BELLOWS FALLS — Secretary of State Jim Condos and Deputy Secretary of State Brian Leven, an attorney, passing through town on their second Biennial Transparency Tour, stopped by with a message for Windham County public officials and government employees.
“Open-meeting laws and access-to-public-records laws are some of our most important laws,” Condos told The Commons. “It's about transparency. It's about democracy. It's about the people's right to know.”
The public officials came to town on the heels of an inundation of public document requests of elected officials from the town manager to numerous local board members within this past month, and as the Rockingham Free Public Library's Board of Trustees finds itself investigated for alleged violations of open-meeting law.
But the timing is purely coincidental, according to Condos, who said, “We're not here specifically for Rockingham. This is just the site we're doing for Windham County.”
The last time around, Condos and his team stopped in Brattleboro. “It's more about timing and where we could get an available place,” he said.
The Nov. 20 presentation on open-meeting laws and public document requests was sparsely attended given all the activity and attention in these two areas in recent months. A handful of people attended, half of them public officials.
What's a meeting?
Condos emphasized that when it came to the some 260 exceptions to public document and records law, the state deliberately errs on the side of keeping the records public.
He began the meeting clarifying that the Vermont Constitution guarantees “that all the 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.”
Any member of the public body found guilty of an act that “knowingly and intentionally violates the provisions” of the law or “knowingly and intentionally participates in the wrongful exclusion of any person or persons from any meeting” faces misdemeanor criminal charges and fines of up to $500.
Condos responded to a question on penalties on anyone who “willfully destroys, gives away, sells, discards, or damages a public record without having authority to do so,” pointing out that the statute rules such a person “shall be fined at least $50 but not more than $1,000 for each offense.”
The secretary of state also pointed out a 2011 change in the statutes which forces a responsible government agency to pay attorney and other legal costs for those who successfully sue in Vermont court to get access to public records that are withheld from the plaintiffs.
Condos addressed the question of what makes up a quorum of a public body: “a majority” of three or more members of a public body, including committees, which, according to state law, “shall be sufficient and shall be required” for official business.
He explained that a subcommittee of three constitutes a public body for which minutes must be taken. If two members are present within such a group, that constitutes a quorum, and business may be undertaken.
An example of the quandary a board can find themselves in regard to this statute was a heated discussion that took place only one night before, at a RFPL trustees' meeting, when Trustee Ray Massucco called attention to a Nov. 7 email thread involving chair Chair Jan Mitchell-Love, Vice Chair Deb Wright, and Municipal Manager Willis “Chip” Stearns III.
Mitchell-Love twice made blanket statements about the trustees' positions on issues to the trustees in a Nov. 7 email, invoking the authority of the full board.
During the 1{1/2}-hour discussion that descended at several points into shouting matches, Trustees Ray Massucco, Carolyn Frisa, Pat Fowler, and Elayne Clift told Mitchell-Love and Wright that their leadership roles on the board did not give them the authority to speak on behalf of the body on anything that had not come before the whole group.
The lengthy and acrimonious discussion of the chair and vice chair invoking board authority did not result in any censure, nor was any resolution undertaken.
Jan Mitchell-Love and Deb Wright defended themselves, saying they felt they had not stepped outside of their authority, and they would not take authority from the Board.
But Condos made it clear that decisions that affected the business of a public body could only be undertaken with a quorum present and by majority approval.
'Way too much'
Condos said “special meetings” have to be warned just as regular meetings do, and the public are allowed to attend. News agencies must be notified of such meetings if they have provided written requests for same.
He also spoke about executive sessions, closed-to-the-public portions of official meetings which, in his personal opinion, “boards go into way too much.”
When a board decides to go into executive session, it is not enough for a board to recite a generic script (“where premature general public knowledge would clearly place the state, municipality other public body, or person involved, at a substantial disadvantage”). The public has a right to know the specific reason for the executive session, and all decisions must ultimately be made in public.
Condos enumerated some of the legitimate likely reasons for entering into executive session that law allows: “contracts, labor relations, agreements with employees, arbitration, mediation, grievances, civil actions, or prosecutions by the state.”
Boards may also enter executive session during (again quoting the statutes), “the appointment or employment or evaluation of a public officer, and for a disciplinary or dismissal action against a public officer or employee.”
“But nothing in this subsection shall be construed to impair the right of such officer or employee to a public hearing if formal charges are brought,” Condos quoted.
Condos said that the “public records act represents a strong policy favoring access to public documents and records,” and asked the audience if anyone remembered why such rights were enacted into federal law in 1976.
The answer: the Watergate scandal, in which, after a burglary at the Democratic National Committee headquarters in the Watergate office complex in Washington D.C., on June 23, 1972, then-U.S. President Richard M. Nixon and his chief of staff, H.R. Haldeman, conspired to have the CIA ask the FBI to stop its investigation of the crime, falsely claiming the break-in was a national security operation.
In 1974, the U.S. Supreme Court forced Nixon to release audiotape recordings that he made secretly in the Oval Office. Nixon resigned a few months later.
When the recordings of Nixon and Halderman were released, people in the U.S. were shocked to hear what the nation's leader was asking his staff to do.
In the wake of the scandal, the Government in the Sunshine Act became law in 1976. That act affects the operations of the federal government, Congress, federal commissions, and other legally constituted federal bodies, and is one of a number of similar acts passed in that era with a goal of creating greater transparency in government.
Trustees and servants of the people
Condos told attendees after hearing from several Rockingham residents and officials that, sadly, transgressions of open meetings and public records were “happening all over.”
He said that while he considers transparency in government one of a democracy's most important tenets of law, he's “seen worse” when comparing the behavior of officials in some other towns to Rockingham officials' transparency issues.
But Condos reiterated that transparency in government was the message.
He reminded officials that, according to state law, “officers of government are trustees and servants of the people, and it's in the public interest to enable a person to review and criticize their decisions even though such examination may cause inconvenience or embarrassment.”
Condos recommended that trustees and government officials err on the side of transparency, and warned that the courts would do the same were it to come to that.
Exemptions and time to respond
The exemptions for privacy cover aspects of information such as documents relating to an individual - medical information, Social Security numbers, investigations, trade secrets, and tax records.
Condos said that a document cannot be held back because of a reference to any one of those exemptions; rather, the document must then be redacted of delicate information and supplied on request.
Condos also said that the five days given to respond to a public records request are not “business days,” that wages of staff could not be charged to complete the task, and that reasonable fee structures were set and recommended by the state.
In addition, the secretary of state asserted that “You can ask,” but the law states, “the identity and the motive of the requester cannot be considered when weighing access to public documents.”
Responding to questions about the time involved spent answering public-records request, Condos said that when a person takes on a public position, accommodating such requests becomes part of the job description.
The question of whether or not public-records requests could be construed as harassment was met by a comment from the audience by Mary Barber: “Better that than not.”
However, in Vermont courts, state laws do require that those involved in court cases and their attorneys certify that any pleading, written motion, or other document is “not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.” Those found to use the courts in such a manner could be liable for the other party's attorney fees.
For government entities that reject a request for public documents, written notification and a specific explanation for the denial is required within five days of the request.
Extensions to that time frame - not exceeding 10 days - are possible, but an agency must notify the individual with a reasonable target date for compliance.
When “voluminous documents” are requested, Condos said, state law insists that the agency and the individual work together to narrow the scope of the request, and the agency may be granted reasonable extensions to comply in such cases.
A major rewrite
Condos told The Commons that as far as exemptions, of which some 260 are listed on the state website, “the Legislature did make some changes in 2011, which was the first major rewrite of public access laws since their inception in 1976.”
He said the Legislature has “formed a study committee that meets every several years to study and to review exemptions.”
Condos said that public officials should be familiar with their documents and any exemptions that might apply to some of the information; he said they should figure out how to make those documents available to the public when requests fall in those areas.
But again, an exemption only applies to that part of a document, not to the whole document, and is not a reason to deny a document. It should be redacted before it is released.