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 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……

 

Democracy is messy. Democracy is hard. But Democracy is hardly messy enough to ask law enforcement to attend a public meeting except in the most extreme of circumstances. And those circumstances do exist from time to time, but from media reports, they didn’t seem to exist at the recent meeting held on Lake Carmi’s (pronounced CAR-my) water quality where Emily Boedecker, the Commissioner of the Department of Environmental Conservation, took the extraordinary step of having two armed game wardens attend.  According to Vermont Digger the Commissioner indicated that the purpose of having the game wardens present was to add “a calming effect and a reminder that it’s a public space.” Armed law enforcement usually does have a calming effect on the actions of rational minded people. It also likely stifles debate and discussion, even if the debate becomes heated at times.  As reported by Digger, Agriculture Secretary Anson Tebbetts described prior meetings as a “good old-fashioned town meeting ‘with lots of engagement.'”

Undoubtedly passions are running high in a community feeling the tensions between deeply-rooted dairy based agriculture and a deeply-rooted tradition of recreation on the Lake. But calling in law enforcement, while it may be legal, should be a last resort, not a starting point. On this issue I speak from some personal experience. During my time on the Burlington City Council, a colleague and I utilized Robert’s Rules of Order to the frustration of the Council President. It was clear we pushed things, but at the same time, its clear that we were acting within the scope of the Rules. The Council President didn’t like the way things were going and called in a police presence, with the intent remove anyone the President believed to be disruptive, including members of the Council itself.  Of course removing members of a parliamentary body without due process before the body, raises its own issues.

Eventually the Burlington City Attorney’s Office weighed in and issued this memorandum.  The then City Attorney (n.b. in a classic tale of one degree of Vermont separation, the City Attorney at the time was Ken Schatz, who is currently the Commissioner of the Vermont Department of Children and Families and hence a colleague of Commissioner Boedecker) decided not to weigh in on the appropriateness of calling law enforcement to our meeting, but found that the Council President had not violated any laws or rules. The Vermont Supreme Court case of State v. Colby, cited in the memorandum, is particularly instructive on behavior that rises to the level of criminal disorderly conduct and requires that “the State must prove that a defendant’s conduct-‘and not the content of the activity’s expression-substantially impair[ed] the effective conduct of a meeting.'” And that’s a pretty high bar to meet.

In the case of the Lake Carmi meeting, law enforcement were in attendance from the beginning. Clearly nobody had engaged in any conduct at that point, for that meeting and needless to say, since there was no conduct, it could not have “substantially impaired” the meeting. It may have been prudent to have law enforcement on stand-by, (close but off-site) but it appears to have been poor judgment to start the meeting with them present.

The law sets the floor for the actions we expect of our public officials, ethics sets a higher standard. Vermont has an open meetings law that encourages public participation and debate. Ethics require high levels of tolerance for debate, even debate that its passionate, heated and emotional.

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.”