Community Forum: Sunshine law gets a little cloudy

This week’s writer is Joe Choquette of Barre, a longtime lobbyist with Downs Rachlin Martin PLLC, whose clients include the Vermont Press Association, which represents the interests of the 11 daily and more than four dozen non-daily newspapers in Vermont.
For decades Vermont has been at the bottom of the list of states for the public’s right to know the truth about government operations, records and meetings.
Two years ago, with the strong support of Gov. Peter Shumlin, Secretary of State Jim Condos and others, the Legislature passed a new public records law that improved public access to government documents. Since then, the state has seen steady improvements in its rankings for open government.
The time has come to make similar improvements in the second area of government operations — the public’s right to know what local and state boards are doing when they meet, sometimes improperly, behind closed doors. A bill that has now passed the House and Senate tries to address open meetings; but it also contains some fatal flaws.
To be fair, it is somewhat understandable that many in the General Assembly lean toward the government’s viewpoint. Many lawmakers serve or have served on local boards and commissions. Few have tried to follow government activity from the outside.
With that said, here are some of the problems with the proposed legislation, H.497:
• State and local boards that are caught violating the open meeting law will be given a chance for a “do over.” Nowhere else in Vermont law is there a provision for a “Mulligan.” Vermonters caught polluting the environment, driving drunk, or embezzling money seldom get a free pass.
Civic leaders should know and respect the law. Yes, some board members are volunteers, but there is plenty of professional training offered throughout Vermont, and as the saying goes, “ignorance of the law is no excuse.” The Secretary of State, the Vermont League of Cities and Towns and the Vermont School Boards Association are among the groups involved in the proper training of officials, the public and the press on the open government laws. 
• The proposed law expands the definition of what is not a meeting. That hurts both open government and public participation. Under this bill, the records of board members setting agendas by e-mail are not considered to be meetings. Yet, by agreeing ahead of time what will be on the agenda, what won’t be on the agenda, who goes first and who goes last, members control the substance of a meeting. And who will know if substantive matters are discussed by e-mail?
•  There are sometimes valid reasons for closed-door meetings, but minutes should be kept for everybody’s protection. We have seen cases in several communities, including South Burlington and Montpelier, where officials have later admitted that private meetings should have been public. In these cases, the opportunity to understand what happened is lost.
The best compromise would be to require minutes to be taken and allow any closed-door minutes to remain exempt from public disclosure, but only until the issue is resolved or the need for confidentiality passes. That is the law in Massachusetts and some other states. 
• The proposed law would allow local and state boards to interview candidates for a public board in secret. What’s wrong with doing interviews and the selection in public?
People running for the Legislature, selectboard, school board and other public offices are subject to public scrutiny. They participate in candidate debates, respond to question-and-answer profiles in their local newspapers and attend candidate debates. Why should somebody seeking to fill a seat on the select board or school board avoid the same scrutiny that the other candidates faced when getting elected?
• The penalty for an open-meeting violation needs to be increased. The fine for a violation of the open meeting law is $500, unchanged since it was established in the 1970s. Over the past 40 years, prosecutors have rarely filed charges, even when a board admits it has violated the law. Even so, the penalty is only imposed after a board stubbornly refuses to admit a mistake and is found liable in court. It is time to bring the penalty into modern times and to make the penalty meaningful.
Let’s suppose that a local board wanted to conduct its business in secret to protect a member’s interests. Unless an insider squeals and a member of the public takes action, the violations can go on for years. When finally caught, the board can correct the latest violation and get off scot-free, without any penalty, except a pledge not to do it again.
At this point only a gubernatorial veto will prevent this bill from becoming law. No matter what happens, the Legislature needs to return to Montpelier ready to improve this bill and address other unsolved problems, including disputes about board members exchanging text messages or email during meetings to avoid public disclosure. If not, the progress made two years ago toward getting Vermont out of last place for transparency will be lost.

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