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.