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.

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……