Last week Gov. Peter Shumlin signed into law a new Open Meeting Law for Vermont -- an occurrence most people probably didn’t pay much attention to, other than those in the media and those who serve on public boards.
Shumlin’s office, knowing that the Vermont Press Association and many of its member-papers, including the Banner, felt there were fatal flaws in the bill, issued a somewhat apologetic statement after he signed H. 497 into law on May 23. The bill had passed the Vermont House on Feb. 28 and the Senate on May 7.
"We clearly have more work to do to make long overdue updates to all Vermont’s access-to-government laws," Shumlin said in the statement. "This bill is not perfect, and parts of it give me significant concern. I feel strongly that enforcement of the Open Meeting law must be strengthened. I fear that the so-called ‘do over’ provision that allows a public body a ‘second chance’ to comply before being sued will serve as a significant disincentive in making the meetings of public bodies open to Vermonters in the first place, as the Act requires."
If parts of the bill gave the governor "significant concern," what was the rush to sign it?
Shumlin said the bill improves transparency in the scheduling of public meetings by requiring boards to use their websites to post agendas and minutes, and to make clear that public bodies must ensure that all Vermonters -- those with disabilities and without -- are accommodated at meetings.
"I view my action today as another step toward greater transparency, not an end point," his statement continued. "The penalties for violations of the law must be increased from $500, where they have stood for decades. I also want better accountability when public bodies violate the law, not just ‘do overs.’"
Shumlin said he hopes new provisions regarding executive sessions for attorney-client advice and interviews to fill vacancies will be addressed by his office, the Legislature, the Secretary of State’s Office, and all advocates during the next legislative session.
VPA President John Flowers of the Addison Independent in Middlebury said Monday: "The Vermont Press Association is deeply disappointed that Gov. Peter Shumlin opted not to veto a seriously flawed Open Meeting Law that was passed as part of a compromise between the House and Senate in the final days of the legislative session."
That the governor is willing to work on the law in January is a step in the right direction.
Several legislators, including Senate President Pro Temp John Campbell, D-Windsor, have expressed concerns in recent days to VPA members that the new law fails to address many of the historic problems with the law. They have pledged to help fix those problems.
Flowers said the Press Association is calling on Vermonters to ask candidates for all state offices this fall how they would improve government transparency. Do you favor repeal of this flawed open meeting law?
"We hope legislators elected in November will work to overturn the problems created by the bill and adopt new positive provisions," Flowers said.
Among the problems in the new law is a provision that allows local and state boards to have "do overs" when they violate the law instead of facing criminal or civil actions. The new law does not limit how many of these mulligans a board can have in a year. The law also gives boards the right to go behind closed doors to interview and select candidates, but rubber-stamp the selection in open, according to Flowers.
There aren’t a lot of second chances guaranteed to those who break the law -- why should that courtesy be extended to public boards such as select boards or school boards?
Flowers noted that the new law also misleads Vermont taxpayers that they will recover their legal fees when forced to hire an attorney to take a board to civil court seeking to overturn an action taken during an improper or illegal meeting. The new law leaves possible legal fees up to a judge’s discretion, but public officials can avoid the costs by claiming they thought they were acting in good faith.
Additionally, this bill does not increase the penalty for violating Vermont’s open records law. Since the 1970s, the penalty has remained at $500. Forty years ago, that fine might have been prohibitive for many boards, but today the case may be that having to pay a fine of that amount doesn’t deliver much of a sting.
On way to remedy this is to make the penalties for violations of the open meetings law daunting enough to make officials think twice -- before they call an executive session.
There is one do-over needed: Take this law back to the drawing board and create a piece of legislation that truly supports the public right to government transparency.