With additional reporting by Jeff Potter.
Originally published in The Commons issue #182 (Wednesday, December 12, 2012).
BRATTLEBORO—A private discussion that was to take place between two Selectboard members and state legislators representing the town was canceled on Monday after a backlash from press and public.
But according to the Secretary of State’s office, which implements the state’s public records and open meeting laws, the gathering did not need to be warned, despite planning by board members to limit attendance by board members to keep a quorum from being reached.
Under state law, if three of the five board members are present at one time, that constitutes an official meeting of the Selectboard, which must be warned legally and open to the public.
According to Vermont statute, “all meetings of a public body are declared to be open to the public at all times,” except in the case of executive sessions.
The definition of a “public body” includes subdivisions of the state (boards, councils, or commissions, for example) or political subdivisions (like a town).
But Deputy Secretary of State Brian Leven said the interpretation is a simple by-the-numbers matter.
“A meeting is a gathering of a quorum of members,” Leven said. “If there are only two [out of five], technically it’s not a meeting.”
Nor, Leven said, would the presence of multiple legislators compel an open meeting, unless the majority of the state House of Representatives and the state Senate were to come to Brattleboro to meet with DeGray and Gartenstein.
The Commons learned of the information through legislators on the invite list.
According to vague descriptions from the text of that email and from several of the legislators, two Selectboard members were planning to discuss the town’s financial issues with the Windham County state legislative delegation and ask the lawmakers to for additional state funding.
On Dec. 7, the newspaper also learned from Selectboard member Ken Schneck that the chair, Dick DeGray, and vice-chair, David Gartenstein, would attend but that other board members could not.
Schneck, the board member who had originally advocated reaching out to the legislators and who had begun the communications efforts several months ago, said he was told that if more than two board members attended, then the town would have to warn it as a public meeting.
Consequently, he said, he was ordered not to attend the same discussion that he helped to organize.
Newspaper staff believed that even if the designation fell within legal boundaries, the planned gathering illustrated a deliberate attempt to circumvent the law by limiting the board’s attendance, said Editor Jeff Potter [Editorial, page D1].
Editors also believe that an argument could be made that the two Selectboard members would have acted as a subcommittee of the board, even if not by that name, essentially taking information from the private conversation back to the full board for later action.
In two conversations over the weekend, DeGray took a decidedly opposite stance, telling two Commons employees that a reporter need not attend the meeting.
According to DeGray, he wanted to have a private conversation with legislators, as he was entitled as a private citizen.
If the situation came to it, DeGray said, he would disinvite Gartenstein to ensure the press would not attend.
On Dec. 9, The Commons also received a call from resident and Town Meeting Member Kurt Daims. He told Editor Jeff Potter he had heard about a “secret meeting” and told Potter he planned to contact community members.
Daims posted an announcement about the discussion to iBrattleboro.
On Dec. 10, Town Manager Barbara Sondag and Assistant Town Manager Patrick Moreland told a reporter and a photographer who showed up at the Municipal Center that that the gathering had been canceled.
Sondag added that a meeting would be rescheduled and would include the full Selectboard.
Secretary of State Jim Condos held a “transparency tour” after he took office in 2011, scheduling a number of meetings for town officials around the state to raise the profile of the state open meeting statutes and the importance of town officials in complying with the letter and the spirit of those laws.
“Secretary Condos is certainly an advocate for open government,” Leven said. “Open meeting laws go a long way to serving those purposes. But they require some flexibility.”
Leven observed that no decisions can be made unless a quorum is present, and having those laws apply to the process of public decisionmaking is where “openness is absolutely central.”
“I understand why interest is heightened,” Leven said. “I think these so-called ‘meetings’ happen all the time. It’s still not a meeting.”
On the other hand, he pointed out, “all elected officials, to the extent they want their actions to be secretive, are ultimately accountable to their voters.”
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