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.