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…..

The last post had to do with conflicts of interest. This is a follow-up to that but a little but more subtle. There are really three different types of conflicts of interest. Legal conflicts that are clearly defined by ordinance, policy, rule, statute or otherwise. Ethical conflicts, for which there may be no law against, but ethics dictates against. And political conflicts, which are governed by political will and politics. Within each of these categories there are actual conflicts and also circumstances that give rise to the appearance of a conflict. Best practice would of course dictate that all conflicts be avoided, unless circumstances necessitate otherwise (this is called the doctrine of necessity and is explored a bit in the Markowitz article cited in my last post).

Again we go to a piece by VT Digger, this time a commentary by Mike Smith, a former cabinet level official in the Douglas Administration. Mr. Smith wrote in what appears to be a commentary piece (although it is listed under “Politics” and not “Commentary”) as follows: “Advocates can point to the fact that Doug Hoffer, the state auditor, has come out in support of Keep BT Local in a letter someone posted on Facebook. But it would be highly unlikely for the state auditor to intervene before the Public Utility Commission in this case. In fact, many were surprised by Hoffer’s endorsement. Normally an auditor would be quick to scold a state agency proposing a project under similar terms. Some Vermonters wonder how you can advocate one opinion, even as a private citizen, yet assert a higher standard as state auditor.” (Emphasis mine).

In the comments section to Smith’s piece, Auditor Hoffer responded as follows:

The position of State Auditor is one created pursuant to Chapter II, Section 43 of the Vermont Constitution. The powers of the Auditor are defined in part in 32 V.S.A. §163 and include the following provisions:

“In his or her discretion, conduct a continuing post audit of all disbursements made through the Office of the Commissioner of Finance and Management or the Office of the State Treasurer, including disbursements to a municipality, school supervisory union, school district, or county.” (Emphasis mine).

“Make available to all counties, municipalities, and supervisory unions as defined in 16 V.S.A. § 11(23) and supervisory districts as defined in 16 V.S.A. § 11(24) a document designed to determine the internal financial controls in place to assure proper use of all public funds.”

“Make available to all county, municipality, and school district officials with fiduciary responsibilities an education program.”

An Auditor therefore: 1) audits municipalities; 2) provides guidance on financial controls for municipalities; and 3) provides educational programming for municipalities.

Auditor Hoffer indicates in his comment that the position he is taking on the sale of Burlington Telecom was not as Auditor, but rather as “a 29-year resident of Burlington and a former member and chair of the Burlington Electric Commission.”  That may well be the case, but Mr. Hoffer is still the Auditor. He is the Auditor 24/7/365. He can never stop being Auditor until he is out of office.

If Auditor Hoffer wanted to publicly comment on his preference of the Red Sox vs. the Yankees, he would still be doing so as the State Auditor. However, his opinion AS Auditor would certainly hold no authority or even a remote appearance of authority. While one could potentially doubt the political wisdom of choosing sides in a sporting event, it is hardly likely to create much backlash and certainly not related to any political duties.

The Auditor’s Office in this instance may very well have occasion in the future to officially weigh-in on the sale of Burlington Telecom. And even if it does not have official duties, there have been many Auditors who have used the Office as a bully pulpit to weigh in on important issues of public policy and importance.

All elected officials, when publicly commenting on something even potentially within their bailiwick are doing so in their official capacity. Otherwise it would be impossible to hold them accountable.

On a final and personal note, Auditor Hoffer started off by stating the following: “I’m a little disappointed that you thought it was OK to comment on my support for the KBTL proposal without contacting me first. Isn’t that journalism 101?” The VT Digger piece appears to be commentary. I’ve never heard that commentators need to contact the subjects of their commentary. I engage in a regular commentary on Vermont Public Radio and if that’s the standard, neither my producer, nor anyone else has ever brought it to my attention. For that matter, the editorials appearing in the New York Times, never appear to contact the subjects of the opinion pieces either.

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.