Secretary of State Jim Condos is finishing up his "Vermont Transparency Tour" this fall before the Legislature reviews exemptions to the public records law in January. VTD/Josh Larkin"
BRATTLEBORO — Local elected officials, who serve on Selectboards, planning commissions and school boards, must navigate state statutes, but as legal lay people, they are often at sea when they negotiate the narrows of legal interpretation.
Public records and open meeting laws in particular raise sticky issues for local officials. Questions often arise over which town documents are public or whether a casual conversation among selectboard members constitutes a quorum — and an unwarned public meeting.
Secretary of State Jim Condos and Deputy Secretary Brian Leven were on hand in Brattleboro last month to help answer questions like these and outline changes to Vermont’s sunshine laws. Brattleboro was the sixth stop on the Vermont Transparency Tour.
Condos launched the tour to help town officials understand changes to the public records and open meeting laws that were made in the last legislative session.
As someone who “came up through the ranks of local government,” he understands that issues of access affect all levels of government, Condos told Brattleboro officials.
The public’s right to know
The state’s open meeting and public records laws are derived from the Vermont Constitution.
The salient excerpt? “That all power being originally inherent in and consequently derived from the people, therefore, all officers of government, whether legislative or executive, are their trustees and servants; and at all times, in a legal way, accountable to them.”
Condos said Vermont’s open meeting and public records laws “are some of our most important, because they allow us direct access to the [government] decisions that affect us.”
State and local records must be released to the public, “even though such examination may cause inconvenience or embarrassment,” Condos said, quoting from state statute.
If an open meeting or public documents challenge goes to court, said Leven, the Vermont courts generally err on the side of openness and disclosure.
The burden of proof lies with the state or local agency denying access, he said.
“You really have to use common sense and always keep in mind that the courts have so far said that whenever there is a doubt, they will err on the side of openness,” Condos said.
Can a meeting not be a meeting?
Condos warned Selectboards must refrain from talking shop whenever a quorum — three or more members — is present. An impromptu gathering with enough members present could violate the open meeting law, he said.
If, for example, more than three Selectboard members were sitting in the audience for the Transparency Tour, they could individually speak and ask questions, Condos said. But if the members started chatting as a group, especially about town business, then their conversation slipped into the territory of an unwarned meeting, he said.
In response to an audience member’s question about holding emergency meetings, Condos said the board can meet without notice.
“You should try to provide notice,” he said, but added that there is some leeway in the law.
Condos said that in a case like Tropical Storm Irene, the state sent guidelines to the towns about unwarned emergency meetings.
In general, boards can meet once because of an emergency, he said. But if the board decides to meet again or adopt a resolution around regular meetings during the emergency, then that emergency meeting shifts into a special or regular meeting that requires public notice.
Leven said that in general, boards are not entitled to hold sessions in private without meeting the standards of executive session dictated by law.
If a town board enters executive session, it needs to enter decisions into the minutes, Leven said.
The law also states that selectboards can meet via electronic means, such as a chat room, providing that the gathering satisfies open meeting law. But, he added, online discussions rarely offer sufficient access to the public.
If the warned meeting has adjourned, is it still a meeting?
Yes, said Condos. As long as a quorum of members is talking town business, a meeting is legally a meeting.
Condos also advised boards that state law allows for everyone in the public to speak.
“You have to give people an opportunity to speak,” he said.
Selectboard chairs can impose time limits, he said, relating how some board members have responded to this requirement with a panicked “but we’ll be at the Town Hall until midnight.”
To which Condos responded: “So what?”
“That’s your responsibility as local government,” he said.
Meeting minutes: an obligation
Condos reminded officials that the minutes of their meetings stand as a “history of your board.”
Vermont law also requires the minutes, even if only a photocopy of the originals or other draft forms, be available for inspection by the public within five days of the meeting, he said.
Condos learned that lesson the hard way when he served as chair of the South Burlington City Council. Before he left the council in 2007, he voted on the city manager’s retirement package. The vote, however, was not recorded in the minutes. The city manager retired in 2010 and started collecting his pension.
When the new city manager and the City Council combed through the South Burlington budget, they did not find the vote that awarded the outgoing manager his retirement package. They challenged legitimacy of the manager’s retirement benefits.
After a year-long discussion, the City Council restored the retirement package.
“As my dad said, ‘When you make a mistake, own up to it, learn from it, and move on,’” said Condos. “You really need to have those minutes be accurate and reflect the motions taken.”
Also, Condos reminded the audience that the media has the same access to documents as members of the public.
A spring cleaning for the sunshine laws
Vermont’s open meeting and public records laws were enacted in 1976, but the statutes hadn’t been significantly upgraded until this year.
As of July, state law requires towns to pay attorneys’ fees and other legal costs in public records disputes if a court finds that a municipality has improperly blocked access to public documents.
The law now allows towns to charge for staff time when it takes more than 30 minutes to fulfill a request. It also clarifies that traffic tickets and citations are “explicitly public.”
The law also provides right-to-know training for public officials, allows towns to redact legally private (exempt) information, and requires records requests to be filled or denied within three days.
The senior state senator from Windham County, Jeanette White, helped spearhead the changes as part of her role as chair of the Senate Committee on Government Operations.
White said the legislature plans an overhaul of another section of the public records law — the exemptions for withholding information.
Condos said the public records law has a list of 40 exemptions. Some of the exemptions overlap with federal law, and 239 types of information may now be withheld from Vermont public records. The Secretary of State’s website lists 221 statutes affecting public access to records.
White said her committee is going through the exemptions to determine if that information should remain exempt. A Public Records Study Committee recommended 75 of the exemptions for review.
For White, reducing the total number of exemptions is not as important as determining that “what’s listed as exempt truly is exempt.”
Public records often don’t have a custodian, another issue that White hopes to solve.
In towns where voters elect a selectboard and positions like town clerk, she said, the public can find itself blocked from records. If the elected town clerk refuses a public records request, for example, not even the selectboard can force the clerk to hand over the record.
White also introduced a bill this biennium which intends to clarify when a public body may enter executive session. The legislation passed the Senate this year, and awaits consideration in the House of Representatives when the Legislature reconvenes in January.
A long fight
The Senate Committee on Government Operations’ changes follow a decade’s worth of frustration with Vermonters’ access to meetings and public records.
The Vermont Press Association had pushed for upgrades to the state’s right-to-know laws for over a decade.
Their efforts met resistance from the Vermont League of Cities and Towns and the Vermont attorney general’s office, the entities that represent local and state officials in public records disputes.
Nationally, Vermont has ranked in the gutter on transparency.
In 2010, the U.S. Public Interest Research Group gave the state an F for online budget transparency, and Vermont ranked 49th in the nation in the 2008 Better Government Association’s Alper Integrity Index in the areas of law: open records, whistleblower protections, campaign finance, open meetings, and conflicts of interest.
For more information about Vermont’s public records law, go to http://vermont-archives.org/govhistory/governance/PublicRecords/
Read the story on VTDigger here: Going public 101: Condos takes his transparency spiel on the road.