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Secretary of state brings message of open government

As part of statewide Transparency Tour, Condos speaks in Brattleboro

To view the secretary of state’s presentation, “Got Transparency?” visit, and look under the tab “Secretary’s Desk."

BRATTLEBORO—As guests filed in to the Selectboard meeting room in the Municipal Center on Thursday night, awaiting the start of Secretary of State Jim Condos’ “Got Transparency? 2017 Transparency Tour,” a few attendees flipped through the handout detailing the evening’s talking points.

“I like this already!” said Brattleboro resident Dale Joy.

That night, Condos — with the assistance of his staff members Jenny Prosser and Eric Covey — discussed transparency and open government, as well as Vermont’s Public Records Act and Open Meeting Law.

At the beginning of the presentation, Condos read Chapter 1, Article 6, of the Vermont Constitution: “‘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.’”

“It’s a pretty simple statement, and it’s right up front in the Constitution,” Condos said.

Condos went over some of the sections of the Vermont Statutes Annotated that address the public’s right to know what government officials are doing.

In the “Open Meetings” portion of the discussion, Condos laid out who must comply: public bodies of the state and its municipalities. This includes all government boards, councils, and commissions, including committees and subcommittees. He noted nonprofits, even if 100 percent publicly funded, aren’t required to follow the Open Meeting Law, “unless their charter says so.”

Giving notice

Condos spent some time discussing advance public notice of meetings, and the difference between a regular meeting, a special meeting, and an emergency meeting.

The first is regularly scheduled. The second must be warned 24 hours in advance in local media, and officials must provide written notice of special meetings to anyone who asks for them in writing.

“You only have to write that [request] once in the calendar year,” Condos noted.

Emergency meetings, Condos said, are sometimes abused by town officials. The law dictates officials must give “some public notice [...] as soon as possible,” but no guidance on what that means.

Thus, Condos said, public servants should only call an emergency meeting “about an act of God.” He gave the example of Tropical Storm Irene: “There were emergency meetings all over the state.”

Laws addressing how soon government officials must provide an agenda before meetings were only enacted in 2014, Condos said. “Before then, there was no specific time limit. Agendas could be passed out at the meeting,” he noted.

Now, agendas must be available at least 48 hours before each regular meeting, and at least 24 hours before each special meeting.

“The public has a right to know what’s going to happen” at a meeting, Condos said. “Your minutes and your agenda are the history of your board.”

He highlighted the portion of 1 V.S.A. Section 315 that declares the public has “free and open examination of records [...] even though such examination may cause inconvenience or embarrassment.”

“There are [state] Supreme Court cases that say, ‘Embarrassment is not a reason to deny someone access to something,’” Condos said.

Most of the rules concerning a meeting’s minutes have been around “for the last 30 years,” Condos said. These rules say officials must make minutes available no later than five calendar days after the meeting, and they must provide them for inspection and copying upon request. But, in 2014, the Legislature amended the law to include the requirement that a public body post minutes to a website, if it maintains or designates one.

Some town officials, Condos noted, took down their municipal websites because they claimed they couldn’t comply with the five-day rule.

“I don’t have a lot of sympathy for them,” he said, adding, “it’s so easy and fast to upload things these days.”

Behind closed doors

Condos detailed when a board can meet in private: only during executive session, which is a closed portion of a public meeting. The laws are specific about when this can happen, and most municipal boards choose to go into executive session to discuss contracts, real estate purchase options, and personnel issues.

In the last few years, Condos said, the Legislature voted to allow executive sessions when a board discusses emergency response plans for public buildings, including schools, if disclosure could jeopardize public safety.

“This came about as a result of Sandy Hook,” said Condos, referring to the 2012 elementary school shooting in Newtown, Conn., that left 20 children and six adults dead.

Any person, Condos noted, can ask to inspect or copy a public record, including meeting minutes and other documents. Although the law does not require the request to be in writing, Condos suggested doing so to create a paper trail.

Some towns, he noted, charge fees for copies of public documents.

“You can always ask where the dollar figure is coming from,” Prosser added.

BCTV’s Ian Kiehle asked if a person can inspect documents and take photos of them with a cellphone’s camera at no cost.

“The cost is supposed to be the cost to the town,” Condos said, “and there is no cost to allow you to inspect” documents. “The law doesn’t jibe beautifully with technological advances,” Prosser added, “but we think [a phone’s camera] is an inspection.” She noted “the Legislature and courts have to take this up, which they’re doing.”

Although there are some exemptions as to which public documents are available for inspection and copying, Condos stressed that the burden of proof lies with the public body, not the person asking for the records.

“If it’s a gray area, it falls to the side of disclosure. And, the person who wants it doesn’t have to prove why they want it,” he said.

Regarding redactions of information on public documents, Condos said “the government agency must provide a reason for the redactions,” such as if a person’s Social Security number would be revealed.

Enforcing the law

So, what happens if a public servant fails to comply with the Open Meeting Law? Does the law provide any recourse?

“The bar is high,” Condos said, “but it’s there.”

For a public official to be charged with a misdemeanor and charged a fine, that person must “knowingly and intentionally” violate the law. At that point, the attorney general — or any “aggrieved” person — can take that public official to court to stop the act or behavior, and the plaintiff can sometimes collect attorney’s fees.

The “aggrieved individual” can file suit in Superior Court within one year after the meeting where the Open Meeting Law was violated. “There’s a time limit, but it’s a pretty lengthy one,” Condos noted.

“Often the case gets cured without going to court, or it gets decided in lower court,” he added.

Condos said that, with trust in government “at an all-time low, I believe that sunshine is the best disinfectant. I hope to help government officials of all stripes better serve Vermonters."

During the presentation, an attendee asked how often Condos takes his act on the road.

“We did one in 2011, 2013, and 2015. Every two years, in off-election years, and we do at least 12 stops in the state,” Condos said. The plan, he said, is to make sure no town in Vermont is more than one hour away from at least two stops on the tour.

“Why did the tours start in 2011?” a guest asked.

“That’s when I was elected to office,” Condos said. To his knowledge, he said, no other secretary of state had conducted this type of event.

“We’re not required to do this, but we do this because we think it’s important,” Condos said. “We realized there was a lack of understanding” of the state’s Open Meeting Law and Public Records Act.”

With the Legislature passing new public access laws in the last few years, “we wanted to explain them to people,” he added.

Joy asked Condos when the state began legislating public records laws.

This, he said, started in 1976. “Vermont’s public records laws came into being because of Watergate.”

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Originally published in The Commons issue #430 (Wednesday, October 18, 2017). This story appeared on page A1.

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