Municipal and State Government

We last left off with a broad comparative analysis between the four different professional regulatory systems in Vermont.  Educators, attorneys, physicians and everyone else.  I don’t plan on spending too much time, if any, in this series discussing attorney discipline.  Namely because Bar Counsel Mike Kennedy is far more versed in this area and has already given a great overview of the Vermont attorney disciplinary system in his blog “Ethical Grounds.”  Since the licensing system for Vermont Educators has been in the news as of late, I think it makes sense to start with that model and compare it to some of the others.

One of the interesting things about the disciplinary system for licensed educators, is that as far as I can tell there are no “rules” covering the process of educator discipline. When I use the term rules, I mean in the form of a rule promulgated by an agency, in this case the Agency of Education.  The only thing that comes close is Vermont Agency of Education Rule 5700 which discusses the various types of educator discipline, but not the process of educator discipline.  Contrast this with the Office of Professional Regulation’s Administrative Rules of Practice; The Rules of the Board of Medical Practice; and of course Vermont Supreme Court Administrative Order 9, which governs attorney disciplinary proceedings.

By contrast, the educator disciplinary process in Vermont is governed strictly by statute.  In particular 16 V.S.A. Sections 1698-1708.  Frankly that strikes me as a bit odd. Statutes often provide broad based authority, but later rely on the administrative expertise of a particular agency to flesh out the details. For example at the Federal level, enabling statutes for the EPA are far less detailed then the regulations promulgated pursuant to the authority granted by the statute. The only reason I can think of not to have detailed rules governing a license disciplinary process, is that it makes the process more confusing – – by intention. In other words, it is certainly possible that the various shareholders of the educator licensing process wanted the disciplinary process to be somewhat dysfunctional. The more dysfunctional, the more doubt.  The more doubt, the more likely that the prosecuting authority is unable to meet the requisite burden of proof.

A brief word on the different types of burden of proof.  One could write a whole primer on this issue, but I want to try to keep it simple.  There are essentially three different burdens of proof that are used in various forums.  The first and probably most well known because of its place in popular culture is “beyond a reasonable doubt.”  This is the criminal standard and means that a prosecutor needs to convince each an every member of a jury that the accused is guilty, without leaving much room for doubt.  A juror could have “unreasonable doubt” that an accused is innocent, but if that is all, then the prosecution has met its burden.  Courts have refused to assign numerical percentages to burdens of proof, but generally speaking “beyond a reasonable doubt”  would be between 95-99% or so sure that an accused was guilty.  Why is the burden of proof is highest in criminal matters?  Because there is so much at stake concerning liberty and in some states, life interests.

The lowest level burden of proof is by a “preponderance of the evidence” often explained by courts as “more likely then not” that an event occurred.  This is the standard in civil cases and many administrative cases. Again to quantify, it means that the decider of fact is more than 50% certain that an event occurred.

Finally there is an intermediate burden of proof, proof “clear and convincing evidence.”  This is probably the least well known burden of proof, except perhaps for those of us who have received certain traffic and fishing/hunting violations and have had to appear before the Judicial Bureau.  This is evidence that establishes that the “truth of the facts asserted is highly probable.”  It is difficult to quantify, but best guess would be somewhere in the 75-80% range.

Now how does this all relate to the professional disciplinary system?  Professional disciplinary cases against attorneys, pursuant to Administrative Order 9, Rule 11(D)(5)(b) requires proof by “clear and convincing evidence.” Discipline against physicians pursuant to 26 V.S.A. Sec. 1354(c) requires proof by a “preponderance of the evidence.”  Similarly prosecutors in the Office of Professional Regulation, need to prove their cases by a “preponderance of the evidence” pursuant to 3 V.S.A. Sec. 129a(c).

Now licensed educators have a very unique, bifurcated burden of proof. Here’s what the statute, 16 V.S.A. Sec. 1704(b) says: “Alleged unprofessional conduct or incompetence. The burden of proof in matters involving alleged unprofessional conduct or incompetence, including denial of a license based on alleged unprofessional conduct or incompetence, shall be on the Secretary by a preponderance of the evidence, except that in the case of revocation or suspension for more than one year, the proof shall be by clear and convincing evidence.” (Emphasis mine).

Getting back to the guidance counselor from Burlington High School, you will remember that the Agency of Education initially sought a 364 day suspension, just one day short of a year. I suspect (without knowing for sure) that the reason for this, was that the prosecution would have had a lower burden of proof. Now that the charges have been amended and the Agency of Education is seeking a revocation of the guidance counselor’s license, the State will need to prove it s case by “clear and convincing evidence.”

This of course begs the question, why do licensed educators have two separate burdens of proof? Isn’t this confusing? I suspect that as alluded to in Part 1, the answer likely has something to do with politics.  But we can explore that more in a future post. 

The next part of this series will take a look at who has the power to “charge” allegations of unprofessional conduct.

There’s been plenty of press coverage about the Burlington School Board’s Emergency Meeting that was held at 9:00 PM this past Sunday. Sunday also happened to be both Easter and April Fools’ Day. Vermont Digger’s headline characterized the meeting as delaying the release of an ongoing racial bias investigation, while the Burlington Free Press, alluded to whether the meeting itself, as warned and conducted, constituted a violation of Vermont’s Open Meeting Law. The media reports indicate that: 1) there was about 3 hours notice for the meeting; 2) concerns were raised by the School District’s attorney regarding the legality of the meeting; and 3) the nature of the emergency, is that the investigative report for the alleged incident had been completed at 5:30 PM that same day. It is also notable that a number of the Board members had either not run for re-election or had lost their election and their terms were expiring on April 2nd.

Without knowing more of the details, it’s not practicable to give a thoughtful analysis of the actual situation presented by the Burlington Board’s April 1st meeting. As a Burlington resident, I do have a number of unanswered questions about this specific situation including: 1) Why was the investigative report completed at 5:30 PM on Easter Sunday? 2) Who was the person who delayed the process by allegedly refusing to be interviewed? 3) What kind of pressures where placed on that person to cooperate? 4) How the few people who did show up were alerted to the meeting given the late notice (I mean are people really checking the Burlington School District’s website at 6 PM on Easter Sunday or was it pushed out on social media or some other forum)? 5) And of course what do the findings of the investigation entail? Answers to those questions will need to wait until we know more.

What can be answered, not specific to this particular instance, is what constitutes an “emergency” under Vermont Law, such that the Emergency Session provisions of the Open Meeting Law can be satisfied. The ability of a public body to hold emergency sessions in Vermont can be found under 1 V.S.A. 312(b)(3) which states that “[e]mergency meetings may be held without public announcement, without posting of notices, and without 24-hour notice to members, provided some public notice thereof is given as soon as possible before such meeting. Emergency meetings may be held only when necessary to respond to an unforeseen occurrence or condition requiring immediate attention by the public body.”

The Vermont Supreme Court has repeatedly held that when construing  a statute, if a definition is not included within the statute itself, then we turn to the plain, ordinary meeting of a word. An emergency is defined by Merriam-Webster as “1) an unforeseen combination of circumstances or the resulting state that calls for immediate action; 2) an urgent need for assistance or relief.”  The key to the analysis of defining emergency is whether or not an event was unforeseen. Conversely, unforeseen is defined as “not anticipated or expected.”  In a hypothetical situation, it seems difficult to imagine that a public entity that is expecting something to happen could characterize it as unforeseen. Public boards set agendas and meetings all the time and then need to cancel those meetings or amend the agendas because a prerequisite event failed to occur on time.

The Vermont Secretary of State’s Office has advised that emergency sessions are not available unless there is a “true emergency.” Of course one person’s “true emergency” may not necessarily be another’s.

The Vermont Supreme Court has not really addressed the issue of what constitutes a valid Emergency Session head on. It did rule in Katz v. South Burlington School District, 209 VT 6, that the South Burlington School Board, in considering an early separation agreement for its then superintendent, at an Emergency Meeting, held in executive session, that “any procedural violations of the open meeting law were effectively cured,” when the school board later held an properly warned open meeting and took action on the same issue.

The Open Meeting Law also has a “cure” provision set forth in 1 V.S.A. 314 that requires a person who feels they have been aggrieved by a violation of the Open Meeting Law to first notify the public body and request a cure.  The public body can also admit a violation and offer their own cure.  As set forth above, the Vermont Supreme Court as held that subsequently ratifying the actions of a meeting that violates the Open Meeting Law, at a meeting that comports with it, should cure a violation.

The cure provision of the Open Meetings Law because of its structure, appears to be geared towards unintentional violations. Knowing and intentional violations of the Law are subject to a $500 fine, that per the statute is not just a fine, but a criminal misdemeanor. There is a well developed body of law as to whether facts and circumstances demonstrate a person’s mens rea (the intention or knowledge of person accused of committing a criminal offense). Determination of knowledge and intent is very fact specific, but clearly the more information and facts a board has before it acts, the more knowledge and intent can be imputed.

Time will tell if the Emergency Meeting of the Burlington School Board was a legal one. We need to know more about the facts and circumstances. And whether it was a politically sound decision is of course a different discussion for a different blog.

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.

We are once again heading into an election year. And as with any election cycle, there are perils and pitfalls that candidates and government employees need to be aware of. One of the least known, but at the same time most consequential laws impacting elections and candidates is the Hatch Act of 1939. The Hatch Act was initially implemented as the U.S. pulled itself out of the Depression and lunged headfirst into WW II as a mechanism to attempt to curb corruption within the Federal Government.

The Hatch Act prohibits federal employees from: 1) Running for partisan office; 2) taking an active part in a partisan campaign; 3) using their official authority to influence an election; 4) soliciting or receiving money in connection with a partisan candidate or election; 5) engaging in political activity while on duty or in a Federal Building.

Just the other day, the former Director of the United States Office of Government Ethics, filed a complaint against Trump Aide Kellyanne Conway, claiming that her statements about the Alabama Senate Race violate the Hatch Act.  Time will tell if his complaint has any teeth or if it will even be acted upon.

Don’t stop reading if you’re not a federal employee, because here’s where things get interesting from a Vermont perspective.  The Hatch Act also applies to state, municipal and in some limited instances even non-profit employees. The good news is that with the passage of the Hatch Act Modernization Act of 2012 (yes Act is repeated twice) the constraints on state and municipal employees have been severely curtailed. It used to be the case that many state or municipal employees whose position was even partially supported by federal funds, was subject to the terms of the Hatch Act in respect to running for partisan office.  With the passage of the 2012 amendments, in order to be covered by Hatch Act, an employee’s position needs to be completely funded by federal loans or grants.

So what’s the big deal with the Hatch Act you ask?  Well if an individual is found to have violated the Hatch Act, the penalty is severe. Either the agency employing the individual has to forfeit federal funds equivalent to 2 years of the employees salary or terminate the employee. You can guess the route that most governmental entities take when faced with a decision between the two.

In a state like Vermont, which receives quite a bit of federal funds, its entirely likely that dozens, if not hundreds of state and municipal employees, even with the 2012 amendments, are still covered by the provisions of the Hatch Act. There was once a time when prior to filing a formal complaint against an employee in Vermont, he or she might have received a caution or warning from an adversary. With the hyper-politicalization of today’s environment, this courtesy is likely going the way of the dinosaurs. Those engaged in partisan politics are increasingly out for blood. As a result, the Hatch Act is being increasingly weaponized, especially since it utilizes an anonymous complaint system, where the complainant is kept confidential (so much for being able to face one’s accuser).

The U.S. Office of Special Counsel (OSC) is the administrative agency (independent of the Department of Justice) that investigates Hatch Act complaints. If you are a state or municipal employee in Vermont, and you have any doubt whatsoever as to whether your position is subject to the Hatch Act, the wisest thing to do before taking any other step towards starting a partisan campaign for office (or engaging in any other prohibited activity) is getting an advisory opinion from the OSC as to whether you are subject to the Hatch Act’s terms.

As a final note, remember the Hatch Act applies only to partisan elections, meaning elections where designation of a political party is a part of the process. That means that it is not applicable to most municipal elections (school board and selectboard) in Vermont (the notable exception being the Burlington City Council), but it is of course applicable to running for state representative or state senate or any county or statewide election that is partisan in nature. And remember, if you plan on running as an independent, it doesn’t matter if others can run in the same contest with a party designation, the Hatch Act is applicable.

Finally, even under the terms of the 2012 amendments to the Hatch Act, state and municipal employees who receive even small amounts of Federal funding who engage in political misconduct such as: 1) using Federal monies to support a campaign; 2) using any equipment, resources or power of office to support a candidacy; and 3) asking subordinates to volunteer or contribute to a campaign, can still be prosecuted under the Act’s terms.

Good luck out there candidates and remember, in politics, as in sports, the best offense is a strong defense…..