• Greater openness
    May 23,2014

    Gov. Peter Shumlin ought to tell the Legislature to try again in its effort to clarify the state’s open meeting law.

    A bill passed by the Legislature awaits Shumlin’s signature. By vetoing it, he could send a message that it is the responsibility of public bodies to know the law and to follow it.

    The bill represents an effort by the Legislature to bring clarity to the murky area of electronic communications and the ease with which public officials can carry out business away from the public eye. It happens nowadays that members of public boards find it convenient to attend board meetings remotely, by conference call or Skype. The new bill describes the protocol for that sort of meeting. For example, if a select board plans to meet, but a quorum of its members is not physically present, the law requires that at least one member be present at a predetermined public place so the public can also attend.

    Those are useful modifications. But the bill goes to great pains to allow boards a way to escape responsibility for violations of the open meeting law. These violations can be damaging to public confidence in government. In recent months, serious controversy has troubled several towns, including Castleton, Middlebury and Rockingham. It is important for all sides in cases like these that the public knows that officials are not holding secret consultations, planning a course of action that it might spring on the public by surprise and foreclosing public discussion. An open democratic process allows the airing of bitter controversies; secrecy allows mistrust to fester.

    The new bill allows a mechanism for public bodies that have violated the open meeting law to remedy its action within 14 days. If it takes remedial action, it is no longer subject to the (meager) $500 fine provided for in the law. But a lot of damage can happen within a two-week period of secret meetings. The law need not coddle town boards, whose job it is to know the law and to follow it. The remedy can happen without the interim coddling.

    The law states that electronic communication among board members does not constitute a public meeting of the board. If board members are texting about what ought to be on the agenda, those texts remain public documents, but the public is not entitled to look over the shoulder of the texting board members. Common sense says there is a level of communication that is casual and not official, though an encounter of board members nevertheless constitutes a public meeting if public business is discussed, and it must follow the requirements of the open meeting law.

    The new bill is rather loose on what constitutes an agenda. It apparently can be decided in rather casual fashion and then it can be changed at the outset of the meeting. The purpose of the agenda is to make the public aware of what is to be discussed so people can attend if they desire. Boards have a responsibility not to be too cagey about their plans, though it would seem there will always be ways for officials to work around the rules, whatever the rules are. The point is to establish as a best practice openness and clarity about the conduct of the public business.

    As for executive sessions, the new bill states that minutes need not be kept. Since actions are not permitted in executive sessions, minutes would not be a record of decisions made. But a record of the participation of officials in the private discussion of an executive session would be useful at a later date when the minutes are eventually made public.

    The new bill makes a peculiar exception to openness, allowing board members to retreat behind closed doors to discuss appointments to public boards. Open discussion of appointments would be a service to the public, which has an interest in knowing how board members arrive at their decisions on who serves where to conduct the public business.

    The imperatives of openness in the conduct of public business did not weigh heavily enough with legislators this year. The governor can give them another chance.

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