The Basics of Vermont’s Open Meeting Law
Vermont’s Open Meeting Law (OVS 1 V.S.A. § 310-314) mandates that the formation of public policy is public business and may not be conducted in secret.
Its purpose is two-fold: to guarantee the public’s right to speak at public meetings and to guarantee that all people have access to governmental deliberations and decision-making – specifically during the formulation of public policy. The Open Meeting Law is the manifestation that democratic principles are alive and well and that our governmental bodies are accountable.
It is an indispensable component of Vermont’s system of representative democracy. With the exception of deliberations in executive session, it is the law’s intent that public deliberations will be open to all interested members of the public. Legislative bodies, executive bodies, and administrative bodies (collectively referred to as "public bodies") are required to conduct their deliberations and formal actions in accordance with the law.
Although there are exceptions, any time a public body gathers to discuss public policy, conduct business or deliberate, it must provide adequate public notice of the meeting. Notice must be given in a writing or electronically sent communication that is designated for that specific purpose and that provides the date, time and place of the meeting (or a short description if special considerations apply) and the subject matter of the proposed business to be discussed. The formalities are less demanding for local governmental bodies than for state governmental bodies.
An interesting aspect of this law is that there are a multitude of penalties for violating its provisions. A person who believes that he or she has been denied the public’s right to participate in a meeting may petition the court for an injunction or other appropriate action. In addition, the Attorney General may file a civil action for an injunction or other equitable relief. Finally, any member of a public body that participates in a meeting that violates the Open Meeting Law is subject to a fine up to $500. These provisions are frustrating to those who simply wish to participate in the development of public policy. Unfortunately, they are necessary to ensure compliance.
The genesis of Vermont’s Open Meeting Law was a public policy battle for government accountability. Open records advocates were concerned that the political climate in Vermont was conducive to secrecy and encouraged by the establishment of the Franklin County Edison Electric Company in 1917 . This was the first power plant owned and controlled by a municipal corporation. Advocates claimed that it needed to be carefully monitored.
Their concerns like a criminal charge of fraud and abuse brought against the plant’s director the following year. The director pleaded guilty, but only served a short sentence. That did nothing to alleviate fears. Certainly many Vermonters agreed that government accountability in the wake of Franklin County Edison was vital and that its value would increase during times of controversy.
The above situation was compounded by concern about the privatization of what was once a purely local and limited activity. Local control of local interests was disappearing. Later, fiscal issues concerning the impact of military bases on electric utility rates amplified concerns about the propriety of public body transactions. As a result, an association of librarians, research crusaders in the "sunshine" movement, convened a council in 1965 and created the Vermont Statute Annotated (VSA). It provided the initial language for what has become Vermont’s Open Meeting Law today.
The law remains dynamic. For example, the original law did not apply to quasi-judicial agencies. Instead, in 1968, a bill was adopted that extended the law’s application to quasi-judicial agencies, including boards and commissions. Other instances of legislative amendment over time include: the inclusion of "electronic meetings" in 1999 to accommodate technological developments; a cash penalty, established in 1998, for willful violations of the law; the inclusion of email and other electronic communications in 2005 to address the increasing prevalence of new technology; and the requirement for a written record and transcription of executive session deliberations in 2006.
Perhaps the most important tactic for improving citizen participation recently is the posting of open meeting materials on governmental websites. While the federal Sunshine Act requires that reportable decisions be published in the Federal Register, no such requirement exists for States. However, Vermont is one of very few States that is home to an efficient open meeting site: www.Vermont.gov created by the SOVO. It provides a platform for open meeting materials that was inspired by the U.S. Department of Labor’s public disclosure initiative, "Open Government Directive" of 2008, under the Bush administration.
What the Open Meeting Law Requires
The Open Meeting Law is codified in Vermont Statutes Title 1, Section 310. It is intended to ensure that all meetings of governmental bodies are conducted in the public view. While the protection of individual rights is so important (and should continue), there has been a strong movement in the courts as well as through legislation to protect the public’s right to know.
The Open Meeting Law defines a "public body" as including:
(2) Any department, agency, board, commission or authority of state government or any department, agency, board, commission or authority of the state’s political subdivisions, or any combination of them supported in whole or in part by taxation or dedicated revenue;
(A) any board, commission, board of selectmen, development review board, board of water commissioners, public works commission, water and sewer commission, sewer commission or other entity, however designated or described, created or established by or under the authority of a government charter, general law, local ordinance or resolution, and responsible for rendering decisions in matters of public interest, including, but not limited to, the expenditure of public funds of the chartered or constituted government;
(B) any board of civil authority, board of listers or town school board; and
(C) any other department, agency, board, commission, board of selectmen, development review board, board of water commissioners, public works commission, water and sewer commission, sewer commission or other entity, however designated or described, created or established by or under the authority of a government charter, general law, local ordinance or resolution.
Meetings of public bodies in Vermont are covered by the Open Meeting Law. No formal group is required to meet the definition of "public body" before it is subject to the Open Meeting Law’s provisions.
There is a presumption that discussion (including emails) between a majority of public body members regarding public business are subject to the provisions of the Open Meeting Law unless the communication fits within a statutory exception. Public bodies and governmental agencies may hold "executive sessions" (closed meetings) "during which public business may be discussed" (§ 313). Executive session limitations are more fully addressed later in this section.
The Open Meeting law specifically prohibits "serial meetings". A serial meeting is defined as follows:
Any form of communication or gathering of a quorum by a majority of the members of a public body or any of its committees which is not held in accordance with the requirements of this section, shall be presumed to be a "serial meeting." (Section 310(3)).
Unless an exception applies, a public body must notify the public of a meeting at least 48 hours in advance, which notice must include the agenda. Notification requirements for regular and special meetings are outlined in § 312(a) and (b). A public body must also make all meeting minutes available to the public for inspection "promptly after the close of each meeting" (§ 314). Finally, all meeting minutes must be maintained for a period of not less than five years.
Exemptions to the Open Meeting Law
The Vermont Open Meeting Law contains several exceptions and exemptions that allow public bodies to meet behind closed doors under specific situations. The most common exception to the Open Meeting Law is for an executive session, which "is a non-public session". When in executive session, specific topics may be discussed that fall beyond the purview of the Open Meeting Law’s public forum requirement. According to the law, the public body must make an affirmative vote to go into executive session, and the vote is held in public.
The topics that qualify for discussion in executive session include:
- Discussion or consideration of record in a nonpublic session of a public body
- Labor relations or negotiations with employees or employee organizations
- A disciplinary or dismissal investigation or hearing
- The appointment, employment, evaluation, or salary of a public officer or employee
- Appointment of a public officer or employee
- Expulsion of a student or other disciplinary action taken against a student
- Discussion of contracts, pending or probable litigation, or an arbitration proceeding
- Criminal misconduct or a civil violation
- Preliminary negotiations for the purchase or lease of real property
A public body may go into executive session when it is discussing any of these exceptions, but the law is very specific about what actions are allowed while in executive session. For example, all public business must be conducted in the public session, meaning the public body cannot make a motion, discuss the item, and vote while in executive session. Instead, the public body should return to open session to take action on the item (and much more).
Obligations of Public Bodies Under the Open Meeting Law
The Vermont Open Meeting Law compliance requirements are two-fold. While the language of the statute outlines the steps that most public bodies are required to follow, there are a set of expectations imposed on public bodies of which they should be aware including:
- Posting prior to the meeting of all dates, times and subjects to be discussed.
- Providing specific records to the public upon request.
- Recording minutes.
- Maintaining a general schedule of meetings.
- Notifying the media of all special and rescheduled meetings.
- Posting notice of emergency meetings.
- Notifying the concerned municipality of real property transactions.
- Notifying the attorney general of executive sessions in certain instances.
- Filing emergency meeting notices once the emergency is over.
- Taking no action in executive session if a decision has been made in executive session.
- Allowing request for information (examination of records).
- Not discussing non-agenda items subject to executive session.
Regarding rules relating to posting prior to a meeting, every agenda shall include the date, place, time and subjects to be discussed in a manner which clearly informs the general public of any and all matters to be considered. If, at the time of the posting, any matter to be discussed is unknown, it is the duty of the public body to state generally the subjects to be discussed and to specifically state the general subjects of any anticipated executive sessions.
Public bodies are also required to maintain minutes of all open meetings, which must be labeled by the date and time of the meeting and the name of the public body. They must be available within five days following the meeting and must include the names of all members present, a general description of information presented, any decisions made, at a minimum, all motions, the name of the person making the motion, the person seconding the motion and the name of the vote. The minutes of the meeting should also identify those members who were not present, and a general summary of the discussion which occurred at the meeting. Minutes should be temporary as they are subject to the approval of the public body at its next meeting or in accordance with its normal schedule of meetings.
All public bodies must generally maintain a schedule of regular meetings in a location accessible to the general public. Such schedule is generally to be updated annually. All special and rescheduled meetings of public bodies, however, must be posted at least 24 hours before the meeting in or near the location of the public body’s normal meeting location and at the public body’s principal office if such office is located in another municipality. There are certain exceptions to this 24-hour rule, such as: emergencies, special meetings of the governing body with notice to the chair of the local board of school directors and special meetings of the school board or school directors.
Regarding penalties for non-compliance, if a meeting is held in violation of the provisions contained in the statute, the law provides for an action in Superior Court for declaratory and/or injunctive relief. To that end, the statute provides that (1) an order requiring the public body to cease the action or order, or to take specified action; (2) an order requiring that the action or order be publicized in a manner that the court determines appropriate; (3) an award of costs and reasonable attorney fees to a person who successfully obtains an injunction; and (4) an order that, after a certain point, all the actions of the public body be void. Although there is no statutory authority for money damages, the Vermont Attorney General has settled at least three cases related to open meetings through assured funding in the form of a court-approved assurance of discontinuance in lieu of civil penalties.
New Changes to the Open Meeting Law and Challenges
In addition to the open government directive, the Vermont General Assembly has included liability protections in response to increased concerns regarding frivolous lawsuits. From its inception in 1957 until 1988, the legislation allowed "any person" to address the court with a complaint about "violations of the open meeting law." After years of increased litigation in courts, the scope of who can bring an action was limited to only "interested persons," which is defined as a "person who has a substantial interest in any matter pending to or decided by a public body." 1 V.S.A. § 310(11). Although this change reduced the number of actions brought before the Superior Court and the Vermont Supreme Court, it did not stop them.
In 2011, the Vermont Attorney General’s Office investigated four cases of alleged violations of the Open Meeting Law by the Essex Town Selectboard. Two complainants filed actions, alleging that the Selectboard had violated the law. After investigating, the A.G. concluded that the Selectboard had violated public meeting law, and subsequently filed a civil action to obtain compliance. The Vermont Supreme Court heard the complaint on appeal, and issued its ruling in April of 2014. Town of Essex v. Brown, 2014 VT 45, 95 A.3d 568.
The Supreme Court crafted an extremely narrow interpretation of "interested person," finding that neither complainant in the case could proceed with their claim. The Court interpreted the statute to require that the plaintiff have a "direct personal stake in the outcome," like a property right, or a right to participate in the governance of the municipality, i.e. , a taxpayer. Both complainants in this case were residents of Essex, but neither were property owners of the town or taxpayers. By the Court’s interpretation the legislature intended for plaintiffs to have a vested stake in the outcome of the litigation.
Of note in this case is the fact that the Attorney General’s Office brought the complaint, rather than a private citizen or legislator, as is more often the case. The statute does not specify whether the A.G. may bring a complaint as an "interested person," or even if the A.G. has authority to do so at all. The Court declined to decide this issue, and instead wrote that "the better approach might be for the A.G. to file a complaint on behalf of the State, rather than on behalf of an ‘interested person,’ as the statute currently contemplates."
Thus, at present, either a private litigant that meets the "interested person" standard, or the State (perhaps with the support of a private litigant) may bring an action for violations of the open meeting law. As the court noted: We trust that citizens and public bodies will respond to [our] counsel and, in the spirit of legislative transparency, will continue to seek resolution of open-meeting disputes cooperatively and amicably, rather than rushing off to court. We encourage the Administrative Assistant to the selectboard—acting, along with the selectboard, as a public body—to reach out to the Attorney General whenever a question of compliance with the law arises. Budgetary constraints notwithstanding, we expect the Attorney General to investigate open-meeting complaints with reasonable promptness and to file civil actions where appropriate.
The Effects on Citizens and Participating in Democracy
The Open Meeting Law has a profound impact on citizens and how they engage with the political process at the municipal and agency levels. It encourages citizens to understand the decision-making process of their governmental entities and to involve themselves in that process in meaningful, constructive ways. An agency or legislative body that complies with the Law is more likely to gain the respect, confidence, and trust of its constituents and the general public. In short, the back-and-forth between citizens and representatives is both sanctioned and encouraged by Vermont’s Open Meeting Law. The following are examples of local participation in issues and disputes pursued by citizens under the Stone Speakout Provision, investigation of waste disposal under a Selectboard’s authority, and the outcome of citizens’ influence via petitions that became ordinances or charters.
Citizen Engagement in Committee Hearings under the Stone Speakout Provision Citizen engagement can happen prior to public hearings. In Re: Act 250 Land Use Permit of Herald of Gospel, Inc., 2008 Vt. 29, 183 Vt. 140 (2008), one can see an example of citizens being encouraged to express their views in a committee hearing. In the case, the town selectboard held land use permit hearings. The court addressed whether the selectboard violated the Stone Speakout Provision in an attempt to defend their decision. As to that claim, the Supreme Court stated that although the selectboard violated the provision, it was not a "flagrant" violation as the bylaw requiring that the board allow additional communications within a hearing was not plainly required by statute. The court also noted that "citizens have an important role in advising their government on decisions that help shape their communities." Id. at ¶ 32. The court went on to say that "the rules concerning the conduct of public meetings should be interpreted in a manner that encourages participation." Id. This case shows the importance of hearing participation by citizens prior to the final decision-making. Rather than passively waiting for a appeal, citizens can use the Open Meeting Law procedures to impact the decision-making process in its formative stages.
Citizen Engagement in Selectboard Oversight of Waste Disposal Selectboards are very important bodies for transparent and responsible decision-making. The Selectboard is a group of officials that are elected to their position, and vested with powers of the selectboard chair and members. It is a collective body of officials in charge of overseeing local governments and ensuring effective and responsible action. Efficiency in this entity is key to ensuring citizens are well-informed and can trust in the actions of their representatives. On August 15, 1991, the Town of Ferrisburgh Selectboard, acting in its capacity as the solid waste management jurisdictional authority ("JAR"), signed an agreement to accept waste from the Charter Corporation, a Class A landfill operator. Ferrisburgh’s Solid Waste Plan and certain waste haulers required that, if a JAR had a conflict with a contiguous JAR, a licensed hauler could not transport waste to that landfill until a mediation took place. The Selectboard did not hold the necessary hearings before signing the agreement. Citizens became involved shortly after the agreement was formed, and a series of appeals were filed against the jurisdictional determination of the Selectboard approving the waste disposal contract. See In re STV/DAA, 162 Vt. 430 (1994). (Ferrisnburgh I). After lengthy litigation, the Supreme Court agreed with the trial court’s ruling that a section 7723 hearing was required. Id. at 436. No Selectboard approval would be granted beforehand, without previous mediation and a JAR hearing in selectboard hearings. "Those who choose to invest time, energy, and effort to serve on a selectboard and to shoulder the burden of holding elected office cannot be faulted for the precipitous decline in voter participation. Selectboards should not be forced to disclose their contemplated votes to attract support." Id. The Supreme Court also held that a selectboard’s decision could not be appealed if the proper procedure was not followed. The Selectboard also released a series of press releases to clarify their position. These releases included a summary of the status of pending matters and a chronology of major events. Id. at 435. Vermonters are highly observant of their representatives, and take pride in their ability to self-govern. As evidenced by the Ferrisburgh waste ordinances, public engagement can directly impact the behaviors of local representatives.
Citizen Engagement Through the Petition Process Permanent citizens’ initiatives can sometimes be a very effective method to achieve legislation. These petitions can have significant impacts on citizens, possibly leading to increased costs or taxes, as well as burdening the economic interests of citizens. The Supreme Court has determined that citizens’ petitions will be granted if the petitions do not violate the constitution, statutory law, or policy of municipalities. See Stowe Land Trust, Inc. v. Green Mt. Club, 163 Vt. 681, 682 (1995). When such a petition is taken up by the town, the issue becomes whether the petition is "itself inconsistent with statutory provisions applicable to municipalities and therefore invalid." See id.
Tips and Tools for Working Under the Open Meeting Law
Open Meeting Law Resources are available from several sources. The Vermont Office of the Secretary of State not only oversees the statutory changes to the law, it also provides a guide to the general public regarding the Open Meeting Law, which can be found on its website. That document is the basis for many of the comments in this entry. The Secretary of State issues an annual "Vermont Secretary of State’s Sunshine Report," which summarizes the Open Meeting Law issues brought before it and suggestions for changes to it. There are also practical resources on the website for citizens looking for a more in-depth treatment of the law. For example, the Sunshine Committee of the Vermont House of Representatives "examines issues arising under Vermont’s Public Records and Open Meeting laws and may recommend improvements in those laws." Last year, that body met several times to take testimony, after which it produced a report that included 7 recommendations to the Legislature . These included adding a private right of action in civil court, requiring public entities to file their minutes and a mechanism for reviewing those minutes, and clarifying what constitutes a violation of a court order. Currently, the Sunshine Committee is tasked with continuing its work.
For public entities, there are several best practices: Ultimately, this is a law for "the people" and should be taken seriously by those in public office. The law provides a number of protections to ordinary citizens who wish to engage the political process, and if they are curtailed through technicalities or other arguments, the public’s trust in the process will inevitably suffer. Any public body that does not maintain the spirit behind the Open Meetings Law, but relies exclusively on procedural loopholes, will soon find the public discontented and at odds with its government. Citizens should be aware of their rights under the law and proceed appropriately, rather than presuming that they will be treated fairly.