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Secretary reinforces open government law

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Posted on November 10, 2011 |
By Andy Kirkaldy



MIDDLEBURY — The best government not only does its business in the open, but also allows its citizens to participate, Secretary of State Jim Condos told a gathering of local officials and others at a Monday meeting in Middlebury.

“I can’t say that enough. The public has a right to speak at your school or selectboard meetings,” Condos said. “You can’t shut them off. You can limit them.”

Condos, on his 12-stop “Vermont Transparency Tour,” also urged boards to limit executive sessions, and officials to cooperate with requests for documents and information.

“If there is a doubt or a gray area, the courts will fall on the side of disclosure,” he said repeatedly.

Condos’ tour is being encouraged and supported by the Vermont Press Association (VPA), the Vermont League of Cities and Towns (VLCT), Vermont Municipal Clerks and Treasurers Association, Vermont School Boards Association, Vermont American Civil Liberty Union and Vermont Common Cause.

About 30 local town and school officials, a VLCT attorney and VPA Executive Director Mike Donoghue gathered in the Ilsley Library Community Room to hear Condos’ presentation.

Condos focused on the state’s open records law, which the Legislature changed earlier this year, and its open meeting law.

The Vermont Senate last winter passed a bill making changes to the open meeting law, but the House did not complete work on its version, according to Condos, who previously served as a South Burlington aldermen and a Chittenden County state senator.

“This is really about helping you people understand the laws we have, because we have had some changes,” he told the local officials on Monday.

MEETING ISSUES

Condos said at times local officials break meeting laws without knowing it. He pointed out that if a majority of a small-town board meet “at a football game or on the street” or even online and if municipal business comes up, that gathering, usually unintentionally, becomes an unwarned official meeting.

“They’re not trying to subvert the law or go around the law,” he said.

One attendee wondered about one local school board’s practice of allowing only public comment at the beginning of a meeting.

Condos said he did not favor the practice, because he believed residents should be allowed to comment during discussion of specific agenda items, although he supported the right of board chairpersons to limit the length of comments.

He said the courts had never been asked to rule whether a pre-set comment period met the standard for public input.

“Unless someone were to actually challenge it (in court), I don’t know what to tell you,” Condos said. “But I don’t think it is a good idea.”

Leicester Town Clerk Julie Delphia asked if private companies handling state funds were subject to open meeting and records laws.

Condos replied there now is discussion at the Legislature that private companies should be compelled to release “records that pertain to state money,” notably firms that contract to operate prisons.

Condos also made a plea for boards to take seriously requirements to keep accurate and complete minutes.

“Minutes are really important,” he said. “Minutes are the history of your board. Minutes are the history of your town.”

And, he said, they should be made available within the required five-day period — whether they’ve been officially accepted by the board or not.

Condos also noted that the executive session allows boards to conduct certain business behind closed doors. According to his handout, most executive sessions that fall into the gray area include “contracts, labor relations with employees, arbitration, mediation, grievances, civil actions, or prosecutions by the state, where premature general public knowledge would clearly place the state, municipality, other public body or person involved at a substantial disadvantage.”

Condos said sensitive personnel issues require closed doors, but boards should think twice before calling for executive sessions for simple negotiations.

“Executive session is to be taken seriously. You shouldn’t be going into executive session for everything under the sun,” he said.

Condos said the law allows boards to close doors, but does not require them to do so.

“Not all or any of these things have to be done in executive session ... It is up to the board. The public can challenge that,” he said.

Specifically, Condos and the VPA’s Donoghue both said they believe that the back and forth of contract negotiations — what towns or school boards are offering and what employees or teachers are asking — do not require secrecy.

“There is no reason that negotiations shouldn’t be held out in the public under this law,” Donoghue said.

But both agreed there is no legal precedent to force boards to act in the open. Condos, however, had an idea which way the courts might rule.

“We need a court decision,” Condos said. “If there’s a gray area, the courts lean toward disclosure.”

Condos was also asked about one Addison County board that this week listed an executive session in advance and simply stated the entire list of reasons for closed doors without specifying.

Condos, commenting that there is a school of thought that an executive session cannot be warned at all, said that that warning was inadequate. However, if the board had picked one reason out of the list, he said it would be covered — if it planned to discuss a contract, for example, the board did not have to specify which one.

“I don’t think you have to say ‘fire contract,’” Condos said.

PUBLIC RECORDS

Condos said Vermont’s new open records law strengthened requirements for compliance with requests.

What he called “the big one” among the changes was the provision that towns, boards and agencies must pay requestors’ legal fees if after a court case a judge determines that public records were improperly withheld.

Condos said some have worried that part of the law might be a burden on taxpayers, but he noted it doesn’t have to be.

“It’s not going to cost you money unless you get sued, and you’re not going to get sued if you do what you’re supposed to,” he said. “And remember, if there’s a gray area, the court is going to come down on the side of disclosure.”

Condos also reminded the gathering that DVDs, tapes, CDs and public officials’ emails on town business were all in the public domain, and the law requires a specific reason for a refusal to make them available.

He noted the law also allows officials to talk to information requestors if they seek an unusually large amount of data.

“You can negotiate with them to reduce the size of the request,” he said.

The changed law also makes it clear that redaction — blacking out sensitive information such as names of minors on police reports or social security numbers on real estate transfers — is legal.

Several officials had questions about the requirements to release birth and death certificates to all comers — without asking for identification or motive.

Lincoln Town Clerk Sally Ober said she was unhappy recently to release a birth certificate copy to non-family members, and Leicester’s Delphia said death certificates have sensitive material she is often not comfortable releasing.

Condos said the Legislature has a study group now looking at how to improve the state’s laws on vital records; he said Vermont’s are among the most permissive in the nation.

“Our laws are pretty weak in the area of vital records,” he said. “Stay tuned.”

Condos said with the Legislature set to look at the open meeting law this winter, he might barnstorm the state again.

“If the law changes, then maybe next year we’ll have a new tour,” he said.

Andy Kirkaldy may be reached at andyk@addisonindependent.com.  

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