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.”

As previously advertised, yesterday I had the pleasure of observing the inaugural meeting of the Vermont Ethics Commission. As one would expect in a first meeting, most of the discussion was centered around the nuts and bolts of the work that the Commission has before it in the months ahead. Since the Commission, like most similarly situated entities in Vermont are volunteers who get compensated for milage, lunch, a $50 per diem and a hardy “thank you for your public service” the most pressing issue facing the Commission is hiring a Executive Director, who will carry out the vast majority of the Commission’s day to day functions.

So what does the Commission do? At the onset, not all that much. The enabling statute really sets out more of an advisory, gatekeeper roll, with no enforcement powers. While the Commission will have the ability to accept and screen ethics complaints, any complaint with legs will need to be referred out to the appropriate regulatory entity. Since the Commission is an independent (in that it does not report to the Governor) entity of the Executive Branch, compliance with referrals to the legislature (based on allegations concerning legislators) and judiciary (based on allegations concerning government attorneys and judges) is essentially based on the good will of the receiving branch of government. Campaign finance questions get referred to the Attorney General (or theoretically State’s Attorney, but this seems unlikely) and allegations in respect to the to-be-drafted Department of Human Resources’ (DHR) Employee Code of Ethics get sent to Department.

FUN FACT: The DHR is in the process of drafting its own Code of Ethics, at the same time the Commission is charged with drafting a State Code of Ethics in consultation with DHR. Did you follow that? Two codes of ethics. Why do we need two codes of ethics regulating state employees you ask? Well it seems that at least the Commission’s Code will be more of an aspirational guideline, then something that can be used for enforcement purposes.

Another provision of the law concerns the “required” disclosure by candidates for statewide and legislative offices of: 1) sources of personal income; 2) 10% or greater corporate ownership; 3) leases and contracts with the State; 4) a copy of the IRS 1040 tax returns; and 5) any board that the candidate sits on.  Oh and most of these provisions also apply to the candidate’s spouse/domestic partner (a wrinkle that begs for its own blog post).  But here’s the kicker, although the controlling statute states that the candidate “shall” file these disclosures, there is no penalty for not filing the disclosures. Evidently the legislature decided to leave it to the political process, instead of the legal process to figure out the effect of non-compliance.

Campaign finance disclosure “requirements.”

One of the more perplexing outtakes of the meeting is that the Commission can provide written “guidance” to officers and employees, but that the guidance received is confidential (thus creating an exemption to the Vermont Public Records Act) unless the requestor decides to make it public. Now I can understand taking out identifying information (name, agency, etc.) in the guidance, but I would think it is ultimately of fundamental importance that the public be informed of the type of ethics advice being provided by the Commission, to state employees. At the most basic level, if this information is withheld how is the public supposed to evaluate whether the Commission is serving its intended purpose? Especially since in this instance it appears as though that purpose is focused on education and training, rather than penalties and enforcement. When I raised this issue on Twitter, the Vermont Secretary of State’s Office chimed in about encouraging employees to ask for help and acknowledged that in respect to the Public Records Act “transparency isn’t always the answer…some exceptions are ok.” This was an interesting and appreciated comment from an office currently on its 4th annual Transparency Tour. More thoughts on this in an upcoming post.

The Commission has its work cut out for it. Hiring a Executive Director; convincing the public that education and training (rather than enforcement) will be enough; and getting a viable, working entity up and running by January 1, 2018 (the date the powers of the Commission go into effect). I for one am looking forward to following the Commission’s progress to see if it can succeed in this endeavor, within the parameters it’s been given.

The term transparency has become a hackneyed buzzword as it applies to government.  The natural inference is that a transparent government, means an ethical government.  But that begs the question, why can’t we just trust that government, made up of people with good intentions, will just do the right thing? Ultimately government is made up of people, and people even those with the best of intentions, are human and subject to the entire panoply of misfeasance and malfeasance.

The Vermont Ethics Commission will soon be kicking off its inaugural meeting.  The Commission was created by the legislature over this past session and full details on the Commission and its purposes can be found here. Whether the Commission is successful, will ultimately depend on the time and resources it is allotted to carry out its functions.

We are fortunate to live and work in Vermont. Up until now, we have not been plagued with a host of ethical dilemmas like so much of the outside world. But times are changing.  The purpose of this blog is in part to explore that changing world and the flattening of the Earth, that in turn has created complicated ethical dilemmas, even in a small, relatively isolated state like Vermont.

Maple Syrup, Phish and Ben and Jerry’s are nice symbols, but represent the carefully curated, outward projections of our state. Here we’ll take an inward look and hopefully serve as a platform for debate and discussion of what it means to be ethical and how that term is being interpreted by the various entities charged with regulating ethics and associated conduct.

As the name for this post suggests, one of the first codified systems of ethics was the Bible. While that document may have served certain populations well for centuries, it was not designed to cover the complexities of contemporary life. In the posts ahead, we’ll look at some of the constructs that do serve that purpose, explore how they serve it and discuss ways of improving the system.