After notice of violation, a race for a cure

After notice of violation, a race for a cure

In response to a citizen complaint of violation of state public information laws, Brattleboro Selectboard publicly affirms Rescue decisions made behind closed doors but changes process for invoking executive sessions, creating a two-vote process

BRATTLEBORO — In April, the Selectboard voted 5–0 to end its contract for emergency medical services with Rescue Inc., setting in motion a new model for EMS that would make it the responsibility of the fire department.

But the fire has not yet burned out on that controversy, which has divided the local community, and on Friday, June 3, the Selectboard was served with a legal filing formally alleging violation of a provision of the Vermont statutes regarding open meeting laws.

At Tuesday's meeting, the board addressed the notice, filed by Robert Oeser, a local justice of the peace, who asserted that “discussions and decisions regarding changes [to the town's responsibility under its charter to maintain an EMS service] involving Rescue Inc. should have been conducted in an open meeting.”

As a consequence of the filing, at its June 7 meeting, the board adopted a new two-step procedure to add transparency to the process under which it invokes executive sessions, the portions of the public meeting that take place behind closed doors.

For those who may have hoped that the notice of violation might move the board to void its decision in the Rescue/EMS contract, the Selectboard made it clear that, as board member Daniel Quipp said, “it's finished.”

“It's a done deal,” he said.

The letter and the spirit

Oeser's filing requested that the board void decisions that had been made regarding EMS and ambulance services, to provide a clear account of how those decisions were made, and to “commit to abide by both the letter and the spirit” of the state statute.

The filing - required as a first step under the penalty and enforcement section of the state's public information laws - cited the minutes for the board meetings of March 15, April 5, and April 19 in which the board moved to go into executive session “to discuss contracts,” without further explanation.

With Oeser's filing starting a countdown to a deadline of 10 calendar days to respond and 14 days to remedy any violations, the Selectboard added consideration of the notice to its “new business” agenda for its June 7 meeting.

The law allows for either the state attorney general or an aggrieved party to sue the town for violation of the public information law, “but that person must first give the public body a chance to respond to the allegation of violation,” according to material published by the Vermont League of Cities and Towns.

Starting from Oeser's delivery of the notice on June 3 to the Selectboard and to then-Town Manager Yoshi Manale and Assistant Town Manager Patrick Moreland, the town had 10 calendar days to acknowledge or deny the claims and 14 calendar days to cure the infringements.

At Tuesday's meeting, board members acknowledged the harm that Oeser documented in his filing.

Instead of simply using a checklist of items like “contracts” or “employment agreements,” the board committed to a process based on two related motions.

First, the board will move the specific item to be discussed in executive session, and then members will vote to explain why the decision meets the standard for executive sessions, which requires “making a specific finding that premature general public knowledge would clearly place the public body or a person involved at substantial disadvantage.”

Along with this change in process, the board also publicly decided by a 5–0 vote to ratify decisions taken in the three executive sessions cited in Oeser's notice of violation.

In essence, this meant that the town has no intent to reconsider its decision to move toward a municipal EMS system, contracting with Golden Cross, based in Claremont, New Hampshire, for services during a transition period.

The board also did not address a request in the notice that it provide an account of how it made its decisions in the matter of Rescue Inc. and ambulance services, although several speakers at the meeting underscored the need.

The notice of violation said it would be “in the interest of transparency and to attempt to repair the harm done by not following an open decision-making process.”

“We need a clear account of how [the board] made its decisions,” Oeser told The Commons. “Since the decision is already made, you can easily tell us - that shouldn't be a problem, that's history.”

“You know, you're not keeping those records sealed for 40 years, pursuant to the National Security Act or something,” said Oeser. “You could just tell us what happened.”

Public responds at meeting

The polarizing impact of the board's recent decision to bring emergency services in-house was clear in the speakers who came forward to discuss the issue.

Spoon Agave made a strong statement on behalf of the decision to move from Rescue Inc. to Golden Cross on financial terms. And others, like Dora Bouboulis, argued that the decision was taken too lightly - and without public input.

Despite their view of the EMS decision, almost every speaker agreed that the issue of process had been a key issue - a point that the Selectboard acknowledged.

The board will have 14 days to decide on further responses to the filing.

One key question related to the notice of violation's request to void the decision regarding Rescue Inc.: Was the decision to switch EMS providers simply a contractual matter, appropriate for executive session, or was it was a matter of policy, which should have been discussed in open meetings before the decision was made?

Kate O'Connor, a former chair of the Selectboard, said that she was not arguing against the EMS decision.

But she said board members were mistaken at not seeing their vote as a matter of policy, since the town's relationship with Rescue Inc. is so longstanding and also embedded within Brattleboro's relationship with surrounding towns.

In formally ratifying the decisions taken in executive sessions in March and April, the board essentially rejected that argument, claiming that it was simply a contractual matter.

Whether that element of the notice of violation will be raised to the next level will be clear from the written response of the board, which is due in two weeks.

In talking about his intent to bring forth the notice of violation, Oeser spoke of his concern about the increasing “Balkanization of society” and the ways in which divisions and incivility have become increasingly deep and common.

Although he disagrees with the EMS decision, he said his main goal in filing the notice of violation would be to improve processes of open communication and participation.

Rescue, town in talks about mutual aid

Meanwhile, on Monday, members of the Rescue board of trustees met with two Selectboard members and other town officials to renew discussion of a draft mutual aid agreement.

According to a statement released by Rescue after the meeting, the draft agreement “indicated that Rescue should provide an unspecified amount of coverage, which they define as 'uncompensated mutual aid.'”

The letter, which was written on Rescue stationary but not signed, also talked about “a series of disparaging remarks by town officials about Rescue's business model and its management staff” and how “this public discourse has directly affected the leadership and staff of Rescue Inc., specifically Chief [Drew] Hazelton.”

The document also acknowledged “a very frank conversation about the damaged nature of the relationship between the Town and Rescue.”

Oeser pointed to this statement as a sign of progress.

A maiden voyage with a new policy

At the end of Tuesday night's meeting, the Selectboard went into executive session, using its new two-motion process.

After Chair Ian Goodnow stumbled a bit, rewriting his original motion as he went, he got it right: the board would move into executive session to discuss a mutual aid agreement with Rescue, and it would enter executive session because it was a contractual discussion.

And that new policy in action came as a relief to Oeser.

“I'm surprised at how far we got,” he said after the meeting. “So far, so good.”

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