There was old Odd Couple Show courtroom scene where Felix Unger expounded upon the dangers of “assuming.” I’d encourage you to watch it because it provides an important context for the premise of this post.

Most people may have some experience with the term “off the record” as it applies to the media. Presumably that experience is not personal because most people do not speak with the media on a regular basis and on the off chance that they are being interviewed for a story, its likely to be a human interest story and there would be no reason to speak off the record.

Regular consumers of the 24 hour news cycle may have been surprised to read that reporter and author Michael Wolff is alleged to have published excerpts in his new book “Fire and Fury: Inside the Trump White House” from sources who thought that they were speaking “off the record.”

Here’s a good general rule of thumb to live by, when communicating with anyone, in person, on the phone, via email, on social media, direct message, text, etc… presume that anything you say can and will be repeated and maybe even recorded and/or distributed. A brief detour. In respect to recording, approximately 11 states require all parties in a conversation to consent to being recorded and to do so without consent is a potential crime. The rest of the states require only one party to consent to a conversation being recorded. Interestingly, Vermont appears to be the only state that does not have a specific statue one way or another and there is no clear case law on the issue ( State v. Geraw, ruled that clandestine recording in a person’s home is illegal, while State v. Brooks held that it is OK to eavesdrop on a conversation taking place in a parking lot).

Last year the Vermont Legislature, passed what’s been referred to as the so called “Reporter’s Shield Law” or “Journalist’s Privilege.” Among other things, the new law allows reporters to refuse to disclose or be compelled from disclosing the name of a source to any branch of government, in respect to pretty much every type of tribunal. But just because reporters cannot be compelled by the government to reveal a source, does not mean that a reporter is bound by law from disclosing that same source voluntarily, for any reason.

The Associated Press (AP) has set very clear principles in respect to anonymous sources. Here are a few excerpts from those principles (emphasis mine):


“Reporters should proceed with interviews on the assumption they are on the record. If the source wants to set conditions, these should be negotiated at the start of the interview. At the end of the interview, the reporter should try once again to move some or all of the information back on the record.”

“Not everyone understands “off the record” or “on background” to mean the same things. Before any interview in which any degree of anonymity is expected, there should be a discussion in which the ground rules are set explicitly.

The AP Principles define sourcing as follows:

On the record. The information can be used with no caveats, quoting the source by name.

Off the record. The information cannot be used for publication.

Background. The information can be published but only under conditions negotiated with the source. Generally, the sources do not want their names published but will agree to a description of their position. AP reporters should object vigorously when a source wants to brief a group of reporters on background and try to persuade the source to put the briefing on the record. These background briefings have become routine in many venues, especially with government officials.

Deep background. The information can be used but without attribution. The source does not want to be identified in any way, even on condition of anonymity.

In general, information obtained under any of these circumstances can be pursued with other sources to be placed on the record.


These principles are also reflected in in the Society of Professional Journalists “position papers.” Principles and position papers are wonderful, but also nearly meaningless when it comes to legal enforceability (unlike a law, statute, rule, regulation or code which are almost aways enforceable in a professional or legal context).

So much of life is built on trust, but as President Reagan famously stated using a repurposed a Russian proverb “Trust, but verify.”  

When speaking with the media make sure that expectations are agreed to upfront. Make sure the reporter specifically agrees to speak “off the record” and make sure to define what that term means for that reporter. Beware of live or recorded (TV or radio) interviews, where “off the record” is virtually nonexistent and difficult to achieve. Don’t be afraid to tell a reporter that you will get back to her or him and in the meantime take the opportunity to seek advice or discuss the contents of the interview with someone else. If you are really concerned, conduct an interview and agree to its terms only via email. Or ask the reporter if he or she minds if you record your conversation (this is a courtesy and as set forth above, probably not legally required).

Those who regularly interact with the media, have usually developed relationships with reporters and both sides know the rules of engagement and if they fail to follow those rules they do so at their own peril. For everyone else, it doesn’t hurt to make sure that all sides share similar expectations.

A few months ago I attended the first meeting of of the Vermont Ethics Commission and blogged about it here (incidentally if you know how to locate the Commission’s website, please drop me a line, I haven’t been able to find it). During the course of that meeting I engaged in an exchange with the Vermont Secretary of State’s Office about executive officers and state employees getting guidance of a confidential nature from the Commission. The Secretary of State tweeted that “transparency isn’t always the answer…. some exceptions are OK.”

I couldn’t agree more. The question is where the line gets drawn. The fact of the matter is that the Public Records Act (PRA) and its federal counterpart the Freedom of Information Act (FOIA)(incidentally it is a pet peeve of mine when people use FOIA as shorthand for the PRA since they contain different standards are are subject to a different body of case law, interpretation and precedent) are increasingly being weaponized. There are those that might argue that the weaponization is a price we pay for a free society, but I’m not so sure.

Over the past week or so there have been two noteworthy examples where both the PRA and FOIA were turned on their respective heads. The first story, as reported by the New York Times, comes from the Environmental Protection Agency (EPA) where career employees who are speaking out about the alleged harm being wrought by current Administration, are having their emails scrutinized — by political operatives with what appears to be an intent to suppress and intimidate. For example the emails sent by a career EPA employee on his last day of work, were requested under FOIA and within the emails the departing employee rebuked the practices of the Administration and indicated to the recipient list that he knew that they shared his views. So while that employee is now presumably collecting his retirement, his colleagues left behind are now potentially subject to additional scrutiny, for an action that they had no control over.

Here in our little corner of the woods, reported by VT Digger (which reminds me I need to send a contribution to the Digger year end fundraising campaign STAT) things took a interesting turn under the PRA. Evidently an confidential report on public safety communications was released to the press without permission. According to Digger, John Quinn, the Chief Information Officer of Vermont, admonished the Public Safety Broadband Commission stating that “I fully expect a public records request of all commission members and members with access to the report, to turn over any communication between commission members and Stephen Whitaker,” ……“You are all subject to the records law as a commission member.”  While I would’t exactly call this a weaponization of the PRA, it clearly represents a unique utilization of the law, wherein the Executive Branch of government is essentially telling one of its many working parts that the PRA can and will be used “against” it. It will be interesting to see whether the Commission members have state issued email addresses or if they use their own. That of course represents a whole host of other issues that were recently touched on right here.

PRA requests come with real costs – – political, financial, societal etc. This is especially the case at the municipal level in Vermont where resources and expertise are by design not as plentiful as the state and federal government, but the PRA applies just the same. We are obviously going through an unusual period in history where “normal” conventions are no longer the norm. The Vermont Supreme Court has long held that “identity and motive of the requestor cannot be considered when weighing access to public documents.” Shlansky v. City of Burlington, 2010 VT 90, ¶ 11 (citing Finberg v. Murnane, 159 Vt. 431, 437 (1992)). Maybe it is time to reconsider that proposition, maybe not. But the opportunity to weigh in is coming up as according to the Secretary of State’s Office, the legislature is looking at a rewrite of Vermont Open Meetings and Public Records Laws in this upcoming session.  Stay tuned…..

We are once again heading into an election year. And as with any election cycle, there are perils and pitfalls that candidates and government employees need to be aware of. One of the least known, but at the same time most consequential laws impacting elections and candidates is the Hatch Act of 1939. The Hatch Act was initially implemented as the U.S. pulled itself out of the Depression and lunged headfirst into WW II as a mechanism to attempt to curb corruption within the Federal Government.

The Hatch Act prohibits federal employees from: 1) Running for partisan office; 2) taking an active part in a partisan campaign; 3) using their official authority to influence an election; 4) soliciting or receiving money in connection with a partisan candidate or election; 5) engaging in political activity while on duty or in a Federal Building.

Just the other day, the former Director of the United States Office of Government Ethics, filed a complaint against Trump Aide Kellyanne Conway, claiming that her statements about the Alabama Senate Race violate the Hatch Act.  Time will tell if his complaint has any teeth or if it will even be acted upon.

Don’t stop reading if you’re not a federal employee, because here’s where things get interesting from a Vermont perspective.  The Hatch Act also applies to state, municipal and in some limited instances even non-profit employees. The good news is that with the passage of the Hatch Act Modernization Act of 2012 (yes Act is repeated twice) the constraints on state and municipal employees have been severely curtailed. It used to be the case that many state or municipal employees whose position was even partially supported by federal funds, was subject to the terms of the Hatch Act in respect to running for partisan office.  With the passage of the 2012 amendments, in order to be covered by Hatch Act, an employee’s position needs to be completely funded by federal loans or grants.

So what’s the big deal with the Hatch Act you ask?  Well if an individual is found to have violated the Hatch Act, the penalty is severe. Either the agency employing the individual has to forfeit federal funds equivalent to 2 years of the employees salary or terminate the employee. You can guess the route that most governmental entities take when faced with a decision between the two.

In a state like Vermont, which receives quite a bit of federal funds, its entirely likely that dozens, if not hundreds of state and municipal employees, even with the 2012 amendments, are still covered by the provisions of the Hatch Act. There was once a time when prior to filing a formal complaint against an employee in Vermont, he or she might have received a caution or warning from an adversary. With the hyper-politicalization of today’s environment, this courtesy is likely going the way of the dinosaurs. Those engaged in partisan politics are increasingly out for blood. As a result, the Hatch Act is being increasingly weaponized, especially since it utilizes an anonymous complaint system, where the complainant is kept confidential (so much for being able to face one’s accuser).

The U.S. Office of Special Counsel (OSC) is the administrative agency (independent of the Department of Justice) that investigates Hatch Act complaints. If you are a state or municipal employee in Vermont, and you have any doubt whatsoever as to whether your position is subject to the Hatch Act, the wisest thing to do before taking any other step towards starting a partisan campaign for office (or engaging in any other prohibited activity) is getting an advisory opinion from the OSC as to whether you are subject to the Hatch Act’s terms.

As a final note, remember the Hatch Act applies only to partisan elections, meaning elections where designation of a political party is a part of the process. That means that it is not applicable to most municipal elections (school board and selectboard) in Vermont (the notable exception being the Burlington City Council), but it is of course applicable to running for state representative or state senate or any county or statewide election that is partisan in nature. And remember, if you plan on running as an independent, it doesn’t matter if others can run in the same contest with a party designation, the Hatch Act is applicable.

Finally, even under the terms of the 2012 amendments to the Hatch Act, state and municipal employees who receive even small amounts of Federal funding who engage in political misconduct such as: 1) using Federal monies to support a campaign; 2) using any equipment, resources or power of office to support a candidacy; and 3) asking subordinates to volunteer or contribute to a campaign, can still be prosecuted under the Act’s terms.

Good luck out there candidates and remember, in politics, as in sports, the best offense is a strong defense…..

The purpose of this blog is not supposed to be political, its a forum to discuss ethics and government in Vermont. If you want politics, you can check out my political blog over at Sugaring Off. With that said, it’s important to discuss the ethical dilemmas (and the associated procedural and policy hurdles) faced by the Burlington City Council last night as it decided who would be the new purchaser for Burlington Telecom. Again for a bit of history on the subject, I’d refer you to Sugaring Off.

With history out of the way, it becomes important to unpack exactly what transpired during the course of the Burlington City Council’s eight hour marathon session.  On November 13, 2017 the die was cast or so we were told by way of this Resolution that set a bidding process in place and brought back bidders who had already been previously excluded by the Council.  Bids called (“letters of intent” or LOI’s) were due “no later than November 20 at 9 a.m.”  Now that’s a pretty specific time on a pretty specific date.

Mayor Weinberger and Councilors

Instead what happened is that the Council opened up with a work session at approximately 5:30 PM in which both of the previous failed bidders, Schurz who teamed up with ZRF, offered commentary not only on their newly submitted bid that was published in time, but then continued to expand on the initial bid, on-the-fly, at the work session. Despite a number of well directed questions from a number of different councilors, there were still many questions left unanswered. One of the big questions left unanswered was raised by Taylor Dobbs, formerly of VPR and soon to be of Seven Days, which is how could the Council agree to sell an asset like BT, where the identities of the investors were unknown? There were a number of breaks that the Council took where councilors broke-up into what appeared to be ad hoc caucuses. Now so long as there was not a quorum (the Council rules define a quorum as a majority of the whole, in the case of a 12 member body 7 or more members) of the Council present. If a quorum isn’t present then the provisions of Vermont’s Open Meeting Law don’t kick in. But remember, laws set the baseline for conduct, not the ceiling. While breaking up into pods may have been legal, as a matter of policy, it was a poor decision. And as a matter of public perception and political intrigue, the optics were horrible, not to mention how future entities seeking to do business with Burlington will construe how Ting and KBTL were treated.

Ting Executives – Michael Goldstein and Monica Webb

If that wasn’t bad enough, what happened next was even worse. Schurz and ZRF came back to the Council, at 11:00 PM, after seemingly having negotiated a new deal out in the hallway and proposed a number of new terms, changed some of the old terms AND changed the lead entity on the bid from ZRF to Schurtz. Remember bids were due on November 20th at 9 AM and here was a new bid, with new terms being proposed at an hour where the Council (and likely a good chunk of the City) is normally in bed and required to the Council to “suspend the rules” (Council meetings end at 10:30 unless 2/3s of the Council votes to suspend the rules).  That bid likely generated this lede from Seven Days – “The Burlington City Council voted 8-2 early Tuesday to select Schurz Communications and ZRF Partners’ bid to buy Burlington Telecom — picking an option that was not on the table at the start of a lengthy and at times testy meeting.” And this one from VT Digger “Burlington Telecom will be sold to Schurz Communications — a last-minute arrangement decided through backdoor political maneuvering at a Burlington City Council meeting. The meeting, which ended in the wee hours of Tuesday morning, was rife with confusion and marked by outbursts.”  Now as a City, a municipal corporation, is that really the kind of publicity you want to be generating if you can avoid it?

Councilor Ali Dieng Questioning the City Attorney

At one point New North End Councilor Dieng referenced an email exchange that he had with the Burlington City Attorney. The essence of his claim was that the City Attorney had informed him that no new bids or altered bids would be allowed after November 20th. I do not know the contents of those emails, but Councilor Dieng’s statements raise a legitimate concern. Look as attorneys we are not perfect. We try to give our clients the best advice possible based on the facts and circumstances at the time that it is given. Advice can change with facts and circumstances. This recent Vermont Supreme Court case out of Winooski held that even if a “charter designates the city attorney as legal advisor to the city manager, it is settled in Vermont and other states that the actual client of the city attorney is the municipality.” The actual client of the city attorney is the city. Now imagine being the city attorney in Burlington. Your client is the City, you are hired and retained by the Mayor and your have 12 partisan Councilors continually asking questions about policy and process. Some decisions are bound to be Solomonic. And to make things even more complicated, any individual councilor can request that their inquiry be kept confidential pursuant to Council Rule 19.

Ultimately the Council didn’t even follow the voting method set forth in their own resolution of that very evening, requiring Councilors to vote for two of the competing entities in the first round of voting. The City Attorney then ruled at the meeting that Councilors couldn’t be forced to vote. Council Rule 16(3) requires – “All requests for resolutions, ordinance and miscellaneous materials, to be prepared by the city attorney must be in the City Attorney’s hands by twelve o’clock noon on the fourth business day (normally Tuesday) preceding a regular, or adjourned regular meeting.” Furthermore, “[t]he city attorney shall deliver to the office of the city clerk all resolutions or ordinances to be submitted no later than twelve o’clock noon of the second business day, (normally Thursday) preceding a regular, or adjourned regular meeting.” Which of course begs the question, how come if the resolution had to be submitted in advance, the issue of voting was not clarified earlier?

One final thought. There was an instance where Councilor Hartnett interrupted Councilor Shannon several times during debate and claimed she was “out of control and going down the wrong path” and later that she was expounding “bullshit.”  This type of engagement has no place in a civil democratic process. There are rules of procedure, but it is up to the Council President or Presiding Officer (in this case the Chief Administrative Officer Beth Anderson was presiding over the meeting because President Knodell wanted to participate in debate) to maintain order and decorum. For an interesting read, take a look at this memorandum written several years ago by the City Attorney’s Office on the way decorum can be kept at Council meetings.

Like politics – – policy and procedure is a complicated game and ethics just adds to the difficulty of keeping the balls in the air. Although this isn’t the blog where I usually expound on pop-culture, it’s clear that the current game the City is playing is a strange one and that the only winning move is….. not to play……

 

The Caladonian Record ran an interesting piece this past weekend entitled “Public Records Request: Blittersdorf Says Standard Will Cost Him $1 Million.”  Although the Record is behind a paywall, the gist of the article was relatively straight forward in that it called into question the ways in which lobbyists seek to influence lawmakers. The article was in part premised on a public records request made by Annette Smith, the Executive Director of the group “Vermonters for a Clean Environment” or VCE. The records request, results of which are posted on the VCE Blog asked for records from the State Senators and Representatives on the legislative committee overseeing the new wind turbine regulations.

What caught my eye was this quote from Smith in the Record “[t]he text messages showed that the lobbyists were telling the legislators questions to ask. This is not unusual, what is unusual is actually seeing the communications.” What struck me as additionally unusual was the informality of the communications within the text messages.

The relationship between the lobbyists and the legislators is nothing new. Although I may at some point take the time to connect the dots between the lobbyists in the emails and the legislators they are communicating with, its not really the subject of this post (nor am I an investigative reporter).

I go back and forth in respect to the “weaponization” of the Public Records Act, sometimes thinking is it for the greater good and at other times believing it discourages average residents from engaging in pubic service. For example if you are volunteering on a board in a small town, is it really fair to have to respond to a public records request covering hundreds or potentially thousands of pages? What’s interesting about the VCE request is that in some instances the legislative council responds, in others the individual legislator responds. And in several instances the disclosure states that legislator X is providing the records but they could “have asserted arguments to withhold them.”

The legislative process is often described as akin to the sausage-making process. In both instances, although the final result is often appreciated, it is somewhat discouraging (and often revolting) when the ingredients are revealed in exquisite detail.

The last post had to do with conflicts of interest. This is a follow-up to that but a little but more subtle. There are really three different types of conflicts of interest. Legal conflicts that are clearly defined by ordinance, policy, rule, statute or otherwise. Ethical conflicts, for which there may be no law against, but ethics dictates against. And political conflicts, which are governed by political will and politics. Within each of these categories there are actual conflicts and also circumstances that give rise to the appearance of a conflict. Best practice would of course dictate that all conflicts be avoided, unless circumstances necessitate otherwise (this is called the doctrine of necessity and is explored a bit in the Markowitz article cited in my last post).

Again we go to a piece by VT Digger, this time a commentary by Mike Smith, a former cabinet level official in the Douglas Administration. Mr. Smith wrote in what appears to be a commentary piece (although it is listed under “Politics” and not “Commentary”) as follows: “Advocates can point to the fact that Doug Hoffer, the state auditor, has come out in support of Keep BT Local in a letter someone posted on Facebook. But it would be highly unlikely for the state auditor to intervene before the Public Utility Commission in this case. In fact, many were surprised by Hoffer’s endorsement. Normally an auditor would be quick to scold a state agency proposing a project under similar terms. Some Vermonters wonder how you can advocate one opinion, even as a private citizen, yet assert a higher standard as state auditor.” (Emphasis mine).

In the comments section to Smith’s piece, Auditor Hoffer responded as follows:

The position of State Auditor is one created pursuant to Chapter II, Section 43 of the Vermont Constitution. The powers of the Auditor are defined in part in 32 V.S.A. §163 and include the following provisions:

“In his or her discretion, conduct a continuing post audit of all disbursements made through the Office of the Commissioner of Finance and Management or the Office of the State Treasurer, including disbursements to a municipality, school supervisory union, school district, or county.” (Emphasis mine).

“Make available to all counties, municipalities, and supervisory unions as defined in 16 V.S.A. § 11(23) and supervisory districts as defined in 16 V.S.A. § 11(24) a document designed to determine the internal financial controls in place to assure proper use of all public funds.”

“Make available to all county, municipality, and school district officials with fiduciary responsibilities an education program.”

An Auditor therefore: 1) audits municipalities; 2) provides guidance on financial controls for municipalities; and 3) provides educational programming for municipalities.

Auditor Hoffer indicates in his comment that the position he is taking on the sale of Burlington Telecom was not as Auditor, but rather as “a 29-year resident of Burlington and a former member and chair of the Burlington Electric Commission.”  That may well be the case, but Mr. Hoffer is still the Auditor. He is the Auditor 24/7/365. He can never stop being Auditor until he is out of office.

If Auditor Hoffer wanted to publicly comment on his preference of the Red Sox vs. the Yankees, he would still be doing so as the State Auditor. However, his opinion AS Auditor would certainly hold no authority or even a remote appearance of authority. While one could potentially doubt the political wisdom of choosing sides in a sporting event, it is hardly likely to create much backlash and certainly not related to any political duties.

The Auditor’s Office in this instance may very well have occasion in the future to officially weigh-in on the sale of Burlington Telecom. And even if it does not have official duties, there have been many Auditors who have used the Office as a bully pulpit to weigh in on important issues of public policy and importance.

All elected officials, when publicly commenting on something even potentially within their bailiwick are doing so in their official capacity. Otherwise it would be impossible to hold them accountable.

On a final and personal note, Auditor Hoffer started off by stating the following: “I’m a little disappointed that you thought it was OK to comment on my support for the KBTL proposal without contacting me first. Isn’t that journalism 101?” The VT Digger piece appears to be commentary. I’ve never heard that commentators need to contact the subjects of their commentary. I engage in a regular commentary on Vermont Public Radio and if that’s the standard, neither my producer, nor anyone else has ever brought it to my attention. For that matter, the editorials appearing in the New York Times, never appear to contact the subjects of the opinion pieces either.

Right now the Burlington City Council is deciding whether it should sell Burlington’s homegrown telecom to either an experienced and highly-regarded Canadian corporation (which has offered $30.5 million) or a well-intentioned, but inexperienced and underfunded local group (which has offered $12 million). My VPR Commentary on the merits of the proceedings, can be found here, but the purpose of this post is of course to look at an ethical issue that just popped up during an unexpected turn in the proceedings.

City Councilor Karen Paul has been actively involved in the new owner search to date, right up to voting to select the two finalists. Councilor Paul then evidently discovered that she had a conflict, on the eve of the final vote. VT Digger quoted her as saying “I have a professional conflict of interest that came to light over the weekend,”….“I’m not able to speak directly to this conflict, but I would like to state that my conflict has nothing whatsoever to do with the parties seeking to buy Burlington Telecom.” If you look at the comments to the Digger article, it is evident that there are a number of folks out there who took umbrage with the seemingly late disclosure; that Councilor Paul did not disclose the details of the conflict; and that the content of the disclosure was somewhat nebulous.  After all, it certainly piques one’s curiosity as to what the conflict could be if it “has nothing whatsoever to do with the parties seeking to buy Burlington Telecom.” It is also notable that the only way to get out of voting on the Burlington City Council, is either not to show up at a meeting (which is against the rules) or to declare a conflict of interest.

Burlington’s conflict of interest policy, happens to be more then just policy, it is in fact special state law. It is special state law because it is enshrined in the City Charter and every municipal charter is a special state law, applicable only to the municipality in question. Section 133 of the Charter states that “[n]o City officer shall participate in any fashion or cast a vote on any matter in which either a direct or indirect conflict of interest is present. Nor shall a City officer participate or vote on any question in which such participation or vote would reasonably create in the mind of an objective person the appearance of a direct or indirect conflict of interest. The presence of a circumstance as above enumerated shall be regarded as a conflict of interest situation. In the event a conflict of interest situation arises, the affected City officer shall at the first opportunity formally declare the existence of the conflict of interest situation. Thereafter, such officer shall not participate in any fashion at any level, formally or informally, in the discussion of the matter, nor cast a vote of any kind at any level with respect to the matter to which the conflict of interest situation applies.” (Emphasis mine).  The Charter goes on to further define direct and indirect conflicts of interest.

It is clear that the Charter does not require a City officer to do anything other then declare a conflict of interest. While it would be interesting to know exactly what the conflict entails, the Charter does not require details. Nor should the person declaring a conflict have do disclose details. It is likely that any conflict will be intertwined in an official’s personal and professional affairs. Elected officials, especially those essentially donating their time, should not be required to reveal their private affairs. In addition, it is certainly possible that someone could in fact owe a professional duty that prohibits disclosure of the conflict details.  Indeed in this instance both VT Digger and the Free Press reported that the conflict was a professional one for Councilor Paul.  She is a CPA so it may well be related to her professional obligations in that capacity.

In 2008 when Deb Markowitz was Secretary of State, her office published a useful guidance on drafting a conflict of interest policy for municipalities called , “Drawing Clear Lines: Adopting Conflict of Interest Ordinances for Local Officials.” Not a bad place to start when looking at drafting an ordinance or even a charter change. Of even more interest is an article that Secretary Markowitz wrote in 1991 for the Vermont Bar Journal entitled “A Crisis in Confidence – Local Boards Under Fire.” I wish I could provide a link, but I couldn’t find a copy online that wasn’t behind a paywall. A few notable quotes include: “Questions regarding the ethical conduct of municipal officials is causing a crisis of confidence in local government.” “High ethical standards must be required for local government officials in order to ensure that governmental activities are conduced in the public’s interest.” “In Vermont, the general lack of guidance as to the specific ethical obligations of local government officials has left a void which is filled, haphazardly, by some local governments, and has left the public (and some local government officials) feeling as though local boards and officials may function without concern for ethical propriety beyond the basic legality of their actions.”

And that was all written pre-internet/social media and certainly did not factor into the equation today’s highly politicized environment. Throw those into the mix and you have, well Burlington……

 

Last week VT Digger had an interesting story about former Attorney General William Sorrell’s “420” license plate.  The story was more or less a puff piece based on the double entendre of the plate number itself. (If you don’t know what 420 means in popular culture you can read up on it here). More or less untouched by the piece was that Sorrell had license plates reserved, for himself and his three sisters. In addition, Sorrell’s plate sat unused for a number of years because he of course had an even lower plate number while he was in office.

Now I don’t know about you, but I’ve always wondered how one acquires a three number plate (101-999). So I did what anyone would do in a similarly situated position and went to look up the statute on point. 23 V.S.A. § 304(c) provides as follows “[t]he Commissioner [of the Department of Motor Vehicles] shall issue registration numbers 101 through 9999, which shall be known as reserved registration numbers….”  What’s interesting about the statutory section is that it actually allows for the low plate numbers to stay within an immediate family, seemingly forever, in that it allows for the interfamilial transfer of the registration numbers.

Still I wondered if anyone could get a three number plate. The statute seemed to allow anyone to apply for such a plate, but I’d never heard of it occurring.  So I filed a public records request.  And I did so in the most transparent way I could think of, on Twitter.  @VTDMV was efficient enough to respond to me in 19 minutes.

Now here’s were things get a little bit strange.  Instead of sending a written response indicating that no such records existed as required by the Public Records Act, 3 V.S.A §318(a)(4), I got a call this morning from the Commissioner of Motor Vehicles, Robert Ide. I’ve never had the pleasure of meeting or corresponding with Commissioner Ide, but he was very pleasant. He explained to me that there were in fact no records responsive to my request. There were no memorandums, emails, policy or procedure that were covered by my request on the issue of three number plates. Commissioner Ide did however indicate to me that three number plates were NOT disbursed to the general public, rather disbursement of those plates were “the purview of the Governor’s Office.” Commissioner Ide also indicated that he tracked this process as being passed down from one Commissioner to another, but again there was nothing at all in writing that he could provide shedding light on how three numbered plates are disbursed.

It’s an interesting issue. Seemingly the statue allows for three numbered plates to be distributed to anyone. “Tradition” however seems to dictate otherwise. It appears that this issue was almost fully litigated back in 1978 by the Vermont Supreme Court in Lague, Inc. v. State but the plaintiff in that case, who was trying to perfect a claim pursuant to the Equal Protection Clause of the U.S. Constitution, lost standing during the pendency of the appeal, because they were granted a three numbered plate.

So if you were wondering how to get a three number plate, you’ll have to wait a little longer, because for now anyway, tradition holds strong.

Democracy is messy. Democracy is hard. But Democracy is hardly messy enough to ask law enforcement to attend a public meeting except in the most extreme of circumstances. And those circumstances do exist from time to time, but from media reports, they didn’t seem to exist at the recent meeting held on Lake Carmi’s (pronounced CAR-my) water quality where Emily Boedecker, the Commissioner of the Department of Environmental Conservation, took the extraordinary step of having two armed game wardens attend.  According to Vermont Digger the Commissioner indicated that the purpose of having the game wardens present was to add “a calming effect and a reminder that it’s a public space.” Armed law enforcement usually does have a calming effect on the actions of rational minded people. It also likely stifles debate and discussion, even if the debate becomes heated at times.  As reported by Digger, Agriculture Secretary Anson Tebbetts described prior meetings as a “good old-fashioned town meeting ‘with lots of engagement.'”

Undoubtedly passions are running high in a community feeling the tensions between deeply-rooted dairy based agriculture and a deeply-rooted tradition of recreation on the Lake. But calling in law enforcement, while it may be legal, should be a last resort, not a starting point. On this issue I speak from some personal experience. During my time on the Burlington City Council, a colleague and I utilized Robert’s Rules of Order to the frustration of the Council President. It was clear we pushed things, but at the same time, its clear that we were acting within the scope of the Rules. The Council President didn’t like the way things were going and called in a police presence, with the intent remove anyone the President believed to be disruptive, including members of the Council itself.  Of course removing members of a parliamentary body without due process before the body, raises its own issues.

Eventually the Burlington City Attorney’s Office weighed in and issued this memorandum.  The then City Attorney (n.b. in a classic tale of one degree of Vermont separation, the City Attorney at the time was Ken Schatz, who is currently the Commissioner of the Vermont Department of Children and Families and hence a colleague of Commissioner Boedecker) decided not to weigh in on the appropriateness of calling law enforcement to our meeting, but found that the Council President had not violated any laws or rules. The Vermont Supreme Court case of State v. Colby, cited in the memorandum, is particularly instructive on behavior that rises to the level of criminal disorderly conduct and requires that “the State must prove that a defendant’s conduct-‘and not the content of the activity’s expression-substantially impair[ed] the effective conduct of a meeting.'” And that’s a pretty high bar to meet.

In the case of the Lake Carmi meeting, law enforcement were in attendance from the beginning. Clearly nobody had engaged in any conduct at that point, for that meeting and needless to say, since there was no conduct, it could not have “substantially impaired” the meeting. It may have been prudent to have law enforcement on stand-by, (close but off-site) but it appears to have been poor judgment to start the meeting with them present.

The law sets the floor for the actions we expect of our public officials, ethics sets a higher standard. Vermont has an open meetings law that encourages public participation and debate. Ethics require high levels of tolerance for debate, even debate that its passionate, heated and emotional.

The Vermont Supreme Court just issued its long awaited opinion regarding public records in the 21st Century. As my 10th Grade history teacher was fond of saying, “Why do we go to the primary source? Because the primary source is primary.” (He also said “Why do we go to the map?…. The map tells us everything”). Sage advice. You can and should read the entire 20 page decision in Toensing v. The Attorney General of Vermont. The Court’s analysis was a relatively straight forward one. If a document, electronic or otherwise, was created in the course of agency business, it is a public record and subject to disclosure, regardless of where it is stored, unless a statutory exemption exists.

At the crux of Toensing was whether staff and officials from the Vermont Attorney general’s office, could be compelled to search through their personal email, for public records. The Court said that they could be. I do not know the backstory behind this lawsuit, but clearly, searching email correspondence is not a difficult task. There may be parameters and limitations based on where the content is stored and what the maintenance schedule for the email system is, as well as other technological hurdles, but my guess is that the vast majority personal email these days is web/cloud based and might actually be easier to search then work based platforms.

Coverage of the decision was of course nearly instantaneous with stories appearing rapidly in Vermont Digger, VPR (where I sometimes offer commentary)  Free Press, and Seven Days. This is not surprising considering the Vermont Journalism Trust (which essentially is Vermont Digger), Caledonian-Record Publishing Co., New England First Amendment Coalition, The Vermont Press Association, and Da Capo Publishing, Inc. (which also essentially is Seven Days). I say not surprising, because the Public Records Act (and its Federal analog the Freedom of Information Act (FOIA)) is a literal treasure trove for the Fourth Estate. If they get the records they request, they have story. If they don’t get the records they request, because the request was denied in whole or in part, they have story. More on this in a subsequent post.

From an ethics in government standpoint, the position taken by the State was a perplexing one. Essentially the State argued that a requestor should start with the presumption, that public employees did not send emails from non-government accounts, and in order to be able to request such records, the requestor would first need to make a showing that an employee had used a private account to transmit or create public records. This of course ends in reasoning contrary to the intent of the Public Records Act. How could a requestor possibly know what does or does not exist? That’s the whole reason why transparency laws were created in the first place. To allow the public (and by extension the media) to determine what exactly does exist and to “publish” it if it is something deemed worthy of public interest.

Public interest is an interesting concept, the California Supreme Court in City of San Jose v. Superior Court, (cited by the Vermont Court) recently stated that “Communications that are primarily personal, containing no more than incidental mentions of agency business, generally will not constitute public records. For example, the public might be titillated to learn that not all agency workers enjoy the company of their colleagues, or hold them in high regard [emphasis mine]. However, an employee’s electronic musings about a colleague’s personal shortcomings will often fall far short of being a ‘writing containing information relating to the conduct of the public’s business.’” Whether gossip is a public record in Vermont, will have to wait until another day.

While the Vermont Supreme Court ultimately determined that in Vermont, government employees must search their private email accounts and certify that they have done the same, they declined to go as far as California and require that an affidavit be submitted as part of the search process. The VSC’s reasoning was essentially that we rely on the representations of employees in record requests all the time, why should a search of their private email be any different?

But it is different! Why? Well why was the employee sending email concerning state government business from a private account in the first instance? There is simply no conceivable reason that I can think of why this would need to occur. Happy to take comments if you can think of one. According to the Vermont Court, “state policy on internet use puts state employees on notice that employees with state email accounts must not routinely use personal email accounts to conduct state business without approval from the Secretary of Administration.” Again, why would a state employee from the governor on down, need to use a personal email address for agency business….ever?

I would suggest that if a government employee is using a private email to conduct public business, there is a reason. I won’t speculate here as to what that reason might be, but it certainly raises questions. And when questions are raised, requiring an affidavit, certainly makes the person signing an affidavit think twice as to what they are representing to the world, “under the pains and penalties of perjury.”