NEFAC Praises Court Decision Requiring Public Access to Controversial Vermont PSB Hearing

FOR IMMEDIATE RELEASE

CONTACT Justin Silverman | 774.244.2365 | justin@nefirstamendment.org

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Aug. 1 Federal Court Ruling

The New England First Amendment Coalition today praised a federal court decision requiring public access to a hearing on a controversial natural gas pipeline expansion project in Vermont, calling the ruling a strong and much-needed endorsement of the public’s right to know. 

The case involves a Vermont Public Service Board hearing on Aug. 4 to discuss easement rights as part of the contentious pipeline extension proposal by Vermont Gas SystemsThere have been dozens of arrests and some trespass incidents at the homes of the utility’s president, the Public Service Commissioner and at the Vermont Gas headquarters. Scores of protesters disrupted earlier hearings by singing, chanting, clapping and whistling, forcing officials to adjourn without completing their work.

Members of the PSB feared a repeat performance would prevent them from conducting their upcoming condemnation hearing. In an effort to avoid a possible disruption, the board initially ordered the meeting closed to the public entirely. It later agreed to allow only members of the media to attend. Other members of the public would be able to access live video and audio recordings of the hearing off-site or later obtain a transcript. 

“Although the board has proposed various means for public access to the August 4, 2016 hearing, none of those proposals includes public attendance, ” U.S. District Court Chief Judge Christina Reiss wrote in her 17-page decision. “A member of the public will thus be unable to witness first hand the proceedings, observe the demeanor and interaction of the participants, and ‘come and bear witness to what happens beyond the [hearing room] door’. 

Burlington lawyer John Franco, who filed the lawsuit against the PSB on behalf of a woman who wanted to attend the Aug. 4 hearing, said the board did not look for alternative solutions before closing the hearing. His client, who is opposed to the pipeline project, but not among those being disruptive in the past, maintained that she was unlikely to view the live streaming because of limited computer access at her home in Huntington.

Judge Reiss took testimony during a two-hour hearing on Friday and filed her ruling Monday evening. In applying Second Circuit law, the court noted that “there is a presumptive right of public access” for quasi-judicial hearings and made her ruling pursuant to that right and not under Vermont’s open meeting law. While requiring public access to the hearing, the court strongly implied that disruptive protesters could be removed and arrested. It also determined that the PSB is not required to find a larger hearing room to accommodate more spectators — as was requested by the plaintiff — but did say the media, as surrogates of the public, may be granted preferential access.

Justin Silverman, NEFAC’s executive director, said the ruling should serve as a warning to other boards that the public’s right to access government meetings is paramount.  

“There is a big difference between watching a video stream and actually being in the room to see the parties and their reactions firsthand,” Silverman said. “This case is an important reminder that in only the rarest of circumstances should the public’s right to attend these meetings be limited — particularly given the amount of interest in the issues being discussed.”

Mike Donoghue, a member of NEFAC’s Board of Directors, attended the federal court hearing. He praised the ruling and the expeditious manner in which the case was heard.

“It was clear from her questioning at the hearing that Judge Reiss grasped the various legal and technical issues and how the First Amendment is an important part of ensuring the public can attend government proceedings,” said Donoghue, who is also executive director of the Vermont Press Association and a longtime member of the St. Michael’s College journalism department.

Donoghue has been monitoring the case for NEFAC and the VPA since the initial PSB order closing the hearing. NEFAC is offering guidance to government boards and officials to prevent similar closing orders in the future.

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NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.

Our coalition is funded through contributions made by those who value the First Amendment and who strive to keep government accountable. Donations can be made here. Major Supporters of NEFAC for this year include: The Providence Journal Charitable Legacy Fund, The Robertson Foundation, The Boston Globe and Boston University.