Governor Phil Scott of Vermont just issued this call for volunteers for folks from a wide range of health care professions to volunteer their services during this time of need. I’m not a health care professional, but I’ve worked with health care professionals for most of my legal career on licensure issues. I am offering my services, pro bono, to any Vermont health care professional or health care professional coming to Vermont to offer their services who needs assistance navigating licensing or other regulations during this time of national need. Feel free to email me email@example.com if you need assistance. And thank you for your service.
A few weeks ago the Vermont Secretary of State, Jim Condos, made a mistake. He posted… and then deleted an “offer” regarding a $75 coupon from Costco…. that turned out to be a scam.
Fellow blogger John Walters covered the story but from more of a political bent. As I’ve explained in the past, this blog is focused on legal issues, my (somewhat anemic) political blog can be found here. What are the legal issues raised by this post and subsequent deletion you ask? Thanks for asking, they are myriad.
First, Secretary Condos has been extremely “conservative” in is reading of how the Vermont Open Meeting and Vermont Public Records laws should be interpreted. Here’s a Twitter exchange I had with his office several years ago (not ironically underscoring the importance of preserving public records).
What are the lessons that we learn from this advice? 1) Err on the side of transparency. 2) Beware of meeting in cyberspace. 3) That the Open Meetings Law was written well before social media and never contemplated how do deal with it. I don’t disagree with any of that in principal, but everything can be taken too far. This series of tweets from @VermontSOS was in response to my inquiry about Secretary Condo’s position in his 2016 Guide to Open Meetings where in he admonished public bodies as follows:
A literal reading of this “advice” means that if a quorum of a public body is “on” Facebook or Front Porch Forum, and one of them discusses public business, then that can be construed as an illegal meeting of the body public. Such a reading is not conservative, it strains reason and goes well beyond the plain meaning of the Open Meeting Law, ultimately leading to absurd and irrational consequences.
As part of that conversation I inquired as to how Secretary Condos’s office curated and archived their own tweets and here is the exchange.
That was three years ago, and as far as I can tell, since it is still proffered on the Secretary’s website, there has been no revision to Secretary Condos’s “A Matter of Public Record: A Guide to Vermont’s Public Records Laws” since it was last published in 2014.
Circling back around, brings us back to the present kerfuffle regarding the Costco coupon post. Walter’s interview with the Secretary’s Chief of Staff Eric Covey revealed the following – “So wait. In so doing, did Condos destroy a public record? No, because the post was on his personal page, not his official one. In addition, it had nothing to do with his day job. “Had it been related to his official business, we would have preserved it regardless,” explained Covey.”
Lets break down that statement a little further. “It was on his personal page, not his official one.” OK great. That’s exactly the same logic President Trump used when he tried to block people from his “personal” Twitter account. Hogwash (that’s a legal term) the U.S. Court of Appeals for the Second Circuit said in the matter of Knight First Amendment Institute at Columbia University et. al. v. Donald J. Trump, 302 F.Supp.3d 541 (2nd Cir. 2018). The 2nd Circuit indicated in that instance, President Trump could not block Twitter users pursuant to the 1st Amendment, in part, because even though the President claimed it was his “personal” account it was used by Trump “on almost a daily basis ‘as a channel for communicating and interacting with the public about his administration.'” Id. at 236 (citations omitted). The 2nd Circuit recognized that “[o]f course, not every social media account operated by a public official is a government account. Whether the First Amendment concerns are triggered when a public official uses his account in ways that differs from those presented on [sic] this appeal will in most instances be a fact specific inquiry.” Id. at 236.
In the present instance, Secretary Condos clearly uses his “personal” Facebook account to communicate and interact with the public about his administration, public policy related to his position and politics. In a twist of fate, it even has a “tagged” post about the recent dispute between the Vermont Attorney General and the Secretary of State and Governor on a public records issue.
The first issue raised by Mr. Covey related to a “personal” Facebook account is thus dispelled. What about the statement that it was not related to the Secretary’s day job? That argument does not seem to carry the day. Cybersecurity is paramount to the duties of the Vermont Secretary of State’s Office. He controls databases with some of the most personal and sensitive information possible in the Office of Professional Regulation licensee database and the voter registration database. One need to go no further then the sumer of 2019 where the Secretary delivered the “keynote address on cybersecurity at Route Fifty’s “Building a New Cyber Security Paradigm” summit in Boston, Massachusetts on Thursday, June 6th.” Thus the Secretary is also holding himself out to the public as an expert in cybersecurity. That position does not mesh with posting a scam for Costco without checking its veracity through a simple Google search or looking at Snopes (an excellent resource for quickly debunking scams). The very existence of the Costco Facebook post raises valid questions about cybersecurity capabilities.
That brings us back to the Secretary’s position that in relation to the Open Meetings Law (and presumably the Public Records Act) the government should “err on the side of transparency.” While that might be a great talking point and presumably an easy one to defend, as set forth above, the issue is far more complex then a first glance suggests.
The Secretary deleted a post, from what can clearly be argued is government Facebook account, about a topic that holds a central and fundamental position within the core duties of the Secretary of State’s Office. It certainly passes the straight face test to argue that the Secretary intentionally deleted a public record.
All of this is by way of saying, that the Secretary should be held not only to the very highest standards, but should certainly be held to his own standards in respect to Open Meetings and Public Records. As for the ordinary citizens that compose our legislature and municipal bodies? Well the legislature has exempted itself and its component parts from the public records act. And those public servants, who serve with no or little pay on the Selectboards, DRBs, Planning Commissions etc. of our municipalities? Just remember the above scenario and think about cutting them a little slack if they make a public records mistake.
After all, if you are looking for a rainbow unicorn, sometimes the best your gonna get is ice cream and sprinkles.
Most of my readership is in Vermont (at least according to Google Analytics) but even those of you outside Vermont, even outside of the U.S. may have heard about the most recent news coming from our little corner of the world. No I’m not talking about Bernie Sanders or Howard Dean, but rather the Burlington High School Girls Soccer Team, the Seahorses. On Friday the 18th of October, the Seahorses were “yellow carded” after midfielder Helen Worden (my neighbor by the way) scored a goal in the last regular season game. Four of the team members then took off their jerseys to reveal #EqualPay t-shirts, developed in coordination with Change the Story Vermont a local advocacy group focused in part on eliminating the gap in pay between men and women. (Disclosure, I am involved with the Change the Story, subcommittee “Champs for Change” in my capacity as a Commissioner on the Vermont Commission on Women). The Seahorses’ story has been told over and over again first on Good Morning America, and later catching fire and featured on /in the local Vermont news including VPR, VTDigger, The Burlington Free Press, and Seven Days. Regional media such as NECN and the New York Daily News. National media including NPR, People Magazine, NBC, CNN, CBS, The Hill, USA Today, The Today Show and even Fox News. International coverage at The Daily Mail; a Twitter Campaign by Secret Deodorant; Luna Bar; and shout-outs from Billie Jean King and U.S. Women’s Player Brandi Chastain. I’m not going to attempt to rehash the story that so many other sources have done so well. But I did want to take a moment to look at things from a legal perspective.
Many non-lawyers may not know this, but there is a whole field of “school law” out there. In Vermont there are only a handful of law firms that practice this type of law regularly on behalf of the school districts. I used to work for one of them. Now I typically represent parents and students in matters involving school districts in respect to the Federal Individuals with Disabilities Education Act (IDEA); the Family Educational Rights and Privacy Act (FERPA); the Vermont Public Records Act; and disciplinary matters pursuant to Vermont statutes and regulations. What I’ve yet to handle is a matter pursuant to School Sports Law (which must be a sub-speciality for someone in a larger state).
The Vermont Principals’ Association (VPA) is the regulatory body charged with the oversight of school sports in Vermont. The VPA has adopted the 2019 Girls and Boys Soccer Guide (Soccer Guide). The Soccer Guide is only four pages, but Section II(A) states “the current issue of the National Federation Soccer Rules shall be the official playing rules for the interscholastic soccer among member schools in the State of Vermont, except as varied by the Vermont Soccer Guide.”
Curious, I of course went looking for the National Federation [of State High School Association] Soccer Rules (NFHS Rule Book) only to find that they cost $6.95 (plus tax), which is kind of disappointing because you would think that rules governing public schools would be, well, public, but I guess everyone needs to make a buck. So I purchased the NFHS Rule Book here. The NFHS Rules are a bit longer then the VPA Soccer Guide and clock in at 320 pages. Yes 320. And here’s what I found out. Rule 4.1.2h of the NFHS Soccer Rules Book, states “only those names, patches, emblems, logos or insignias referencing the school are permitted on the team jersey and/or shorts, as well as visible undergarments and goalkeeper pants, except as in 4.1.1e. The player’s name may also appear on the team uniform.” Rule 4.1.1e provides that “One manufacturer’s logo/trademark or reference is permitted on the outside of each item which may not exceed 2 1/4 square inches and may not exceed 21/4 square inches and may not exceed 2 1/4 inches in any dimension. (Subject to the provisions in 4.1.1d).” Rule 4.1.1d provides “if visible apparel is worn under the jersey and/or shorts, it shall be of a similar length for an individual and a solid-like color for the team.” To recap, international branding is allowed, local messaging, no matter how worthy the cause is not. Likely because then a school district would need to be the final arbiter of what constitutes a “worthy cause” and that’s likely an area that schools would prefer not to wade into.
The reports indicate that the Seahorses were yellow carded based on excessive celebration. Rule 12.8.1(c) Situation B states that “[d]uring the match, [a player] after scoring a goal, [the player] celebrates excessively. RULING: “caution [player] for unsporting conduct.” Rule 18, Article 1(c) states that a cautioned player is “[a] player notified by an official that his/her activities are not in the best interests of the contest. Such player must be shown a yellow card and shall leave the field and may be replaced.” (Emphasis added). In the ensuing confusion, the four players were evidently all removed from the field and the other team scored. Here’s where the over legalization of things like high school sports gets complicated. One could easily argue that based on the message, the intent of the players, and the referee’s later actions (set forth below), the players’ actions WERE in the best interests of the contest and the referee’s decision should be overturned (I haven’t looked into appeals of decisions yet, but suspect that they are decided by the VPA). I haven’t seen that argument made as of yet. But then of course, it would have been unlikely that any of this would have made the national and international news.
The Seahorses engaged in an act of civil disobedience, which was recently described by Deputy Burlington Police Chief Jon Murad … “John Rawls will tell us that civil disobedience is really only possible in a near-just state, and it has to be done in a place where there is actually enough justice to have a situation that can be corrected by that act of civil disobedience….” In this instance, justice prevailed. The referee that carded the Seahorses, according to reports, congratulated them and even said he was going to buy a shirt (which you too can purchase right here for the low, low price of $25-$35).
Hopefully we will achieve equal pay here in Vermont and the U.S., sooner rather then later. Hopefully Martin Luther King was correct when he postulated that “the arc of the moral universe is long, but it bends toward justice.” Hopefully justice will be achieved soon.
And those seahorses, the ones that you know, live in the actual sea? What about them? Well they are one of the few species where the male “births” and cares for the young, thereby sharing in the responsibilities with the female seahorse. And isn’t that the perfect metaphor for equal pay and equality in general?
We last left off after a review of the Grey Areas of Professional Licensing in Vermont and the Burden of Proof in Professional Licensing cases. In part three of this series, we will be reviewing who has the authority to “charge” unprofessional conduct. In Vermont, as previously discussed, we have four separate entities that regulate professional discipline. The Vermont Agency of Education regulates teachers. The Vermont Board of Medical Practice (under the umbrella of the Department of Health, Agency of Human Services) regulates medical doctors and a handful of associated professions. The Vermont Professional Responsibility Board (under the umbrella of the Vermont Judiciary) regulates attorneys. And approximately 50 boards and advisors (more on this in another post) regulate the other professions (under the umbrella of the Vermont Secretary of State’s, Office of Professional Regulation “OPR”).
The Agency of Education stands apart from other regulatory agencies in a few notable aspects. First, as is evident from the structures set forth above, the other regulatory agencies are part of several layers of state bureaucratic (this is just a fact, not a criticism) umbrella organizations. The physicians (note osteopaths are regulated by OPR) and attorneys each have a stand alone board that regulates them, but is ultimately connected to a higher entity. And the 50 or so professions regulated by OPR essentially pool their resources to pay for a regulatory infrastructure. Educators stand alone in that they are directly regulated by the Agency of Education.
Another thing that separates educators from the other professions, is that in all other instances: attorneys, physicians, and the OPR professions, the charging entity is an attorney. In other words, when the so called “charges” are filed by the “state” (i.e. the prosecuting authority), an attorney signs off on the charges. The Assistant Attorney Generals (AAGs appointed by the Attorney General) are in charge of prosecuting physicians. Disciplinary Counsel (appointed by the Judiciary) is in charge of prosecuting attorneys. And State Prosecuting Attorneys (appointed by the Secretary of State) are in charge of prosecuting the OPR professions.
Not so with the Agency of Education. 16 V.S.A. § 1701(b) provides in part that “[i]f the Secretary determines a formal charge is warranted, the Secretary shall prepare a formal charge, file it with the hearing panel administrative officer, and cause a copy to be served upon the licensee charged together with a notice of hearing and procedural rights, as provided in this chapter.”
This configuration is somewhat unique and may have the effect of politicizing unprofessional conduct charges. It’s almost certainly the case that the Secretary of Education does not actually draft the charges, but rather an attorney drafts them and the Secretary signs them. The paradigm of the Agency Secretary signing charges is readily apparent in the present matter pending against the Burlington High School guidance counselor.
In the next installment, we will be reviewing the pre-hearing process for the various professions.
Yesterday I received a notice from the Vermont Secretary of State’s Office, Office of Professional Regulation (OPR), informing me (and presumably every other person who is registered as a public notary in Vermont) that there is a new sheriff in town involved in the oversight and regulation of notaries public. Here’s a copy of the notice. All notary registrations are now going to go through OPR and treated just like all the other professions regulated by OPR. That includes registering though the OPR online portal (that will not be live until mid-December). According to the OPR website, the notary registration process is going to be far, far more complex then what it used to be. The entire notary registration process used to consist of a single page form, submitted to the local county clerk, found at the county courthouse.
This new process comes as the result of a massive legislative change, presumably to provide greater oversight to how notaries are “licensed” and monitored. On its face, modernizing the notary process is a good thing. Attorneys have been hearing reports for years about the impact of poor notary practices on their clients. What is less clear is whether notaries need to be monitored as closely and as aggressively as what we think of as traditional professions, such as dentists, psychologists and nurses. This is the guidance from the OPR Website:
That’s far, far more information what was previously requested as part of the single page form referenced above. Even more perplexing, is that notaries will now be subject to disciplinary action, based on both the unique facets of notary practice, as well as, general disciplinary proceedings that apply to all professions. For example, notaries are now required to obtain and utilize a physical stamping device (whereas previously a signature was adequate). 26 V.S.A. § 5370(b) provides that “[i]f a notary public’s stamping device is lost or stolen, the notary public or the notary public’s personal representative or guardian shall notify promptly the Office [OPR] on discovering the device is lost or stolen.” Failure to promptly report constitutes “unprofessional conduct” and may subject the notary to prosecution pursuant to 26 V.S.A. § 5342(a)(5).
However, that’s not the only thing considered “unprofessional conduct.” The new law at 26 V.S.A. § 5342(a)(9) also incorporates 3 V.S.A. § 129a(a) that lists unprofessional conduct applicable to all professions. This means that notaries who do not inform OPR of a new address in 30 days (3 V.S.A. § 129a(a)(14)) have committed unprofessional conduct and are subject to prosecution. It also means that if a notary is convicted of any criminal offense (this includes things such as DUIs and certain Fish and Game violations), they must report this conviction to OPR within 30 days (3 V.S.A. § 129a(a)(11)) or they have engaged in unprofessional conduct. Note that this reporting requirement is different from actually being convicted of a crime related to being a notary (such as a fraud) or being convicted of a felony, both of which constitute a separate prosecutable offense (3 V.S.A. § 129a(a)(10)).
The new licensure for notaries will also include exam and continuing education requirements for most notaries, with some exceptions (notably attorneys). The list of exemptions and exceptions for exams, continuing education and fees can be found at the OPR website here.
Needless to say, I am not sure that the legislature fully contemplated the impact of this legislation given the current state of affairs. There will also be a set of rules promulgated by OPR, but those are not available as of yet. And there will be “advisors” appointed by the Secretary of State to oversee and advise OPR on the notary regulatory process, but those advisors have apparently not been appointed yet.
All of this is by way of saying that there are a tremendous amount of changes coming for notaries, who have likely been practicing the same way for decades, if not centuries. The best offense, is a strong defense. When signing up to be a notary, it is important to know what you are getting into. Notaries beware!
We last left off with a broad comparative analysis between the four different professional regulatory systems in Vermont. Educators, attorneys, physicians and everyone else. I don’t plan on spending too much time, if any, in this series discussing attorney discipline. Namely because Bar Counsel Mike Kennedy is far more versed in this area and has already given a great overview of the Vermont attorney disciplinary system in his blog “Ethical Grounds.” Since the licensing system for Vermont Educators has been in the news as of late, I think it makes sense to start with that model and compare it to some of the others.
One of the interesting things about the disciplinary system for licensed educators, is that as far as I can tell there are no “rules” covering the process of educator discipline. When I use the term rules, I mean in the form of a rule promulgated by an agency, in this case the Agency of Education. The only thing that comes close is Vermont Agency of Education Rule 5700 which discusses the various types of educator discipline, but not the process of educator discipline. Contrast this with the Office of Professional Regulation’s Administrative Rules of Practice; The Rules of the Board of Medical Practice; and of course Vermont Supreme Court Administrative Order 9, which governs attorney disciplinary proceedings.
By contrast, the educator disciplinary process in Vermont is governed strictly by statute. In particular 16 V.S.A. Sections 1698-1708. Frankly that strikes me as a bit odd. Statutes often provide broad based authority, but later rely on the administrative expertise of a particular agency to flesh out the details. For example at the Federal level, enabling statutes for the EPA are far less detailed then the regulations promulgated pursuant to the authority granted by the statute. The only reason I can think of not to have detailed rules governing a license disciplinary process, is that it makes the process more confusing – – by intention. In other words, it is certainly possible that the various shareholders of the educator licensing process wanted the disciplinary process to be somewhat dysfunctional. The more dysfunctional, the more doubt. The more doubt, the more likely that the prosecuting authority is unable to meet the requisite burden of proof.
A brief word on the different types of burden of proof. One could write a whole primer on this issue, but I want to try to keep it simple. There are essentially three different burdens of proof that are used in various forums. The first and probably most well known because of its place in popular culture is “beyond a reasonable doubt.” This is the criminal standard and means that a prosecutor needs to convince each an every member of a jury that the accused is guilty, without leaving much room for doubt. A juror could have “unreasonable doubt” that an accused is innocent, but if that is all, then the prosecution has met its burden. Courts have refused to assign numerical percentages to burdens of proof, but generally speaking “beyond a reasonable doubt” would be between 95-99% or so sure that an accused was guilty. Why is the burden of proof is highest in criminal matters? Because there is so much at stake concerning liberty and in some states, life interests.
The lowest level burden of proof is by a “preponderance of the evidence” often explained by courts as “more likely then not” that an event occurred. This is the standard in civil cases and many administrative cases. Again to quantify, it means that the decider of fact is more than 50% certain that an event occurred.
Finally there is an intermediate burden of proof, proof “clear and convincing evidence.” This is probably the least well known burden of proof, except perhaps for those of us who have received certain traffic and fishing/hunting violations and have had to appear before the Judicial Bureau. This is evidence that establishes that the “truth of the facts asserted is highly probable.” It is difficult to quantify, but best guess would be somewhere in the 75-80% range.
Now how does this all relate to the professional disciplinary system? Professional disciplinary cases against attorneys, pursuant to Administrative Order 9, Rule 11(D)(5)(b) requires proof by “clear and convincing evidence.” Discipline against physicians pursuant to 26 V.S.A. Sec. 1354(c) requires proof by a “preponderance of the evidence.” Similarly prosecutors in the Office of Professional Regulation, need to prove their cases by a “preponderance of the evidence” pursuant to 3 V.S.A. Sec. 129a(c).
Now licensed educators have a very unique, bifurcated burden of proof. Here’s what the statute, 16 V.S.A. Sec. 1704(b) says: “Alleged unprofessional conduct or incompetence. The burden of proof in matters involving alleged unprofessional conduct or incompetence, including denial of a license based on alleged unprofessional conduct or incompetence, shall be on the Secretary by a preponderance of the evidence, except that in the case of revocation or suspension for more than one year, the proof shall be by clear and convincing evidence.” (Emphasis mine).
Getting back to the guidance counselor from Burlington High School, you will remember that the Agency of Education initially sought a 364 day suspension, just one day short of a year. I suspect (without knowing for sure) that the reason for this, was that the prosecution would have had a lower burden of proof. Now that the charges have been amended and the Agency of Education is seeking a revocation of the guidance counselor’s license, the State will need to prove it s case by “clear and convincing evidence.”
This of course begs the question, why do licensed educators have two separate burdens of proof? Isn’t this confusing? I suspect that as alluded to in Part 1, the answer likely has something to do with politics. But we can explore that more in a future post.
The next part of this series will take a look at who has the power to “charge” allegations of unprofessional conduct.
As recently reported by the Burlington Free Press, one of the Burlington High School guidance counselors was charged with six counts of unprofessional conduct. The initial charges ranged from what I would characterize as employment or personnel issues that on their face do not appear to rise to the level of unprofessional conduct, to the very serious allegation of falsifying a student’s record. The Vermont Agency of Education initially sought a 364 day suspension of the counselor’s educator’s license. The original charges were amended to include an additional charge that the Counselor “inappropriately engaged a student witness” and the sanction being sought was increased to a revocation of the Counselor’s license. It is unknown exactly what encompassed the alleged “inappropriate engagement.”
I am not going to spend time trying to dissect these specific allegations, because I certainly do not know what happened and in addition to the Free Press, Seven Days and Vermont Digger have also spent considerable time covering the story. Rather, I would like to examine the professional licensing disciplinary procedure that the Vermont Agency of Education utilizes for licensed educators, as contrasted with the disciplinary procedures utilized for nearly every other type of licensed professional.
In addition to the Agency of Education, there are three other paradigms for professional licensing discipline in Vermont (I am not including the licensed trades such as plumbers and electricians in this analysis). Those licensing agencies include: the Board of Medical Practice (appointed by the governor) that regulates medical doctors and a few other related professions and falls under the aegis of the Vermont Department of Health. The Professional Responsibility Board (appointed by the Vermont Supreme Court) that regulates attorneys and ultimately reports to the Vermont Judiciary, headed up by the Vermont Supreme Court. And the Vermont Office of Professional Regulation (OPR) an interesting little state agency tucked away in the Vermont Secretary of State’s Office. OPR acts as an umbrella for approximately 50 different professions, large and small. In some instances OPR provides services to a gubernatorially appointed licensing board such as the Board of Psychological Examiners and in other instances OPR is the actual licensing entity, working in conjunction with a group of advisors appointed by the Secretary of State such as the licensed midwives.
Full disclosure, I was formerly a prosecuting attorney at OPR, having spent over 10 years there, the last 5 as the Chief Prosecuting Attorney. I have also assisted clients in matters before the Board of Medical Practice and have been appointed to serve as Special Disciplinary Counsel before a panel of the Professional Responsibility Board. My purpose in writing this series is to start a dialogue about professional licensing in Vermont.
The first question a reader may have is – – why are there four separate licensing entities? That’s a great question and likely has to do with an amalgamation of history, separation of powers and context. Harder to establish, but entirely plausible, are the varying amounts of power each of these professions wield regarding the legislative and judicial process. The three “carve-out” professions (lawyers, doctors and teachers) all have dedicated lobbyists tied to their respective professional organizations – – The Vermont Bar Association – – The Vermont Medical Society – – and The Vermont National Education Association.
As we will see in this series, the process of professional licensing and discipline has been shaped and carved differently for each of the four professional licensing models, based on both legal and political influences, as well as public opinion. In part two, we will be discussing how disciplinary charges arise in each one of the professional licensing forums.
If you have any burning questions regarding the various professional licensing disciplinary processes, please feel free to get in touch with me and I will attempt to integrate an answer into this series.
There’s been plenty of press coverage about the Burlington School Board’s Emergency Meeting that was held at 9:00 PM this past Sunday. Sunday also happened to be both Easter and April Fools’ Day. Vermont Digger’s headline characterized the meeting as delaying the release of an ongoing racial bias investigation, while the Burlington Free Press, alluded to whether the meeting itself, as warned and conducted, constituted a violation of Vermont’s Open Meeting Law. The media reports indicate that: 1) there was about 3 hours notice for the meeting; 2) concerns were raised by the School District’s attorney regarding the legality of the meeting; and 3) the nature of the emergency, is that the investigative report for the alleged incident had been completed at 5:30 PM that same day. It is also notable that a number of the Board members had either not run for re-election or had lost their election and their terms were expiring on April 2nd.
Without knowing more of the details, it’s not practicable to give a thoughtful analysis of the actual situation presented by the Burlington Board’s April 1st meeting. As a Burlington resident, I do have a number of unanswered questions about this specific situation including: 1) Why was the investigative report completed at 5:30 PM on Easter Sunday? 2) Who was the person who delayed the process by allegedly refusing to be interviewed? 3) What kind of pressures where placed on that person to cooperate? 4) How the few people who did show up were alerted to the meeting given the late notice (I mean are people really checking the Burlington School District’s website at 6 PM on Easter Sunday or was it pushed out on social media or some other forum)? 5) And of course what do the findings of the investigation entail? Answers to those questions will need to wait until we know more.
What can be answered, not specific to this particular instance, is what constitutes an “emergency” under Vermont Law, such that the Emergency Session provisions of the Open Meeting Law can be satisfied. The ability of a public body to hold emergency sessions in Vermont can be found under 1 V.S.A. 312(b)(3) which states that “[e]mergency meetings may be held without public announcement, without posting of notices, and without 24-hour notice to members, provided some public notice thereof is given as soon as possible before such meeting. Emergency meetings may be held only when necessary to respond to an unforeseen occurrence or condition requiring immediate attention by the public body.”
The Vermont Supreme Court has repeatedly held that when construing a statute, if a definition is not included within the statute itself, then we turn to the plain, ordinary meeting of a word. An emergency is defined by Merriam-Webster as “1) an unforeseen combination of circumstances or the resulting state that calls for immediate action; 2) an urgent need for assistance or relief.” The key to the analysis of defining emergency is whether or not an event was unforeseen. Conversely, unforeseen is defined as “not anticipated or expected.” In a hypothetical situation, it seems difficult to imagine that a public entity that is expecting something to happen could characterize it as unforeseen. Public boards set agendas and meetings all the time and then need to cancel those meetings or amend the agendas because a prerequisite event failed to occur on time.
The Vermont Secretary of State’s Office has advised that emergency sessions are not available unless there is a “true emergency.” Of course one person’s “true emergency” may not necessarily be another’s.
The Vermont Supreme Court has not really addressed the issue of what constitutes a valid Emergency Session head on. It did rule in Katz v. South Burlington School District, 209 VT 6, that the South Burlington School Board, in considering an early separation agreement for its then superintendent, at an Emergency Meeting, held in executive session, that “any procedural violations of the open meeting law were effectively cured,” when the school board later held an properly warned open meeting and took action on the same issue.
The Open Meeting Law also has a “cure” provision set forth in 1 V.S.A. 314 that requires a person who feels they have been aggrieved by a violation of the Open Meeting Law to first notify the public body and request a cure. The public body can also admit a violation and offer their own cure. As set forth above, the Vermont Supreme Court as held that subsequently ratifying the actions of a meeting that violates the Open Meeting Law, at a meeting that comports with it, should cure a violation.
The cure provision of the Open Meetings Law because of its structure, appears to be geared towards unintentional violations. Knowing and intentional violations of the Law are subject to a $500 fine, that per the statute is not just a fine, but a criminal misdemeanor. There is a well developed body of law as to whether facts and circumstances demonstrate a person’s mens rea (the intention or knowledge of person accused of committing a criminal offense). Determination of knowledge and intent is very fact specific, but clearly the more information and facts a board has before it acts, the more knowledge and intent can be imputed.
Time will tell if the Emergency Meeting of the Burlington School Board was a legal one. We need to know more about the facts and circumstances. And whether it was a politically sound decision is of course a different discussion for a different blog.
If any of you have ever baked bread, you know that you are only supposed to knead the dough for so long before it starts to impact the quality of the final product. Some things aren’t meant to be touched, if at all. Related to this is the old Vermont proverb, “if it ain’t broke, don’t fix it.” Sometimes a client will come into the office and we’ll decide the best thing to do in a particular situation is nothing at all. And that’s my position on many of the changes being proposed to Vermont’s Open Meeting Law (OML) and Public Records Act (PRA).
If there is something broken about the PRA it is the applicability to both the State and the political subdivisions thereof, also know as municipalities. Not that municipalities shouldn’t be subject to the PRA, it is just that the PRA as it now exists was written around requests to State Government, not Local Government. Here are a couple of obvious examples. Who is the “head of the agency” (this head of agency language is replicated in the newly proposed revisions to the PRA as well) in respect to municipal government under 1 V.S.A. § 318(a)(3) of the PRA? A town manager? An individual selectboard member? The entire selectboard? How about this, what are intradepartmental and interdepartmental communications in respect to a municipality under1 V.S.A. § 317(a)(17)? How may municipalities in Vermont have departments?
But I digress. The latest proposed changes to the PRA and the OML fly in the face of sound public policy and take us closer to an Orwellian Surveillance State. How you ask? Well lets look at some of the proposed changes.
New language offered defines a “meeting” in part as “each communication within a series of communications of any kind, directly or through intermediaries, to discuss or take action on any business of the public body, even if the individual communication does not involve a quorum of the public body.” That effectively means that selectboard members can no longer get together informally, in groups less then a quorum and then discuss the results of that meeting with anyone else, because how are they going to be able to regulate the dissemination of that discussion beyond the initial group? In larger towns and cities where there are regular caucuses held with less then a quorum, intermediaries will no longer be able to discuss the caucus results with anyone outside of the caucus. Remember, selectboard members are civically engaged, volunteer members of the community. You can only imagine the additional chilling effect this will have on the ability to recruit people to run for these types of positions.
One of the proposed changes to the PRA prohibits any type of fee from being charged for copying records, beyond the physical cost of copying providing “that an agency shall not charge or collect a fee for staff time spent searching for a public record or otherwise include this time when calculating fees…” Public records requests can involve sorting through 10s or 100s or 1000s or even 10s of thousands of emails and other types of documents. That takes time. Right now, the schedule set by the Vermont Secretary of State allows for a charge of 57 cents for each minute of senior-level staff time. For those of you not great at math, that’s $34.20 an hour. And that’s also applicable to the State which carries out its duties “in-house.” What about when a municipality has to hire outside help to comply with a large and/or complex record request?
The pièce de résistance of the proposed changes to the PRA and OML involves the creation of an “Open Government Ombudsman.” Now that sounds fantastic! The Ombudsman is hired by the Ethics Commission that I blogged about here. The same Ethics Commission that is supposed to be overseeing transparency and open government, according to the State Library Website, recently held a “special” public meeting, at a private law firm. In addition, as far as I can tell, as of the date of this publication, the Ethics Commission still does not have a working website (at least not one that I could readily find based on several Google searches).
The new legislation gives the Ombudsman very broad and far reaching powers. In particular, the Ombudsman may “receive and investigate complaints on behalf of persons seeking records under the Public Records Act or compliance with the Open Meeting Law. The Ombudsman shall have authority to compel, by subpoena, the attendance and testimony of witnesses and the production of books and records, and 3 V.S.A. §§ 809a and 809b shall apply to all subpoenas issued under this subdivision.” However, as best as I can tell from the current revisions, there is no forum in which the Ombudsman will actualize these powers. When I say forum, I mean a tribunal such as a court or board or hearing officer, where due process requirements can be satisfied and the matter fairly adjudicated. For example, where are those witnesses going to be testifying? The Ombudsman is a prosecutor, without a court.
But wait, the new changes state that not only does the Ombudsman investigate matters, he or she will also “adjudicate questions of compliance [with the PRA or OML] by issuing a binding written determination.” (Emphasis mine). So the Ombudsman is the investigator, prosecutor and judge? Hmmm, where have we seen this before? But wait there’s a savings clause. The new amendments provide that a “party to an Open Meeting Law or a Public Records Act dispute is entitled to refuse to participate in mediation under subdivision (4) of this section and to refuse to submit to an adjudication under this subdivision.” Does that mean the whole process is voluntary (and therefore meaningless) or just that the governmental entity cannot be compelled to participate in the adjudication, but still have to deal with the consequences of an adverse adjudication?
The amendments require the Ombudsman to “establish policies and procedures for receiving, investigating, mediating, and adjudicating Open Meeting Law and Public Records Act complaints and disputes.” Those policies and procedures should prove to be fascinating.
Looks like there’s still much work to be done. And it remains to be seen, but the heaviest lifting may yet be by person or persons who point out that the best path to take in this instance would be by declining to go down the garden path at all.
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.