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‘Open government is good government’

Secretary of State’s ‘Transparency Tour’ comes to Brattleboro

To search the state’s right-to-know database for laws or exemptions, visit the secretary of state’s website. Condos and his staff have also made the Vermont Transparency Tour presentation available online.

BRATTLEBORO—Vermont has a long commitment to its citizen government.

Each day, elected officials from local Selectboards to the Statehouse navigate the statute-laden waters, backed by a legion of professional town managers, administrators, and clerks.

The task of interpreting state statutes also falls to these elected officials, often legal lay people. Questions naturally arise, such as “which documents are public?” or “if three Selectboard members start chatting about the meeting agenda over email, does that constitute a meeting?”

Secretary of State Jim Condos and Deputy Secretary Brian Leven made Brattleboro the sixth stop of their “Vermont Transparency Tour” on Oct. 27 to help answer local officials’ questions and outline changes to Vermont’s sunshine laws.

Local Selectboard members, town staff, and Brattleboro Town Meeting representatives attended the tour stop.

Condos said he decided to embark on the tour because, as someone who “came up through theranks of local government,” he understands that issues of access affect all levels of government.

He hoped the tour would create an atmosphere of better understanding for local officials, many of whom, along with the public, call the Secretary of State’s office with questions.

“Lay people” steer the ships of most local governments, he said, and they try to do their best.

The public’s right to know

Condos opened the evening reading from a PowerPoint presentation, “The Public’s Right to Know Comes from the Vermont Constitution.”

“Vermont’s open meeting and public records laws are some of our most important, because they allow us direct access to the [government] decisions that affect us,” he said.

Condos said that the open meeting and public documents laws receive authority from the state’s 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.”

Regarding public records, said Condos, the law’s policy states that “it is in the public interest to enable any person to review and criticize [officials’] decisions, even though such examination may cause inconvenience or embarrassment.”

If an open meeting or public documents challenge goes to court, said Leven, the Vermont courts generally err on the side of openness and disclosure.

The burden of proof also lies with the state or local agency denying access, he said.

“You really have to use common sense and always keep in mind that the courts have so far said that whenever there is a doubt, they will err on the side of openness,” Condos echoed.

Can a meeting not be a meeting?

Condos warned Selectboards to refrain from talking shop whenever a quorum — three or more members — is present or they could violate the open meeting law.

As an example, Condos said that if at the Transparency Tour meeting more than three Selectboard members were sitting in the audience, they could individually speak and ask questions.

But if the members started chatting as a group, especially about town business, then their conversation slipped into the territory of an unwarned meeting, he said.

In response to an audience member’s question about holding emergency meetings, Condos said the board can meet without notice.

“You should try to provide notice,” he said, but added that there is some leeway in the law.

Condos said that in a case like Tropical Storm Irene, the state sent guidelines to the towns about unwarned emergency meetings.

In general, boards can meet once because of an emergency, he said. But if the board decides to meet again or adopt a resolution around regular meetings during the emergency, then that emergency meeting shifts into a special or regular meeting that requires public notice.

Leven said that in general, boards are not entitled to hold sessions in private without meeting the standards of executive session dictated by law.

Also, even if a town board enters executive session, it needs to produce a record — like entering the decision made into the minutes, both Condos and Leven said.

Leven said the law states that selectboards can meet via electronic means, like a chat room, providing that the gathering satisfies open meeting law. But, he added, online discussions rarely offer sufficient access to the public.

If the warned meeting has adjourned, is it still a meeting?

Yes, said Condos. As long as a quorum of members is talking town business, a meeting is legally a meeting.

Condos also advised boards that state law allows for everyone in the public to speak.

“You have to give people an opportunity to speak,” he said.

Selectboard chairs can impose time limits, he said, relating how some board members have responded to this requirement with a panicked “but we’ll be at the Town Hall until midnight.”

To which Condos responded: “So what?”

“That’s your responsibility as local government,” he said.

Meeting minutes: an obligation

Condos reminded officials that the minutes of their meetings stand as a “history of your board.”

Vermont law also requires the minutes, even if only a photocopy of the originals or other draft forms, be available for inspection by the public within five days of the meeting, he said.

Condos relayed an incident from his days as chair of the Burlington City Council as an example of distress caused by incomplete minutes.

Prior to Condos leaving the council in 2007, he voted on the city manager’s retirement package. The vote, however, was not recorded in the minutes. The city manager retired in 2010 and started collecting his pension.

When the new city manager and the City Council combed through Burlington’s budget, they did not find the vote that awarded the outgoing manager his retirement package. So they challenged legitimacy of the manager’s retirement benefits.

After a year-long discussion, the City Council restored the retirement package.

“As my dad said, ‘When you make a mistake, own up to it, learn from it, and move on,’” said Condos. “You really need to have those minutes be accurate and reflect the motions taken.”

Also, Condos reminded the audience that the media is the public’s representative and has the same access to documents as town officials and employees.

A spring cleaning for the sunshine laws

According to Condos, Vermont’s open meeting and public records laws underwent a “significant upgrade” this year with their biggest overhaul since 1976.

As of July, state law requires towns to pay attorneys’ fees and other legal costs in public records disputes that make it to court and find a municipality has improperly blocked access to public documents.

The law now allows towns to charge for staff time when it takes more than 30 minutes to fulfill a request. It clarifies that traffic tickets and citations are “explicitly public.”

The law also provides right-to-know training for public officials, allows towns to redact legally private (exempt) information rather than withhold the entire document, and requires records requests to be filled or denied within three days.

The senior state senator from Windham County, Jeanette White, helped spearhead the changes as part of her role as chair of the Senate Committee on Government Operations.

White said another spring cleaning is planned for the exemptions for withholding information under the public records law.

Condos said the public records law has a list of 40 exemptions. Some of the exemptions overlap with federal law, and 239 types of information may now be withheld from Vermont public records. The Secretary of State’s website lists 221 statutes affecting public access to records.

White said her committee is going through the exemptions to determine if the associated information should remain exempt. A Public Records Study Committee recommended 75 of the exemptions for review.

For White, reducing the total number of exemptions is not as important as determining that “what’s listed as exempt truly is exempt.”

Public records often don’t have a custodian, another issue that White hopes to solve.

In towns where voters elect a selectboard and positions like town clerk, she said, the public can find itself blocked from records. If the elected town clerk refuses a public records request, for example, that elected official has no boss.

Not even the selectboard can say “hand over the record,” leaving the public in the cold or the town footing the bill under the new legislation if the denial results in a lawsuit, said White.

White also introduced a bill this biennium which intends to clarify when a public body may enter executive session.

White’s bill passed the Senate this year, and awaits consideration in the House of Representatives when the Legislature reconvenes in January.

A long fight

The Senate Committee on Government Operations’ changes follow a decade’s worth of frustration with Vermonters’ access to meetings and public records.

The Vermont Press Association had pushed for upgrades to the state’s right-to-know laws for over a decade.

Their efforts met resistance from the Vermont League of Cities and Towns and the Vermont attorney general’s office, the entities that represent local and state officials in public records disputes.

Nationally, Vermont has ranked in the gutter on transparency.

In 2010, the U.S. Public Interest Research Group gave the state an F for online budget transparency, and Vermont ranked 49th in the nation in the 2008 Better Government Association’s Alper Integrity Index in the areas of law: open records, whistleblower protections, campaign finance, open meetings, and conflicts of interest.

White said legislators have more work ahead on the public right-to-know laws in 2012.

Condos summed up the evening by saying, “Open government is good government.”

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Originally published in The Commons issue #126 (Wednesday, November 9, 2011).

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