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.

A few months ago I attended the first meeting of of the Vermont Ethics Commission and blogged about it here (incidentally if you know how to locate the Commission’s website, please drop me a line, I haven’t been able to find it). During the course of that meeting I engaged in an exchange with the Vermont Secretary of State’s Office about executive officers and state employees getting guidance of a confidential nature from the Commission. The Secretary of State tweeted that “transparency isn’t always the answer…. some exceptions are OK.”

I couldn’t agree more. The question is where the line gets drawn. The fact of the matter is that the Public Records Act (PRA) and its federal counterpart the Freedom of Information Act (FOIA)(incidentally it is a pet peeve of mine when people use FOIA as shorthand for the PRA since they contain different standards are are subject to a different body of case law, interpretation and precedent) are increasingly being weaponized. There are those that might argue that the weaponization is a price we pay for a free society, but I’m not so sure.

Over the past week or so there have been two noteworthy examples where both the PRA and FOIA were turned on their respective heads. The first story, as reported by the New York Times, comes from the Environmental Protection Agency (EPA) where career employees who are speaking out about the alleged harm being wrought by current Administration, are having their emails scrutinized — by political operatives with what appears to be an intent to suppress and intimidate. For example the emails sent by a career EPA employee on his last day of work, were requested under FOIA and within the emails the departing employee rebuked the practices of the Administration and indicated to the recipient list that he knew that they shared his views. So while that employee is now presumably collecting his retirement, his colleagues left behind are now potentially subject to additional scrutiny, for an action that they had no control over.

Here in our little corner of the woods, reported by VT Digger (which reminds me I need to send a contribution to the Digger year end fundraising campaign STAT) things took a interesting turn under the PRA. Evidently an confidential report on public safety communications was released to the press without permission. According to Digger, John Quinn, the Chief Information Officer of Vermont, admonished the Public Safety Broadband Commission stating that “I fully expect a public records request of all commission members and members with access to the report, to turn over any communication between commission members and Stephen Whitaker,” ……“You are all subject to the records law as a commission member.”  While I would’t exactly call this a weaponization of the PRA, it clearly represents a unique utilization of the law, wherein the Executive Branch of government is essentially telling one of its many working parts that the PRA can and will be used “against” it. It will be interesting to see whether the Commission members have state issued email addresses or if they use their own. That of course represents a whole host of other issues that were recently touched on right here.

PRA requests come with real costs – – political, financial, societal etc. This is especially the case at the municipal level in Vermont where resources and expertise are by design not as plentiful as the state and federal government, but the PRA applies just the same. We are obviously going through an unusual period in history where “normal” conventions are no longer the norm. The Vermont Supreme Court has long held that “identity and motive of the requestor cannot be considered when weighing access to public documents.” Shlansky v. City of Burlington, 2010 VT 90, ¶ 11 (citing Finberg v. Murnane, 159 Vt. 431, 437 (1992)). Maybe it is time to reconsider that proposition, maybe not. But the opportunity to weigh in is coming up as according to the Secretary of State’s Office, the legislature is looking at a rewrite of Vermont Open Meetings and Public Records Laws in this upcoming session.  Stay tuned…..

The Caladonian Record ran an interesting piece this past weekend entitled “Public Records Request: Blittersdorf Says Standard Will Cost Him $1 Million.”  Although the Record is behind a paywall, the gist of the article was relatively straight forward in that it called into question the ways in which lobbyists seek to influence lawmakers. The article was in part premised on a public records request made by Annette Smith, the Executive Director of the group “Vermonters for a Clean Environment” or VCE. The records request, results of which are posted on the VCE Blog asked for records from the State Senators and Representatives on the legislative committee overseeing the new wind turbine regulations.

What caught my eye was this quote from Smith in the Record “[t]he text messages showed that the lobbyists were telling the legislators questions to ask. This is not unusual, what is unusual is actually seeing the communications.” What struck me as additionally unusual was the informality of the communications within the text messages.

The relationship between the lobbyists and the legislators is nothing new. Although I may at some point take the time to connect the dots between the lobbyists in the emails and the legislators they are communicating with, its not really the subject of this post (nor am I an investigative reporter).

I go back and forth in respect to the “weaponization” of the Public Records Act, sometimes thinking is it for the greater good and at other times believing it discourages average residents from engaging in pubic service. For example if you are volunteering on a board in a small town, is it really fair to have to respond to a public records request covering hundreds or potentially thousands of pages? What’s interesting about the VCE request is that in some instances the legislative council responds, in others the individual legislator responds. And in several instances the disclosure states that legislator X is providing the records but they could “have asserted arguments to withhold them.”

The legislative process is often described as akin to the sausage-making process. In both instances, although the final result is often appreciated, it is somewhat discouraging (and often revolting) when the ingredients are revealed in exquisite detail.

Last week VT Digger had an interesting story about former Attorney General William Sorrell’s “420” license plate.  The story was more or less a puff piece based on the double entendre of the plate number itself. (If you don’t know what 420 means in popular culture you can read up on it here). More or less untouched by the piece was that Sorrell had license plates reserved, for himself and his three sisters. In addition, Sorrell’s plate sat unused for a number of years because he of course had an even lower plate number while he was in office.

Now I don’t know about you, but I’ve always wondered how one acquires a three number plate (101-999). So I did what anyone would do in a similarly situated position and went to look up the statute on point. 23 V.S.A. § 304(c) provides as follows “[t]he Commissioner [of the Department of Motor Vehicles] shall issue registration numbers 101 through 9999, which shall be known as reserved registration numbers….”  What’s interesting about the statutory section is that it actually allows for the low plate numbers to stay within an immediate family, seemingly forever, in that it allows for the interfamilial transfer of the registration numbers.

Still I wondered if anyone could get a three number plate. The statute seemed to allow anyone to apply for such a plate, but I’d never heard of it occurring.  So I filed a public records request.  And I did so in the most transparent way I could think of, on Twitter.  @VTDMV was efficient enough to respond to me in 19 minutes.

Now here’s were things get a little bit strange.  Instead of sending a written response indicating that no such records existed as required by the Public Records Act, 3 V.S.A §318(a)(4), I got a call this morning from the Commissioner of Motor Vehicles, Robert Ide. I’ve never had the pleasure of meeting or corresponding with Commissioner Ide, but he was very pleasant. He explained to me that there were in fact no records responsive to my request. There were no memorandums, emails, policy or procedure that were covered by my request on the issue of three number plates. Commissioner Ide did however indicate to me that three number plates were NOT disbursed to the general public, rather disbursement of those plates were “the purview of the Governor’s Office.” Commissioner Ide also indicated that he tracked this process as being passed down from one Commissioner to another, but again there was nothing at all in writing that he could provide shedding light on how three numbered plates are disbursed.

It’s an interesting issue. Seemingly the statue allows for three numbered plates to be distributed to anyone. “Tradition” however seems to dictate otherwise. It appears that this issue was almost fully litigated back in 1978 by the Vermont Supreme Court in Lague, Inc. v. State but the plaintiff in that case, who was trying to perfect a claim pursuant to the Equal Protection Clause of the U.S. Constitution, lost standing during the pendency of the appeal, because they were granted a three numbered plate.

So if you were wondering how to get a three number plate, you’ll have to wait a little longer, because for now anyway, tradition holds strong.

The Vermont Supreme Court just issued its long awaited opinion regarding public records in the 21st Century. As my 10th Grade history teacher was fond of saying, “Why do we go to the primary source? Because the primary source is primary.” (He also said “Why do we go to the map?…. The map tells us everything”). Sage advice. You can and should read the entire 20 page decision in Toensing v. The Attorney General of Vermont. The Court’s analysis was a relatively straight forward one. If a document, electronic or otherwise, was created in the course of agency business, it is a public record and subject to disclosure, regardless of where it is stored, unless a statutory exemption exists.

At the crux of Toensing was whether staff and officials from the Vermont Attorney general’s office, could be compelled to search through their personal email, for public records. The Court said that they could be. I do not know the backstory behind this lawsuit, but clearly, searching email correspondence is not a difficult task. There may be parameters and limitations based on where the content is stored and what the maintenance schedule for the email system is, as well as other technological hurdles, but my guess is that the vast majority personal email these days is web/cloud based and might actually be easier to search then work based platforms.

Coverage of the decision was of course nearly instantaneous with stories appearing rapidly in Vermont Digger, VPR (where I sometimes offer commentary)  Free Press, and Seven Days. This is not surprising considering the Vermont Journalism Trust (which essentially is Vermont Digger), Caledonian-Record Publishing Co., New England First Amendment Coalition, The Vermont Press Association, and Da Capo Publishing, Inc. (which also essentially is Seven Days). I say not surprising, because the Public Records Act (and its Federal analog the Freedom of Information Act (FOIA)) is a literal treasure trove for the Fourth Estate. If they get the records they request, they have story. If they don’t get the records they request, because the request was denied in whole or in part, they have story. More on this in a subsequent post.

From an ethics in government standpoint, the position taken by the State was a perplexing one. Essentially the State argued that a requestor should start with the presumption, that public employees did not send emails from non-government accounts, and in order to be able to request such records, the requestor would first need to make a showing that an employee had used a private account to transmit or create public records. This of course ends in reasoning contrary to the intent of the Public Records Act. How could a requestor possibly know what does or does not exist? That’s the whole reason why transparency laws were created in the first place. To allow the public (and by extension the media) to determine what exactly does exist and to “publish” it if it is something deemed worthy of public interest.

Public interest is an interesting concept, the California Supreme Court in City of San Jose v. Superior Court, (cited by the Vermont Court) recently stated that “Communications that are primarily personal, containing no more than incidental mentions of agency business, generally will not constitute public records. For example, the public might be titillated to learn that not all agency workers enjoy the company of their colleagues, or hold them in high regard [emphasis mine]. However, an employee’s electronic musings about a colleague’s personal shortcomings will often fall far short of being a ‘writing containing information relating to the conduct of the public’s business.’” Whether gossip is a public record in Vermont, will have to wait until another day.

While the Vermont Supreme Court ultimately determined that in Vermont, government employees must search their private email accounts and certify that they have done the same, they declined to go as far as California and require that an affidavit be submitted as part of the search process. The VSC’s reasoning was essentially that we rely on the representations of employees in record requests all the time, why should a search of their private email be any different?

But it is different! Why? Well why was the employee sending email concerning state government business from a private account in the first instance? There is simply no conceivable reason that I can think of why this would need to occur. Happy to take comments if you can think of one. According to the Vermont Court, “state policy on internet use puts state employees on notice that employees with state email accounts must not routinely use personal email accounts to conduct state business without approval from the Secretary of Administration.” Again, why would a state employee from the governor on down, need to use a personal email address for agency business….ever?

I would suggest that if a government employee is using a private email to conduct public business, there is a reason. I won’t speculate here as to what that reason might be, but it certainly raises questions. And when questions are raised, requiring an affidavit, certainly makes the person signing an affidavit think twice as to what they are representing to the world, “under the pains and penalties of perjury.”