By Joe Choquette
This past legislative session, lawmakers in Vermont passed a bill that they hope will improve the public’s ability to know what state and local governments are doing.
But even as the bill headed to Gov. Peter Shumlin for signature, Secretary of State Jim Condos called out a local government body for voting on a matter by e-mail, without consulting its constituents or holding an emergency meeting in public as the law required. It seems that a local business wanted a street closed for a day and needed an answer quickly; but there was insufficient time to follow the normal process. It would have been inconvenient to hold an emergency meeting at City Hall. Board members claimed they didn’t realize the error and pledged to correct it in open session. There was no penalty. They were granted “a do-over.”
There are two things wrong here. First, government officials should know and follow open meeting laws. Second, when they violate the law — either knowingly or unknowingly — they should suffer some kind of penalty, if only to deter other public bodies from making the same mistake. Unfortunately, the latest legislation addressing the open meeting law, H.497, doesn’t address either of these issues. Lawmakers should try again.
For decades, Vermont has ranked last among all states when it comes to granting the public access to government records and meetings. Two years ago, with the strong support of Shumlin and Condos, the legislature passed a new public records law that improved access to government documents. Since then, the state has seen steady improvements in its rankings for open government. The time has come, however, to make similar improvements in the area of government operations – the public’s right to know what local and state boards are doing when the meet, sometimes improperly, behind closed doors. H.497 falls short of making those improvements.
It is easy to see why so many legislators in the General Assembly lean toward the government’s viewpoint. Many lawmakers serve or have served on local boards and commissions. All of them interact closely with state and local officials who they believe are well-intended. And they are often prodded by a very powerful lobbying group organized by the Vermont League of Cities and Towns, which has at least one member in every district.
With that said, here are several of the problems with H.497:
1. State and local boards that are caught violating the open meeting law will be given a chance for a “do over.”
Nowhere else in Vermont law is there a provision for a “Mulligan.” Vermonters caught polluting the environment, driving drunk, or embezzling money seldom get a free pass. Civic leaders should know and respect the law. Yes, some board members are volunteers, but there is plenty of professional training offered throughout Vermont, and as the saying goes, “ignorance of the law is no excuse.” The Secretary of State, the Vermont League of Cities and Towns, the Vermont School Boards Association, the Vermont Press Association and the New England First Amendment Coalition are among the groups involved in the proper training of officials, the public and the press on the open government laws.
2. The proposed law allows more communication to occur in private. That hurts both open government and public participation.
Under this bill, for example, the records of board members communicating about agendas by e-mail are not considered to be meetings. Yet, by agreeing ahead of time what will be on the agenda, what won’t be on the agenda, who goes first and who goes last, members control the substance of a meeting. And who will know if substantive matters are discussed by e-mail?
3. There are sometimes valid reasons for closed-door meetings, but minutes should be kept for everybody’s protection. There is no such provision in H.497.
We have seen cases in several communities where officials have later admitted that private meetings should have been public. In these cases, the opportunity to understand what occurred during these meetings is lost. The law should instead require minutes to be taken during any closed door meeting. The minutes would be exempt from public disclosure, but only until the issue is resolved or the need for confidentiality passes. That is the law in Massachusetts and other states, and it works well.
4. The penalty for violating the open meeting law needs to be increased.
The current fine for a violation is $500, unchanged since it was established in the 1970s. Over the past 40 years, prosecutors have rarely filed charges, even when a board admits it has violated the law. Even so, the penalty is only imposed after a board stubbornly refuses to admit a mistake and is found liable in court.
5. Finally, it is simply too easy for a public body to conduct uncomfortable business behind closed doors.
Let’s suppose that a local board wanted to conduct its business in secret to protect a member’s interests. Unless an insider squeals and a member of the public takes action, the violations can go on for years. When finally caught, the board can correct the latest violation and get off scot-free, without any penalty, except a pledge not to do it again.
At this point only a gubernatorial veto will prevent the Vermont bill from becoming law. No matter what happens, the legislature needs to return to Montpelier ready to improve this bill and address other unsolved problems, including disputes about board members exchanging text messages or email during meetings to avoid public disclosure. If not, the progress made two years ago toward getting Vermont out of its last place rank for transparency will be lost.
Joe is a lobbyist with Downs Rachlin Martin PLLC, whose clients include the Vermont Press Association, which represents the interests of the 11 daily and more than four dozen non-daily newspapers in Vermont.