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…..

As previously advertised, yesterday I had the pleasure of observing the inaugural meeting of the Vermont Ethics Commission. As one would expect in a first meeting, most of the discussion was centered around the nuts and bolts of the work that the Commission has before it in the months ahead. Since the Commission, like most similarly situated entities in Vermont are volunteers who get compensated for milage, lunch, a $50 per diem and a hardy “thank you for your public service” the most pressing issue facing the Commission is hiring a Executive Director, who will carry out the vast majority of the Commission’s day to day functions.

So what does the Commission do? At the onset, not all that much. The enabling statute really sets out more of an advisory, gatekeeper roll, with no enforcement powers. While the Commission will have the ability to accept and screen ethics complaints, any complaint with legs will need to be referred out to the appropriate regulatory entity. Since the Commission is an independent (in that it does not report to the Governor) entity of the Executive Branch, compliance with referrals to the legislature (based on allegations concerning legislators) and judiciary (based on allegations concerning government attorneys and judges) is essentially based on the good will of the receiving branch of government. Campaign finance questions get referred to the Attorney General (or theoretically State’s Attorney, but this seems unlikely) and allegations in respect to the to-be-drafted Department of Human Resources’ (DHR) Employee Code of Ethics get sent to Department.

FUN FACT: The DHR is in the process of drafting its own Code of Ethics, at the same time the Commission is charged with drafting a State Code of Ethics in consultation with DHR. Did you follow that? Two codes of ethics. Why do we need two codes of ethics regulating state employees you ask? Well it seems that at least the Commission’s Code will be more of an aspirational guideline, then something that can be used for enforcement purposes.

Another provision of the law concerns the “required” disclosure by candidates for statewide and legislative offices of: 1) sources of personal income; 2) 10% or greater corporate ownership; 3) leases and contracts with the State; 4) a copy of the IRS 1040 tax returns; and 5) any board that the candidate sits on.  Oh and most of these provisions also apply to the candidate’s spouse/domestic partner (a wrinkle that begs for its own blog post).  But here’s the kicker, although the controlling statute states that the candidate “shall” file these disclosures, there is no penalty for not filing the disclosures. Evidently the legislature decided to leave it to the political process, instead of the legal process to figure out the effect of non-compliance.

Campaign finance disclosure “requirements.”

One of the more perplexing outtakes of the meeting is that the Commission can provide written “guidance” to officers and employees, but that the guidance received is confidential (thus creating an exemption to the Vermont Public Records Act) unless the requestor decides to make it public. Now I can understand taking out identifying information (name, agency, etc.) in the guidance, but I would think it is ultimately of fundamental importance that the public be informed of the type of ethics advice being provided by the Commission, to state employees. At the most basic level, if this information is withheld how is the public supposed to evaluate whether the Commission is serving its intended purpose? Especially since in this instance it appears as though that purpose is focused on education and training, rather than penalties and enforcement. When I raised this issue on Twitter, the Vermont Secretary of State’s Office chimed in about encouraging employees to ask for help and acknowledged that in respect to the Public Records Act “transparency isn’t always the answer…some exceptions are ok.” This was an interesting and appreciated comment from an office currently on its 4th annual Transparency Tour. More thoughts on this in an upcoming post.

The Commission has its work cut out for it. Hiring a Executive Director; convincing the public that education and training (rather than enforcement) will be enough; and getting a viable, working entity up and running by January 1, 2018 (the date the powers of the Commission go into effect). I for one am looking forward to following the Commission’s progress to see if it can succeed in this endeavor, within the parameters it’s been given.

The term transparency has become a hackneyed buzzword as it applies to government.  The natural inference is that a transparent government, means an ethical government.  But that begs the question, why can’t we just trust that government, made up of people with good intentions, will just do the right thing? Ultimately government is made up of people, and people even those with the best of intentions, are human and subject to the entire panoply of misfeasance and malfeasance.

The Vermont Ethics Commission will soon be kicking off its inaugural meeting.  The Commission was created by the legislature over this past session and full details on the Commission and its purposes can be found here. Whether the Commission is successful, will ultimately depend on the time and resources it is allotted to carry out its functions.

We are fortunate to live and work in Vermont. Up until now, we have not been plagued with a host of ethical dilemmas like so much of the outside world. But times are changing.  The purpose of this blog is in part to explore that changing world and the flattening of the Earth, that in turn has created complicated ethical dilemmas, even in a small, relatively isolated state like Vermont.

Maple Syrup, Phish and Ben and Jerry’s are nice symbols, but represent the carefully curated, outward projections of our state. Here we’ll take an inward look and hopefully serve as a platform for debate and discussion of what it means to be ethical and how that term is being interpreted by the various entities charged with regulating ethics and associated conduct.

As the name for this post suggests, one of the first codified systems of ethics was the Bible. While that document may have served certain populations well for centuries, it was not designed to cover the complexities of contemporary life. In the posts ahead, we’ll look at some of the constructs that do serve that purpose, explore how they serve it and discuss ways of improving the system.