BENNINGTON -- Vermont Secretary of State Jim Condos took his "Got Transparency" tour to Bennington recently to educate the public and public officials about state laws about open government and access to public documents.
The presentation by Condos at the Bennington fire facility on River Street Dec. 10 had two parts -- the first part dealt with open meetings and the second part with public records.
Those attending included Steve Kauppi, chairman of the Pownal Board of Selectmen; state Representatives Bill Botzow, D-Pownal; Anne Mook, D-Bennington; Brian Campion, D-Bennington/North Bennington; and several members of the public.
The open meeting law applies to public bodies -- not to non-profit private entities -- in the state, including such subdivisions as school boards, city councils and select boards and any committees of these bodies.
A meeting is a gathering of the members of a public body, with a quorum, for discussing business or taking action. A quorum is a majority of the entire body.
"If you have a five-member select board, then you must have at least three affirmative votes for the action to be legitimate," Condos said. "If three people show up, you still have a quorum, but it can't be a 2-1 vote for action."
Open Meeting laws apply regardless of where a quorum of the public body is gathered. The relevant issue is discussing anything that the public body has the authority to oversee.
"So if you have a five-member select board or city council, three members happen to meet on Saturday morning at the coffee shop, it's OK for them to meet and have coffee as long as they're not discussing anything that the public body has authority over," he said. "It's an honor system; you have to trust that they're not discussing anything that they have authority over."
Open Meeting law does not apply to the judicial branch, to the Public Service Board, to a public body in connection with "quasi-judicial" proceedings such as a development review board, a board of civil authority; site inspections for the purpose of assessing damage or making tax assessments or abatements; and clerical work or work assignments of staff or other personnel. Lastly the law also does not apply to routine day-to-day administrative matters that do not require action by the public body, as long as there is no money appropriated, expended or encumbered.
Adding to agendas
Condos also went over the rules on meeting agendas. Kauppi asked about adding an item to a board agenda at the beginning of a meeting, especially if it is something important.
Condos said there is nothing written on the content of agendas in state statutes but suggested that "you can add things to the agenda, as long as you're not adding things you have to take an action on that night." As the chairman of the South Burlington Select Board for eight years he did this frequently. "People would add something, and I would say, ‘fine, but we're not going to take an action on that. We'll post it on the next agenda for action,"' he said. "So we would not take action on anything that wasn't posted for action."
Condos said emergency meetings are called to respond to an unforeseen occurrence or condition requiring immediate attention, may be held without public announcements, without public posting of notices, and without 24-hour notice for the members, provided that some public notice is given as soon as possible before the meeting.
"A couple years ago, we had a lot of this going on in Vermont, emergency meetings, right after Hurricane Irene," he said. "There were a lot of emergency meetings of selectboards all over the state. And that was the unforeseen occurrence. An unforeseen occurrence is not you forgot to do something on Thursday night and therefore we're going to meet Friday, unless you warn it properly."
Recording or videotaping
Condos said "members of the public or news media have the right to attend meetings and to tape or videotape meetings as long as it is not done in a manner that disrupts the meeting." This became an issue in Bennington at the Sept. 23 Select Board meeting when board Chairman Joseph Krawczyk told a local cable access cameraman to stop filming the board's meeting briefly during a heated exchange between a board member and a citizen.
Asked about this incident, Condos said, "I will tell you that when we heard about that particular incident we thought that was wrong, that that person did not have the authority to order the camera off."
He added that the law requires proof that an official "knowingly and intentionally" violated the law. "That's a pretty high bar," Condos said.
Condos emphasized that Vermont Secretary of State does not enforce the Open Meetings Law. Any charges must be brought to the state attorney general or to superior court, he said.
"We're not here to point fingers," Condos said. "We're trying to educate, our role is to try to educate people, we have no power over municipalities; whether it be the town clerk or select boards, we have no power over them."
Board executive sessions are periodically a bone of contention. A frequent reason given for them is the one word "personnel." Condos made the case that a more specific reason than this is needed to comply with the law.
"If the selectboard say, ‘we're going to go into executive session to discuss a personnel action.' What does that mean? You don't know. Is it evaluation, is it hiring, is it discipline? you don't know what it is," he said. "So you've got to give something rather than plain old ‘we're going into executive session to discuss personnel.'
"This is right out of the statute -- ‘give a true indication of the business of the meeting.'" Condos said. "Remember what I said, your minutes are the record of what your board has done, so 10 years from now, 20 years from now, 5 years from now, people have to know what it was you did. And if all it says is ‘we went into executive session to discuss personnel,' nobody has a clue what you were talking about.'"
A public record is "any written or recorded information, regardless of its physical form or characteristics, which is produced or acquired in the course of public agency business," Condos said.
"Officers of government are trustees and servants of the people, and its in the interests of the public to enable any person to review and criticize their decisions even though such examination may cause inconvenience or embarrassment," he said. "The identity and motive of the requester of the public record cannot be considered when weighing access to public documents."
Though some personal and economic information should be kept private, unless specific information is needed to review the action of a government official, certain public information must be made available and the burden of proof is on the government to justify withholding information.
Condos said his department has identified 260 exemptions in state law to the public records policy. Some 240 of them may be found at http://vermont-archives.org/records/access/database.
Commonly exempt records include personal documents that relates to an individual's medical information or social security numbers, investigations, trade secrets, or tax records. "These are just some common ones. We generally advise each government agency to know which of the public records exemptions that they're going to use most often and just have those ready so they can access them quickly," Condos said.
According to state law, members of the public may inspect or copy any public record of a state agency between 9 a.m. and noon and 1 p.m. and 4 p.m. on any day other than Saturday, Sunday, or a legal holiday. For municipal public agencies and other public subdivisions of the state, "the right to inspect and copy applies during customary business hour."
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