Public Service Board Not Subject To Open Meeting Law, Officials Say

Jul 20, 2016

When Vermont’s utility regulators ruled this week that an August hearing related to the Vermont Gas pipeline will take place behind closed doors, the first question some people asked was, “What about Vermont’s open meeting law?”

As it turns out, there doesn’t seem to be any legal requirement that the Public Service Board operate in public view. The board is responsible for regulating utilities and ensuring that Vermonters are getting a fair deal on things like landline phone service, cable TV, natural gas and electricity.

According to Deputy Secretary of State Chris Winters, the “quasi-judicial” status of the board makes it more like a court than a school board or city council. In the eyes of the law, that makes a big difference.

“There’s a specific exemption in statute that says that the open meeting law does not apply to the judiciary or to the Public Service Board,” Winters said in an interview Wednesday.

Winters said the priorities of courts are somewhat different than other aspects of government.

“The judiciary has a responsibility to provide the parties who appear before it with due process, and that’s their first and foremost responsibility. So I think they’re able to set rules about public access and the public in those meetings, in those hearings,” Winters said.

The Public Service Board hearing in question is about whether Vermont Gas will get the right to build its pipeline through Geprags Park, a public park in Hinesburg. The board closed the hearing to the public citing concerns that protestors might interrupt the hearings and infringe on the due process rights of the official participants in the case. The board’s order announcing that the hearing will be closed showed an effort by the board to keep the public informed about what happens in the meeting.

“As a means to monitor the hearing, members of the public will be welcome to listen to the proceedings via telephone by dialing a toll-free conference call number that the Board will provide,” the order said. “The Board will also make a transcript of the proceedings available for public view.”

The Secretary of State’s office is tasked in state law with advising public bodies like city councils or planning commissions on the ins and outs of Vermont’s open meeting and public records law. Winters said that if the Public Service Board were subject to the open meeting law, allowing the public to call in wouldn’t be enough public access to satisfy the law.

“We don’t think just having phone as the only opportunity to be present and to participate in the meeting would meet the requirements of the open meeting law,” Winters said.

Winters added that the state’s open meeting law allows for board or commission members to call into meetings.

"As much as we welcome the public's presence at our hearings, the Board hearing room is not a public forum." - Vermont Public Service Board

“But it also requires a physical location, so there has to at least be a physical location where members of the public can show up, can be face-to-face with their elected officials and representatives, and have an opportunity to participate during the course of the meeting,” Winters said.

The board’s order closing the hearing explicitly mentions that the hearings are not a venue for public input.

“As much as we welcome the public’s presence at our hearings, the Board hearing room is not a public forum,” the board’s order said. “Rather, it’s a space dedicated to a particular government function.”

Winters said he isn’t aware of any law, rule or policy that requires the public service board to open its proceedings to the public.