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.

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.”