Recent concerns expressed by the Vermont Press Association about the passage of the Open Meeting Law (H.497) need some response. I chair the Senate Government Operations Committee which is the committee, along with House Government Operations, that worked on, crafted and ultimately passed the bill.
While not perfect from everyone’s perspective, it is a vast improvement over the existing law. A few of the things in the bill that were not the subject of the VPA’s criticism are: it defines when electronic communications can be used; it makes meetings ADA compliant; it requires minutes and agendas to be posted; and it allows anyone to request notification of special meetings.
An issue such as this requires a careful balance of the public’s right to know and the ability of mostly volunteer public bodies to do its business. While there are some boards that might deliberately try to hide their doings from the public, for the most part boards are trying to do the right thing. To that end this bill becomes a compromise -- it is not as strong as VPA wanted, but it is stronger than many others would like.
I will address the specific complaints raised by VPA.
The legislation allows do-overs rather than having members face criminal or civil actions and doesn’t limit the number of do-overs that can happen. Currently the only action a person who believes a board has violated the open meeting law has is to file suit against them in court. Many people will not do that because of the time and cost. This is meant to be an intermediary step. It allows someone to file a violation with the board. The board then has seven days to acknowledge (and cure) or deny. The cure can be by ratifying or voiding the action taken at the illegal meeting and it must include the adoption of "specific measures that actually prevent future violations."
The legislation allows the board to go behind closed doors to interview and select candidates for public positions. This is currently the case. The law currently reads, boards may go into executive session for "the appointment or employment or evaluation of a public officer or employee." The new law would not change that but would specify that "the public body shall make final decision ... in open meeting and shall explain the reasons for its final decision during the open meeting." This may be misused -- we would hope it would not. Consider this one example -- the town clerk resigns midway during her term. Someone is interested but would like to talk to the Selectboard about what it involves before making a decision and wishes that her current employer not know of her interest. This would give the ability for that to happen.
Does the new bill give a false sense of security of recovering legal fees by leaving it up to the courts? The bill actually says that the court shall assess the costs unless it finds the body had a basis in law and it acted in good faith, or that the violation was cured. We trust the courts to make all kinds of decisions, certainly this is no different and they are not going to be hoodwinked by improperly acting boards.
It is not a perfect law, but it does allow people to have some recourse other than filing suit, it allows boards who might have unwittingly violated the law to correct their actions, it requires them to take steps to ensure it will not happen again, and for the first time it allows a complainant to recover legal costs.
The committees had input from VPA, Vermont League of Cities and Towns, School Board Association, private attorneys, legislative attorneys, ACLU, and many individuals. We felt the law was carefully crafted and a reasonable compromise between very divergent views.
Jeanette White, Windham County Senator and Chair, is the chairperson of the Senate Government Operations Committee.