to its attorney, John Marshall.
Consequently, UHS didn’t file any pre-file testimony, nor did it support Dr. Fitzhugh’s desire to testify. According to Mr. Marshall Tuesday, UHS has no plans to close the school, whose future, the company says, depends on several factors.
Yet, while UHS didn’t agree with the position Dr. Fitzhugh had taken, regarding the wind farm’s impact on the school, the company agreed she could testify as long as she was subpoenaed by a third party — or some else other than UHS.
To that end, according to testimony Tuesday, Dr. Fitzhugh was deposed by attorney Barclay Johnson, who represents both UHS and a group known as the Ridge Protectors, who are against putting wind farms on Vermont ridge lines.
Once the deposition had been recorded and reviewed, attorney Johnson offered it to the Department of Public Service (DPS), which in pre-filed testimony to the board, had relied on Dr. Fitzhugh’s public comments. The department, however, refused to play the middle man.
Before the board Tuesday, DPS attorney John Cotter said although he wanted the testimony to go into the record, he was bothered by what he called “an unusual way to proceed.”
Later, Mr. Cotter noted that UHS had “exercised a great deal of control over this testimony,” and suggested the company would have tried to change it if they didn’t like it.
As he explained the department’s role in the matter, Mr. Cotter tried to fashion a compromise. He suggested that the board give the wind developers more time to acquire information from UPC, or through what lawyers call a discovery. In return, Dr. Fitzhugh would be allowed to take the stand on March 28, the last day scheduled for testimony in the case.
The DPS is the official public watchdog in these type of proceedings, and when pushed Mr. Cotter said he did not want to risk its objectivity and integrity by issuing a subpoena for Dr. Fitzhugh. He said he was uncomfortable over what had transpired, but he still believed the testimony was important to the case.
His solution did not convince board member John Burke.
If the board allowed the testimony, he asked, “haven’t we in essence blessed this kind of behavior?”
Eventually, the role of getting Dr. Fitzhugh to the stand fell to the town of Sutton.
On behalf of the town, attorney Hershenson said there was no collusion with any other party at the hearing to get the principal’s testimony in the record. Up until the middle of December, he expected Dr. Fitzhugh would testify.
As King George School is the second largest taxpayer in Sutton, Mr. Hershenson said it was important for the board to hear how it would be affected by the wind farm. And he suggested that when UHS failed to act, the town had to step in and subpoena the headmistress.
Although he didn’t intend to be, Mr. Hershenson became, in his own graphic words, “the last prom date available.”
Throughout Tuesday’s testimony was a motion by UPC to keep Dr. Fitzhugh from testifying. Mr. Kassel repeatedly argued that there was enough evidence for the board to determine if the wind farm would cause the school to close without hearing from Dr. Fitzhugh.
Throughout his arguments, Mr. Kassel implied that UHS had chosen a circumspect route because it didn’t want attorneys looking into its books and asking questions. A more benign motive was offered by Mr. Cotter when he suggested that UHS might be afraid that talk of the school’s closing might turn into a self-fulfilling prophesy.
But the most compelling argument may have rested with Mr. Kassel, who noted that UHS had not provided any information about its intentions in this case. And if it were really worried the school might be forced to close by the presence of a nearby wind farm, he wondered, wouldn’t the company have played a more vigorous role?
Testimony in the case is scheduled to continue Wednesday and Friday.
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