Select Board members from around the state packed a conference room in Montpelier on Saturday. They gathered for a training on how to perform their duties, and one of the main presentations was on the state’s open meetings and public records laws, but it came with a big caveat: 25 percent of the material would likely to be obsolete within weeks, once new open government rules are enacted, according to Jim Barlow, Senior Staff Attorney at Vermont League of Cities and Towns.
This week, the legislature is moving forward on the two bills that could make some of Barlow’s training slides obsolete.
Vermont has long scored poorly in national rankings of governmental integrity. In 2008, the Better Government Association put Vermont in 49th place nationally for strong laws to protect its citizens from arbitrary and harmful governmental activities.
In January, Democratic leaders in the House and Senate joined newly elected Gov. Peter Shumlin and Secretary of State Jim Condos in promising to create more openness in Vermont government.
The public records bill (H. 73) appeared to take its final form Tuesday. On Wednesday, the House is scheduled to vote on the bill as it passed the Senate, with five amendments. Jeanette White, chair of the Senate committee that has worked on the bill, reportedly told her House counterparts that she is comfortable with the amendments, so the bill has a good chance of passing into law in the form it passes the House on Wednesday.
Allen Gilbert is executive director of the Vermont chapter of the American Civil Liberties Union, which has intervened in numerous public records suits, and he hails the bill as “the most significant changes to the public records law since it was passed in 1976.”
One of Peter Shumlin’s campaign pledges centered on a one-word change to the public records law. Under current law, courts “may” require the government to pay legal fees and costs to plaintiffs who prevail in appealing denials of public records requests. Shumlin pledged to change the law to say that courts “shall” award reimbursement of legal fees to successful plaintiffs, and the bill makes that change.
The change from “may” to “shall” created angst, within municipal governments in particular whose staff may lack training in the public records law and the over 200 exemptions to the law. The bill offers a “safe harbor” for public agencies to reconsider their decision to deny a public records request if they are sued. If the public agency capitulates within 20 days of the suit being filed and turns over the documents requested, the courts “may” award plaintiffs legal fees, but they are not required to do so.
A key public records controversy has been whether and when state or municipal government can charge for its work in compiling public records. Current law is clear: the government can charge for copying records, but not for pulling them together for someone to look at and take notes on. On that basis, the Vermont State Employees Association won a lawsuit last year against the administration of then-governor Jim Douglas, which insisted on charging the VSEA over $1,300 just to look at information the VSEA had requested on job cuts and software monitoring state employees’ internet use.
The bill maintains the right to merely inspect any amount of records at no charge, no matter how long it takes the agency to compile them. As under current law, if state workers spend more than 30 minutes copying records, they can charge for the copying.
The hundreds of exemptions to the requirement that government records be public have attracted frequent criticism. The bill forms a study committee of House and Senate members, scheduled to meet over the coming year. Its charge, amongst other things, is to review these exemptions and recommend possible changes.
The bill also sets up a procedure for compiling data on state-level public records requests, including how many are received, whether they are granted or denied, and staff time used in fulfilling them.
The House amendments to be considered Wednesday change the bill as it passed the Senate in the following ways:
- Fees in current law will remain.
- Another “may” to “shall” change: the Senate version allows the Secretary of State to provide expertise and advice to municipalities and the public about the public records law; the House amendment requires the Secretary of State to provide this service.
- Calls for a study of what the Senate had required, that municipal governments appoint public records officers, who would be trained in the intricacies of public records law. With most municipalities having multiple, co-equal elected officials, it was not clear how a municipal public records officer’s authority would work. State agencies must, nonetheless, appoint a public records officer.
- Lifts a restriction on the number of times the study committee meets.
- For municipal-level public records requests, the Senate had specified that the Vermont League of Cities and Towns would conduct a survey of its members on what requests they receive and the outcomes. The House amendment eliminates that survey.
Open meetings bill
The open meetings bill (S. 67) is set to be passed by the House almost unchanged from the way it passed the Senate. The House Government Operations Committee discussed only one change on Tuesday, which may or may not be substantively different from the Senate’s version.
Open meetings law is intended to ensure that the public has access to meetings of public bodies, while specifying some circumstances under which the public may be excluded.
Some of the provisions in the bill simply bring the law into the digital age. Current law allows some members of public bodies to join the meeting by speaker phone or other electronic means; the bill specifies procedures that would allow the entire meeting to take place on a video conference or teleconference, while ensuring that the public has a way to participate.
Current law has left many members of Select Boards and other public bodies scratching their heads about what they are allowed to communicate via email, before the email conversation itself is deemed a “meeting” that must be warned. The bill allows email and telephone conversations for scheduling a meeting, organizing a meeting’s agenda, or distributing materials that will be discussed at a meeting, as long as a public record is created as a result of the communications. However, as before, no substantive discussion of the agenda items is permitted.
Under certain circumstances, public bodies are allowed to exclude members of the public and enter executive session. This provision allows private discussion of personnel matters, purchasing real estate options, and other business negotiations where the other parties could gain an unfair advantage by being able to listen to the deliberations. Journalists have often charged that municipal governments have abused the executive session; the Bennington Banner earlier this year even exhorted local Select Boards to put a resolution on Town Meeting warnings urging stricter adherence to the open meeting law.
The bill creates a novel way to address challenges to specific executive sessions without going to court. If someone challenges an executive session, and the body holding the session acknowledges that they violated open meeting law, the body can simply meet again in public and hold the same discussion, within 35 days. It’s basically a do-over, where the public can observe the second time around.
How well this provision would work remains to be seen. If a Select Board or other public body discusses an issue a second time, this time in public, how similar will that conversation be to the initial conversation? Will the second time be a staged recitation of final positions, while the first was a nuanced exploration of possibilities?
If the executive session is challenged and the public body maintains that it was properly entered into, then the conflict goes to court. The bill contains a provision for awarding legal fees and costs to plaintiffs, if they prevail, but it’s unclear to what extent the court “shall” award the legal fees or “may” do so. The bill says the court “shall” award the legal fees, but it’s followed by an “unless.” If the court finds that the public body had reasonable grounds for thinking that the executive session was merited, and it acted on good faith, then the plaintiffs don’t get reimbursed.
The only apparent conflict remaining between the House and Senate versions of the bill centers on executive sessions to discuss appointing members of a public board, council, or commission. Current law allows, say, Select Boards to go into executive session to discuss who they will appoint to the town’s recreation board or other such body. The Senate version removes that option, while retaining the executive session for discussing hiring town employees or appointing officers who serve individually, such as the zoning administrator. The House Government Operations Committee discussed modifying the Senate’s change, and it is unclear how substantively different their language will be. They are slated to meet Wednesday morning to review draft language.
The Better Government Association report that ranked Vermont 49th for governmental integrity rated states in five areas. Vermont did comparatively well in the areas addressed by these two bills, 12th place for public records and 19th place for open meetings. In the category of campaign finance, where Vermont placed 5th among all states, no bills introduced this session emerged from initial discussions in committees. Vermont’s overall rating was dragged down because it scored a zero on conflict of interest policy and whistleblower protection; no bills have been introduced this session to address either of those areas.
Disclosure: Etnier has interests on both sides of these issues; he works as a journalist and serves on the East Montpelier Select Board.
