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.