There was old Odd Couple Show courtroom scene where Felix Unger expounded upon the dangers of “assuming.” I’d encourage you to watch it because it provides an important context for the premise of this post.

Most people may have some experience with the term “off the record” as it applies to the media. Presumably that experience is not personal because most people do not speak with the media on a regular basis and on the off chance that they are being interviewed for a story, its likely to be a human interest story and there would be no reason to speak off the record.

Regular consumers of the 24 hour news cycle may have been surprised to read that reporter and author Michael Wolff is alleged to have published excerpts in his new book “Fire and Fury: Inside the Trump White House” from sources who thought that they were speaking “off the record.”

Here’s a good general rule of thumb to live by, when communicating with anyone, in person, on the phone, via email, on social media, direct message, text, etc… presume that anything you say can and will be repeated and maybe even recorded and/or distributed. A brief detour. In respect to recording, approximately 11 states require all parties in a conversation to consent to being recorded and to do so without consent is a potential crime. The rest of the states require only one party to consent to a conversation being recorded. Interestingly, Vermont appears to be the only state that does not have a specific statue one way or another and there is no clear case law on the issue ( State v. Geraw, ruled that clandestine recording in a person’s home is illegal, while State v. Brooks held that it is OK to eavesdrop on a conversation taking place in a parking lot).

Last year the Vermont Legislature, passed what’s been referred to as the so called “Reporter’s Shield Law” or “Journalist’s Privilege.” Among other things, the new law allows reporters to refuse to disclose or be compelled from disclosing the name of a source to any branch of government, in respect to pretty much every type of tribunal. But just because reporters cannot be compelled by the government to reveal a source, does not mean that a reporter is bound by law from disclosing that same source voluntarily, for any reason.

The Associated Press (AP) has set very clear principles in respect to anonymous sources. Here are a few excerpts from those principles (emphasis mine):


“Reporters should proceed with interviews on the assumption they are on the record. If the source wants to set conditions, these should be negotiated at the start of the interview. At the end of the interview, the reporter should try once again to move some or all of the information back on the record.”

“Not everyone understands “off the record” or “on background” to mean the same things. Before any interview in which any degree of anonymity is expected, there should be a discussion in which the ground rules are set explicitly.

The AP Principles define sourcing as follows:

On the record. The information can be used with no caveats, quoting the source by name.

Off the record. The information cannot be used for publication.

Background. The information can be published but only under conditions negotiated with the source. Generally, the sources do not want their names published but will agree to a description of their position. AP reporters should object vigorously when a source wants to brief a group of reporters on background and try to persuade the source to put the briefing on the record. These background briefings have become routine in many venues, especially with government officials.

Deep background. The information can be used but without attribution. The source does not want to be identified in any way, even on condition of anonymity.

In general, information obtained under any of these circumstances can be pursued with other sources to be placed on the record.


These principles are also reflected in in the Society of Professional Journalists “position papers.” Principles and position papers are wonderful, but also nearly meaningless when it comes to legal enforceability (unlike a law, statute, rule, regulation or code which are almost aways enforceable in a professional or legal context).

So much of life is built on trust, but as President Reagan famously stated using a repurposed a Russian proverb “Trust, but verify.”  

When speaking with the media make sure that expectations are agreed to upfront. Make sure the reporter specifically agrees to speak “off the record” and make sure to define what that term means for that reporter. Beware of live or recorded (TV or radio) interviews, where “off the record” is virtually nonexistent and difficult to achieve. Don’t be afraid to tell a reporter that you will get back to her or him and in the meantime take the opportunity to seek advice or discuss the contents of the interview with someone else. If you are really concerned, conduct an interview and agree to its terms only via email. Or ask the reporter if he or she minds if you record your conversation (this is a courtesy and as set forth above, probably not legally required).

Those who regularly interact with the media, have usually developed relationships with reporters and both sides know the rules of engagement and if they fail to follow those rules they do so at their own peril. For everyone else, it doesn’t hurt to make sure that all sides share similar expectations.

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……

 

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.