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 purpose of this blog is not supposed to be political, its a forum to discuss ethics and government in Vermont. If you want politics, you can check out my political blog over at Sugaring Off. With that said, it’s important to discuss the ethical dilemmas (and the associated procedural and policy hurdles) faced by the Burlington City Council last night as it decided who would be the new purchaser for Burlington Telecom. Again for a bit of history on the subject, I’d refer you to Sugaring Off.

With history out of the way, it becomes important to unpack exactly what transpired during the course of the Burlington City Council’s eight hour marathon session.  On November 13, 2017 the die was cast or so we were told by way of this Resolution that set a bidding process in place and brought back bidders who had already been previously excluded by the Council.  Bids called (“letters of intent” or LOI’s) were due “no later than November 20 at 9 a.m.”  Now that’s a pretty specific time on a pretty specific date.

Mayor Weinberger and Councilors

Instead what happened is that the Council opened up with a work session at approximately 5:30 PM in which both of the previous failed bidders, Schurz who teamed up with ZRF, offered commentary not only on their newly submitted bid that was published in time, but then continued to expand on the initial bid, on-the-fly, at the work session. Despite a number of well directed questions from a number of different councilors, there were still many questions left unanswered. One of the big questions left unanswered was raised by Taylor Dobbs, formerly of VPR and soon to be of Seven Days, which is how could the Council agree to sell an asset like BT, where the identities of the investors were unknown? There were a number of breaks that the Council took where councilors broke-up into what appeared to be ad hoc caucuses. Now so long as there was not a quorum (the Council rules define a quorum as a majority of the whole, in the case of a 12 member body 7 or more members) of the Council present. If a quorum isn’t present then the provisions of Vermont’s Open Meeting Law don’t kick in. But remember, laws set the baseline for conduct, not the ceiling. While breaking up into pods may have been legal, as a matter of policy, it was a poor decision. And as a matter of public perception and political intrigue, the optics were horrible, not to mention how future entities seeking to do business with Burlington will construe how Ting and KBTL were treated.

Ting Executives – Michael Goldstein and Monica Webb

If that wasn’t bad enough, what happened next was even worse. Schurz and ZRF came back to the Council, at 11:00 PM, after seemingly having negotiated a new deal out in the hallway and proposed a number of new terms, changed some of the old terms AND changed the lead entity on the bid from ZRF to Schurtz. Remember bids were due on November 20th at 9 AM and here was a new bid, with new terms being proposed at an hour where the Council (and likely a good chunk of the City) is normally in bed and required to the Council to “suspend the rules” (Council meetings end at 10:30 unless 2/3s of the Council votes to suspend the rules).  That bid likely generated this lede from Seven Days – “The Burlington City Council voted 8-2 early Tuesday to select Schurz Communications and ZRF Partners’ bid to buy Burlington Telecom — picking an option that was not on the table at the start of a lengthy and at times testy meeting.” And this one from VT Digger “Burlington Telecom will be sold to Schurz Communications — a last-minute arrangement decided through backdoor political maneuvering at a Burlington City Council meeting. The meeting, which ended in the wee hours of Tuesday morning, was rife with confusion and marked by outbursts.”  Now as a City, a municipal corporation, is that really the kind of publicity you want to be generating if you can avoid it?

Councilor Ali Dieng Questioning the City Attorney

At one point New North End Councilor Dieng referenced an email exchange that he had with the Burlington City Attorney. The essence of his claim was that the City Attorney had informed him that no new bids or altered bids would be allowed after November 20th. I do not know the contents of those emails, but Councilor Dieng’s statements raise a legitimate concern. Look as attorneys we are not perfect. We try to give our clients the best advice possible based on the facts and circumstances at the time that it is given. Advice can change with facts and circumstances. This recent Vermont Supreme Court case out of Winooski held that even if a “charter designates the city attorney as legal advisor to the city manager, it is settled in Vermont and other states that the actual client of the city attorney is the municipality.” The actual client of the city attorney is the city. Now imagine being the city attorney in Burlington. Your client is the City, you are hired and retained by the Mayor and your have 12 partisan Councilors continually asking questions about policy and process. Some decisions are bound to be Solomonic. And to make things even more complicated, any individual councilor can request that their inquiry be kept confidential pursuant to Council Rule 19.

Ultimately the Council didn’t even follow the voting method set forth in their own resolution of that very evening, requiring Councilors to vote for two of the competing entities in the first round of voting. The City Attorney then ruled at the meeting that Councilors couldn’t be forced to vote. Council Rule 16(3) requires – “All requests for resolutions, ordinance and miscellaneous materials, to be prepared by the city attorney must be in the City Attorney’s hands by twelve o’clock noon on the fourth business day (normally Tuesday) preceding a regular, or adjourned regular meeting.” Furthermore, “[t]he city attorney shall deliver to the office of the city clerk all resolutions or ordinances to be submitted no later than twelve o’clock noon of the second business day, (normally Thursday) preceding a regular, or adjourned regular meeting.” Which of course begs the question, how come if the resolution had to be submitted in advance, the issue of voting was not clarified earlier?

One final thought. There was an instance where Councilor Hartnett interrupted Councilor Shannon several times during debate and claimed she was “out of control and going down the wrong path” and later that she was expounding “bullshit.”  This type of engagement has no place in a civil democratic process. There are rules of procedure, but it is up to the Council President or Presiding Officer (in this case the Chief Administrative Officer Beth Anderson was presiding over the meeting because President Knodell wanted to participate in debate) to maintain order and decorum. For an interesting read, take a look at this memorandum written several years ago by the City Attorney’s Office on the way decorum can be kept at Council meetings.

Like politics – – policy and procedure is a complicated game and ethics just adds to the difficulty of keeping the balls in the air. Although this isn’t the blog where I usually expound on pop-culture, it’s clear that the current game the City is playing is a strange one and that the only winning move is….. not to play……