Questions over whether communications between public officials violate the state’s open meeting law aren’t unusual, but the issue has become more complex.
The many ways we now communicate have created more opportunities for officials to run afoul of the law.
Vermont’s Open Meeting Law seems fairly straightforward: Members of a public body can exchange information about scheduling and agendas, and they can send each other materials germane to meetings.
However, anything that constitutes a discussion of issues, sharing of opinions or a decision — and involves a quorum — has to happen at a legally-warned public meeting, not outside of it.
Keeping that in mind even in informal settings is a challenge, says Deputy Secretary of State Chris Winters.
“I’m on my local school board. And three of us, of the five-member school board, are soccer coaches. When we see each other on the soccer field, we have to be careful that we don’t let things wander into school business,” Winters says.
Winters' office gets lots of questions about open meetings and public records, and has recently dedicated a position to answering them.
Many of the calls come from town officials, but he also hears from citizens concerned the law has been violated.
“It’s either a perception, or sometimes the reality that the business of the board has already been done prior to the meeting,” he says.
In recent weeks, that’s been a concern in Montpelier where the city council decided not to renew the contract of the long-time city manager.
The controversial decision became more contentious after emails were acquired by the Times Argus newspaper.
They raised questions about whether the majority that favored the decision had discussed their views in a call in advance of a vote by the full council.
“That would constitute a very, very straightforward violation of the open meeting law,” says Montpelier City Clerk John Odum.
It’s not clear yet what happened in Montpelier, or whether there was any violation of the open meeting law.
Odum says it’s also possible that instead of a group discussion in advance of a meeting, a succession of calls was made by one person. According to Odum, that gets into a gray area of the law.
“In some states, that’s very explicit. It’s not so explicit here,” he says.
Winters agrees the law is unclear on that count. He says it’s probably not a violation if individual communications don’t involve sharing opinions of a quorum or majority of board members.
“But if you have conversation with board member A and then you go to board member B and say, 'Here’s what board member A said, what do you think?’, and suddenly you’re coordinating or orchestrating a decision of the board outside of the open meeting with more than a quorum of the board members, we think that probably triggers the open meeting law," Winters explains. "But again, it’s a gray area."
The internet has opened up a myriad of ways to communicate, and Winters says it’s created many more opportunities for town officials to run afoul of the open meeting law.
“It’s gotten trickier with social media, I think, and electronic communication,” he says. “I think it’s the ease of communicating outside of a meeting that’s led to some of the problems and some of the complaints that we’ve received.”
Electronic communications were an issue in Strafford not long ago when a resident claimed a series of emails exchanged by select board members was a violation of the open meeting law.
Strafford Select Board chair John Frietag says members realized they had erred and are now more mindful of what the law requires.
“Things often come up where individual board members have a strong feeling about something, and just reminding everybody, please hold discussion for the public meeting,” says Frietag.
For a while, in the wake of the incident, the Strafford Select Board printed copies of all their emails and placed them in a folder at the town office for anyone to look at.
“People don’t have to agree with everything, but people do have to feel that things are being done openly,” says Frietag.
The practice of printing out all emails was discontinued to save paper, but any citizen in any town has the right to request the emails pertaining to official business.
Open meeting rules extend beyond emails.
Members of town boards have to be careful about conversations on social media sites like Facebook, Twitter or Front Porch Forum.
Even texting about town business during a meeting – which was an issue in Montpelier several years ago – represents a form of behind-the-scenes discussion.
“We don’t like the idea of shadow conversations that might be happening between board members during a meeting,” Winters says.
If all this seems like a lot for town officials — most of whom serve as unpaid volunteers — to absorb, the Vermont League of Cities and Towns offers training and advice.
VLCT Executive Director Maura Carroll says people want to do the right thing under the open meeting law, but understanding all the different ways the law applies takes some thought.
“In the world we live in today, there’s an expectation that all of the activity that goes on in the public sector is going to be public, so they really have to be attuned to that,” she says.
The Secretary of State’s office says it has seen a number of violations of the open meeting law.
In some cases, it has referred violations to the Attorney General’s office, or encouraged individuals to pursue the matter.
The law provides for fines for violations, but Winters says he’s unaware of any case where a fine was levied.
The ballot box is one sure way for voters to register their disapproval if they feel their local government hasn’t been as transparent as it should be.