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.

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.

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.”