It’s been a while.  No blogging since the pandemic started (other then my last piece offering to assist licensed professions with pro bono help during COVID).  It occurs to me that I haven’t been blogging in this strange new world of public meetings being held on Zoom and similar platforms. It was the last special meeting of the Burlington City Council on September 8, 2020 that has awoken me from this slumber.  To be clear, only a court may determine if there has been a violation of Vermont’s Open Meeting Law (OML), but the public body itself can preemptively acknowledge a violation in order to mitigate the damage that the violation has caused and avoid potential criminal charges, attorney’s fees and other litigation costs.

If you live in Vermont, you have by now no doubt heard about the protests going on in Burlington, centered on racial justice, with the singular demand that three Burlington police officers should be terminated because of the way they handled certain incidents.  I was even afforded the opportunity to give a long-form interview on WCAX’s “You Can Quote Me” about the legalities of the different actions that the protestors are engaging in and the 77 page Collective Bargaining Agreement (fancy legal term for employment contract) between the Police Union and the City. I could write for hours on those topics, but today I want to explore Vermont’s OML.

While in the past I’ve devoted a number of posts to discussing the Vermont Public Record’s Act (PRA also often called by its Federal analogue FOIA), only one previous post was devoted exclusively to the OLM.  As I’ve previously opined in this VPR Commentary, the OML is rooted in the Vermont Constitution.  Specifically the Vermont Constitution provides at Chapter I, Article VI “That all power being originally inherent in and consequently derived from the people, therefore, all officers of government, whether legislative or executive, are their trustees and servants; and at all times, in a legal way, accountable to them.” The OML, 1 V.S.A. § 311(a) makes this provision of the Vermont Constitution applicable to all Vermont municipalities and their bodies and subparts.  And hence we come to explore the rabbit hole that the Burlington City Council jumped down on September 8th.

Old Bald Guy Jumping Off Cliff Instead of Rabbit Hole.

The most recent OML kerfuffle was brought into focus by Seven Days Burlington beat reporter Courtney Lamdin and Seven Days Deputy Editor Sacha Goldstein, who filed a OML complaint with the City. At the September 8th meeting, Councilor Jack Hanson sought to invite protestors into a so called “executive session” of the Council meeting. Under the OML, executive sessions are private sessions that are only allowed in very limited circumstances.  That is to say that the public at-large is excluded from executive sessions, so therefore the exceptions are narrow.  On the particular evening in question, a majority (but not all) of the Council voted to go into executive session under exception 1 V.S.A. § 313(a)(3) to discuss “the appointment or employment or evaluation of a public officer or employee, provided that the public body shall make a final decision to hire or appoint a public officer or employee in an open meeting and shall explain its reasons for its final decision during the open meeting.”  (Emphasis mine).  This exception of the OML is often refereed to as going to executive session to discuss “personnel issues.”  In particular to discuss the sole constant demand of the protestors, termination of the three Burlington police officers. This type of exception to the OML requires the public body to make a finding that they need to meet in private because otherwise “premature general public knowledge would clearly place the public body or a person involved at a substantial disadvantage…”

Councilor Hanson began by stating  “if possible it would be really beneficial to invite” the protestors into the executive session.  Councilor Hanson went on to claim that “I think the reason to have that conversation [with the protestors] in executive session is because we are talking about those personnel issues and we are kind of heeding that advice and input [of the protestors]…in terms of what direction we might want to go.”  This is not a valid reason to invite in members of the public to an executive session.

Councilor Hanson then asked to hear from the protestors (who were only identified by their first names, also a possible violation of the OML) in terms of whether or not they are “looking to be included in executive session.”  That is absolutely not relevant to the determination of whether a person should be excluded in executive session. It is fair to say that most people, given the opportunity, would rather speak in private, than in public… which is exactly what the OLM prohibits. The rationale Councilor Hanson offered for hearing from the protestors in executive session was that they could offer information that would be persuasive to the final determination of the Council regarding how the personnel issues with the officers are handled. Also not relevant to the determination of whether the protestors could join an executive session.

Inviting members of the public into an executive session, without reason is sure to cause controversy.  Councilor Chip Mason (an attorney) summed it up when he pointed out the fact that “my phone is blowing up from members of the public that are quite upset that this [the discussion with the protestors] is not going to be done in public.”

Now dear readers is where we take a moment to pause and reflect. In their debate on this issue (which seemed to go on for quite a while), the Council was focused on whether inviting the protestors into the executive session would negate the attorney-client privilege of the legal advice given by the City Attorney. The solution to this issue they thought, would be the bifurcation of the executive session and allowing the protestors to come in, say their piece, and then leave before any legal advice was rendered.  In this instance, the Council was so focused on the trees, that they failed to see the forest.  The trees being the attorney-client privilege, the forest being the purpose of the OLM…to keep meetings open and the public informed.

Councilor Joan Shannon (who has been on the Council for so long (18 years?) she could probably sit for the bar and qualify as an attorney) encapsulated the issue best, questioning “I don’t understand on what basis we are able to go into executive session to hear from members of the public.”  The councilors who voted to go into executive session with the protestors (spoiler) also failed to heed the legal advice of City Attorney Eileen Blackwood that they needed to determine “is there information that you need from them [the protestors] that can’t be given in public session… you are kind of going to need to make a finding to that extent.”

Councilor Franklin Paulino (also an attorney) stated “it is an unprecedented action to just invite someone you want to consult with [into executive session] unless they have special knowledge about the private information … [that is relevant] to executive session.”  Councilors Mason, Shannon and Paulino were the only ones who voted against both the protestors from joining the executive session and when that failed, voting against the executive session itself.

Wonderland was reached when Councilor Shannon asked the protestors “if they have information that they wanted to give us that they could only give in executive session.”  The response from the protestors spokesperson was all telling. “Yes.  I think there is a lot happening here that I think due to the lack of public statement has been misconstrued.” (Emphasis added). Now Friend, I do not know what the spokesperson was thinking, but I do know that we have reached the very crux of the issue.  As has been noted in various news reports (including the WCAX piece referenced above), the protestors have refused to speak to the media. That is of course their right.  But here is the issue, it appears that the protestors were arguing, they they needed to speak to the Council, in public session, because their message was being misconstrued, by the media, because the protestors refused to speak to the media, and thus the protestors could only correct that misconstruction, by having a private meeting with the Council, and shut out the media and the public. Read that a few times and let it sink in. Orwellian.

A quick aside.  I know it was late and people were tired. I also know that most people (even elected officials) don’t like to act as “prosecutors” by asking a lot of pointed questions. Often they stop after the first question is answered, but that is often just the tip of the iceberg. But sometimes it’s necessary to dig deeper. In this instance, Councilor Shannon should have asked WHY the protestors could not share their information in executive session. The answer almost certainly would have demonstrated exactly why inviting the protestors in to public session was problematic from the start.On top of all of that, as far as I could determine, the three protestors that wanted to go into the executive session, specifically stated during an early part of the meeting, when they had a dialogue with the Council, that they couldn’t speak for all the protesters, just give their personal opinions. So when they went into executive session, they were just offering their opinion as three members of the public not on behalf of a group. Put succinctly, they had no basis at all to be in the executive session either as representatives of a group and certainly not as individuals.

Ultimately the protestors reasoned “we believe that we would be able to have a very different conversation if we were in private with the Council and the decision makers…. you need to understand where we stand on this and that is best done in a private dialogue.” (Emphasis mine).  No doubt it would be a very different conversation, the very type of conversation that the OML prohibits, excluding the public and the traditional media (an organ that much of the public still relies on to disseminate public information in digestible format).

Most of the Council (those who voted to invite the protestors into the executive session) almost certainly violated the OML. Under the OML penalties and enforcement section the Council now has 10 days from September 10th to respond (the date this complaint letter was received from Seven Days Associate Editor Sasha Goldstein):

If the Council admits that that there was a violation of the OML, they need to acknowledge “the violation of this subchapter and stating an intent to cure the violation within 14 calendar days.” 1 V.S.A. § 314(b)(2).  An acknowledged violation may be cured pursuant to 1 V.S.A. § 314(b)(4) by: (A) either ratifying, or declaring as void, any action take at or resulting from: (ii) a meeting that a person or the public was wrongfully excluded from attending…. (B) adopting specific measures that actually prevent future violations.”

The Council meets again on September 14, 2020 so the thrilling conclusion of this latest episode of Days of Our City Councilor Lives, is as they say, to be continued……