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Secretary of State: No such thing as ‘unofficial’ record at a public meeting

BRATTLEBORO—Selectboard chair David Gartenstein’s statement at the Aug. 4 site visits, which called into question the status of public comment in the meeting, left some members of the commenting public frustrated and confused.

Gartenstein convened the special Selectboard meeting with a caveat: since the voice recorder used to tape meetings had been left at the Municipal Center, public comment at the meeting would not become part of that meeting’s “official record.”

The board held the meeting [“Disharmony lot,” News, Aug. 6] to visit the five potential locations under consideration as sites for a town skateboard park.

At a previous Selectboard meeting, the board had encouraged members of the public to attend the site visit and offer their comments.

A quorum of board members — three or more, as defined by state law — was present at the meeting. No decisions were made during the site visit. Executive Secretary Jan Anderson took minutes and posted the draft minutes to the town’s website.

Under Vermont open meeting law, the Aug. 4 board meeting qualified as an open, and therefore official, meeting.

While Gartenstein said public comment would not become part of the official record, some audience members heard that the comments, or presumed that the entire meeting, was off the record.

However, according to Secretary of State Jim Condos, there is no such thing as an unofficial meeting or unofficial record.

In practice, however, the meeting fell into a gray area. It was an official meeting, it was open to the public, and a record was taken in the form of minutes.

The minutes, however, did not, as Gartenstein said, record public comments or the names of public who spoke.

At open meetings, minutes must be taken. However, boards are not required to make audio or video recordings of meetings.

Under Vermont statute, minutes “shall cover all topics and motions that arise at the meeting and give a true indication of the business of the meeting” and shall include, at minimum, all members of the public present as well as all other active participants; all motions, proposals, and resolutions made, offered, and considered, and the action taken; and the results of any votes, with a record of the individual vote of each member if a roll call is taken.

Regarding public comment, the law states: “At an open meeting the public shall be given a reasonable opportunity to express its opinion on matters considered by the public body during the meeting as long as order is maintained. Public comment shall be subject to reasonable rules established by the chairperson.”

A misunderstanding

“I wasn’t trying to stop anyone’s comments or to keep anything off the record,” said Gartenstein in a later phone interview.

According to Gartenstein, holding the meeting outdoors was not a meeting format the board could control and would make capturing “a clear record of comments” or side conversations difficult.

Instead, Gartenstein relied on his experiences with environmental court site visits. During these proceedings, the environmental court instructs visitors to hold comments until a separate hearing where they are recorded verbatim.

“We prefer to have the tape recorder going” to accurately preserve the public’s statements, Gartenstein said of comments made during Selectboard meetings in the Municipal Center.

Gartenstein encouraged members of the public to give their comments at a future board meeting.

The meeting was also disorganized, with people speaking over one another, and, in all fairness, recording public comment in an outdoor space is difficult for one person to do.

However, statute states that active meeting participants must be noted in the minutes. While the Aug. 4 minutes named town officials and employees who spoke, they did not offer the names of members of the public.

The board plans to take up the skatepark at a meeting next month. Gartenstein encouraged members of the public to attend a board meeting, where their statements can be recorded.

People can also email statements regarding the skatepark to Anderson and ask her to present the email to the Selectboard.

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Originally published in The Commons issue #267 (Wednesday, August 13, 2014). This story appeared on page A1.

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