[S]OUTH BURLINGTON — The City Council postponed a decision on joining a lawsuit seeking to keep F-35 fighter jets from being based at the local airport after councilors Monday traded accusations of manipulating or subverting the public process in order to sway the outcome.
The current plaintiffs in the lawsuit are the Stop the F-35 Coalition, the city of Winooski and six Chittenden County residents. South Burlington councilors began discussing whether to join those parties during their June 6 meeting, but with two councilors unwilling to vote yes at the meeting, they decided to postpone a decision until Monday.
But because Monday’s meeting didn’t wrap up until 11 p.m., the councilors decided to hold another one June 22 specifically to hear the public’s opinion. The city could become a plaintiff in the suit, simply offer input as a “friend of the court,” or neither.
Monday’s five-hour meeting devolved into bickering between councilors as they discussed accusations that included violating the open meetings law, conflict of interest and obstruction.
Council Chairwoman Helen Riehle said it was “sad to see.”
“It was a low point in terms of civility and respect for difference of opinions,” Riehle said.
Open meetings law
One item on Monday’s agenda involved a letter that South Burlington business owner Nicole Citro wrote to the Vermont attorney general, asking for an investigation into whether three councilors violated the open meetings law by discussing the lawsuit without speaking to the other two councilors.
In a Burlington Free Press article about the June 6 meeting, Riehle is quoted as saying that council members Meaghan Emery and Tim Barritt told her in advance of the meeting that they really wanted to join the lawsuit.
“So we had at least three, so that would be a majority,” Riehle was quoted in the article. “I didn’t want to bring it up if it was going to be defeated. That would be a waste of everyone’s time.”
Riehle responded at the Monday meeting that she did not violate the open meetings law. “I could not be more clear with my understanding of what constitutes a violation, and nothing of the sort took place,” Riehle said.
According to the South Burlington city charter, the head of the council may, and upon written petition of 15 voters shall, add to the agenda any items requested by nonmembers.
She said an item like the F-35 lawsuit doesn’t just appear on the agenda without discussions behind the scenes.
But Councilor Thomas Chittenden said he felt blindsided by the appearance of the item on the agenda for the June 6 meeting. He and colleague Pat Nowak didn’t find out until June 3, when it appeared there, he said.
Nowak said this a serious issue that will take time to discuss. “We spent more time discussing a park and whether or not to put in a swingset and a slide than we are spending on this issue, and that’s not right,” she said.
Alleged conflict of interest
Citro also requested in her letter that Attorney General William Sorrell investigate any email or correspondence the three city councilors who knew ahead of time may have had with Rosanne Greco and Maida Townsend, two F-35 opponents.
Chittenden said he has done a similar investigation himself and asked the city attorney for a legal opinion on whether Emery has a conflict of interest. Chittenden said he found email correspondence between Emery, Greco and Townsend in a Google Group.
Emery said that between 2012 and 2014, when she was not a council member, she attended a few meetings of the Stop the F-35 Coalition but was never involved in the lawsuit in question. She said she was involved in the Act 250 lawsuit over the F-35s, but not this one.
Emery declined to recuse herself and said she didn’t have a conflict of interest.
Chittenden said, “This is improper,” to which Emery responded, “This is theater.”
The city attorney, Jim Barlow, said that under the South Burlington conflict of interest policy, it’s up to Emery whether to recuse herself. The other councilors cannot force her, he said.
“The charge is ridiculous,” Emery said. “I am not a member of either F-35 coalition.”
She said she knew nothing about this particular lawsuit until May 15. “I have nothing to gain personally or financially if the plaintiffs, of which I am not one, win their case,” she said.
Emery also sought to turn the tables, saying that Nowak and Chittenden had insisted on hearing from a lawyer for the Greater Burlington Industrial Corp., a nonprofit economic development agency that supports having the F-35s based at Burlington International Airport.
“I believe that Mr. Chittenden is accusing me of something he is actually doing,” Emery said.
In response, Nowak said she didn’t even know that the lawyer, Chris Roy, was coming to the meeting. Chittenden said he has had only nine days to understand the 8,000-page lawsuit, which has caused him to seek perspective from all sides.
Chittenden said it would have been improper to hear only from James Dumont, the lawyer representing the plaintiffs.
“I do not understand what Dr. Emery is indirectly accusing me of, and I resent any accusation of impropriety,” Chittenden said. “Public service on the City Council is a lot of work, and people are always mad at me. I have gained nothing financially from my service, and I have no personal interest in this private lawsuit against the U.S. government.”
‘The eleventh hour’
With the first hearing for the lawsuit set for July 5 at the U.S. District Court in Rutland, Barlow agreed with Nowak during the meeting that the city of South Burlington would be “coming in at the eleventh hour.”
“We would be under a very serious time constraint,” Barlow said.
The resolution proposed at the June 6 meeting included the city joining the lawsuit as an intervener, which would give it the same rights and privileges as a plaintiff, Barlow said.
The other option would be to enter into the lawsuit as an amicus, which means it’s not a party to the lawsuit but has an interest and argument it wants the judge to look at, Barlow said.
Dumont said he agreed with everything Barlow said about the lawsuit.
Emery said the councilors had no time to discuss which they might consider doing Monday because Nowak and Chittenden had stalled the meeting.
“I think that’s a stretch,” Nowak said, blaming the delay on the need to interview 30 people for committees prior to the F-35 discussion.
“We needed to have legal opinions voiced,” she added.
About 30 people had signed up to speak during the public forum on the lawsuit question; they will be invited back for the June 22 meeting.
“The city of Winooski wrestled with this exact same issue along the appropriate timeline for the legal proceedings over an 18-month period,” Chittenden said. “They held public hearings, heard testimony and put it to the people as a ballot measure.”
Ultimately Winooski decided to join the lawsuit on only one count out of 10, which is related to the noise the F-35s will bring, he said.
“The city of South Burlington was expected to make the same decision over three days, and it is currently proposed to join all 10 counts of the lawsuit,” Chittenden said.
He said he stands by his remarks that the resolution was created to avoid much public input and presented in a way to hide its impact.
The F-35s are expected to arrive at the airport in South Burlington in the fall of 2019.
