Bill would boost public access to state's records, documents
Toolbox
By Daniel Barlow Vermont Press Bureau - Published: February 28, 2008
MONTPELIER – Lawmakers are hoping to pull back the curtains of state government a bit more to let some light shine in.
The Senate Government Operations Committee began work Wednesday on a bill boosting the public's access to state records and documents and another bill enacting protections for state employees who want to blow the whistle on alleged bad behavior.
Sen. Jeanette White, D-Windham, the chair of the committee, said that while state government is probably more transparent today than it has been in the past, that there are still improvements to be made to increase the public's access.
"My main interest here is preserving the public's access to government," she said.
Vermont's whistleblower law only covers employees in the health care sector, according to Michael Casey, the general counsel for the Vermont State Employees Association.
And while union contracts between state workers and the government outline that employees have first amendment rights, that protection has essentially been stripped away for private sector employees in a recent U.S. Supreme Court decision, Casey continued.
"I'm not sure anyone disagrees that state employees are in the best position to know if tax dollars are being used in corrupt or evil ways," he said. "There should be protections for them to speak out without fear of retaliation."
David Herlihy, the commissioner of the Vermont Department of Human Resources, disagrees with Casey's assessment. He said Wednesday that prior case law, which he sees as consistent with the Supreme Court decision, shows that state workers can speak out on issues, just not while on the clock.
"I don't think this was the sea change they say it is," he said.
Herlihy is expected to testify before the committee next month on the whistleblower bill, but he said Wednesday that he has some serious concerns about the proposal and noted that the state already has a grievance process for employees who feel they have been treated unfairly.
"Employees are allowed to say what they think as citizens," he said.
Some of the most explosive testimony Wednesday came from John Brabant, an environmental analyst with the Vermont Department if Environmental Conservation, a state employee who has a long history of blowing the whistle on questionable practices within industry and governments.
Brabant ruffled lots of feathers in the early 1990s when he spoke out against a proposed waste incinerator in Rutland while still a state employee. State officials wanted the project to go forward, he said, despite that the science showed there would be serious problems with the air quality in that part of the state.
"I would have lost my job had I not had this support network," he said, referring to legislators at the time who stood up for his right to speak out against the plan.
The Vermont Agency of Natural Resources, the umbrella organization for the Environmental Conservation Department, has "come a long way" since then, Brabant told the committee, but there is still pressure for members of Gov. James Douglas' administration to "stay on message" when testifying or speaking in public.
"You need to continue opening the blinds and letting the light in," he told the lawmakers.
Lawmakers sometimes have a difficult time getting experts from the state government to testify on specific issues and instead often hear from commissioners, department heads or spokespeople, according to White.
As an example, she referenced a recent memo from Sabina Haskell, the spokesperson for ANR, to top officials within the agency asking that media inquiries from the Seven Days alternative newspaper be first vetted by her office.
"I have seen other memos similar to this," White said.
Brabant said he didn't agree with Haskell's memo, but also defended her because he and others felt the reporting related to the inquiries may have been unfair or biased.
"She probably should be taking to task for this," he said. "ANR withholding information from the public is not cool."
Jason Gibbs, Douglas' spokesperson, said the administration never denies a state employee the opportunity to testify before a legislative committee. He said he was confused as to why lawmakers were raising this issue, but noted that Haskell's ANR memo was a special case due to "dishonest and unfair" reporting.
"Sabina of all people knows what honest reporting is," Gibbs said, referring to her long-history with Vermont newspapers, including time spent as editor at the Rutland Herald and the Brattleboro Reformer.
Seven Days defended its reporting on several stories about ANR that have run in the Burlington-based weekly newspaper over the last year. Reporter Mike Ives, whose inquiries were the subject of Haskell's memo, said the administration has never asked for a correction or disputed information in any of those stories.
"The first time we got wind of this was today," Ives said. "I sent Jason [Gibbs] several e-mails over last summer and never heard a peep."
Haskell's record of pushing for more governmental transparency – including testifying before the Vermont Legislature and U.S. Sen. Patrick Leahy's Senate Judiciary Committee in recent years on open records laws – appears to be in stark contrast with her memo regarding Seven Days, said Ken Picard, a reporter at the paper who wrote a column highlighting the controversy this week.
"I have tremendous respect for Sabina's record, which is why I am dumbfounded that no one from the agency would talk to Seven Days," Picard said.
Haskell said Wednesday that the memo does not reflect her approach in dealing with all of the state's reporters. She said she was concerned about the approach that Seven Days took in several stories about the agency.
"I don't think there is anything hypocritical about this," Haskell said. "We all have jobs to do, but all I can ask is that we have respect for the process."
Meanwhile, the Senate committee also began hearings on a rewrite of Vermont's public records law.
The proposal being considered by lawmakers, the text of which is likely to change before a final vote, would have the state charge only for staff time when sensitive and personal information needs to be redacted from the requested documents. It also caps the per hour charge at $20.
The bill would also set up a new office within the Vermont Secretary of State's Office that would issue advisory opinions on public records requests and act as ombudsmen on government access. It also creates an advisory board that will review the list of exemptions to the state's public records law.
Contact Daniel Barlow at Daniel.Barlow@rutlandherald.com.
36