October 25, 2014

Board

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Town manager erased e-mail detailing discussion

By Tom Gresham
Observer staff

The Williston Selectboard ignored a request from the Observer for e-mail records that might have shed light on the board’s deliberations over a recent dog bite complaint.

An e-mail message last week from the Observer to Selectboard members asking for copies of the correspondence went unanswered. When asked in person for his records of the e-mail messages, Town Manager Rick McGuire said he had erased the messages shortly after they had arrived in his computer inbox at Town Hall because he had categorized them as privileged. McGuire said he would not have turned over the correspondence even if he had not erased them.

Selectboard Chairwoman Ginny Lyons said in a telephone interview that the e-mail correspondence was not public record because the board was in deliberative session. State law exempts from the public records law records or internal materials prepared for the deliberations of a public agency acting in a quasi-judicial capacity, which the Selectboard was doing presiding over the dog bite complaint. It is one of 29 exemptions in the public records law.

Vermont Secretary of State Deborah Markowitz agreed with the town’s assertion that the e-mails were privileged under Vermont law. However, Markowitz said the Selectboard’s failure to respond to the Observer’s request for the records “was a sloppy violation of the technical terms of the law.”

State law requires a custodian of a record to deny in writing a request for a record he or she believes to be exempt within two business days of the request.

Ross Connelly, the publisher of the Hardwick Gazette and a member of the Vermont Press Association Board of Directors, questioned whether the town and Markowitz’s reading of the law follows the presumption of openness required by Vermont’s public records law.

State law says records pertinent to litigation to which the public agency is a party of record should be available upon the termination of the litigation. Connelly said it would make sense that records from deliberative sessions follow the same rule.

“Exchanging e-mails with each other to arrive at a decision in deliberative session, I think they can do that,” Connelly said. “I question whether it would remain privileged after the decision is made public and there is no longer any need for (the e-mails) to be privileged.”

Robert Hemley, a Burlington attorney who practices First Amendment law, declined to comment on the specifics of the case, but said the state’s public records law is not always clear.

“It’s a complex matter,” Hemley said. “These analyses of access to public records and public meetings are often complex and driven by the particular facts.”

McGuire has compared the Selectboard’s use of e-mail in deliberations to the correspondence among a panel of judges considering a case behind closed doors.

“It actually makes complete sense,” McGuire said. “A deliberation amounts to a conversation among Selectboard members. It could have taken place at the meeting, over the telephone or, in this case, through e-mail.”

The Selectboard held a hearing on the dog bite complaint on April 25. Brooks McArthur, a Williston resident, had filed the complaint after an alleged attack by a German shepherd owned by his neighbor, Michelle LeBlanc.

At the end of the hearing, the board decided to go into deliberative session to discuss the case. The board eventually decided to fine LeBlanc $500.

The Selectboard, however, did not issue a decision that night. Instead, Selectboard member Andy Mikell wrote a draft of a decision and board members revised the draft through e-mail over the course of the subsequent week. The Observer sought copies of those e-mails.

The Selectboard is not required to go into deliberative session when serving as a quasi-judicial board, but Lyons and Selectboard member Jeff Fehrs said there was never any debate about whether the board would use a closed session.

“I think it’s a very good process,” Fehrs said. “It’s very helpful to hear what others on the Selectboard think and to hear what their concerns are without being grilled by someone in the public or being stared at.”

The decision to use e-mail kept the deliberative session open until the release of the written decision on April 29. The use of e-mail by a governing board to make a decision is a violation of the open meeting laws, except in the case of deliberative sessions, according to a recent edition of the Opinions newsletter produced by Markowitz’s office.

McGuire said Wednesday morning he had received informal indications LeBlanc might appeal the Selectboard’s decision. LeBlanc asked for materials used to craft the Selectboard’s decision, but she did not seek the e-mail correspondence.

Lyons seemed surprised by the Observer’s interest in the e-mails, saying little of substance was discussed.

“The process here was pretty benign,” she said. “There’s no big secret.”

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Board

Share

Town manager erased e-mail detailing discussion

By Tom Gresham
Observer staff

The Williston Selectboard ignored a request from the Observer for e-mail records that might have shed light on the board’s deliberations over a recent dog bite complaint.

An e-mail message last week from the Observer to Selectboard members asking for copies of the correspondence went unanswered. When asked in person for his records of the e-mail messages, Town Manager Rick McGuire said he had erased the messages shortly after they had arrived in his computer inbox at Town Hall because he had categorized them as privileged. McGuire said he would not have turned over the correspondence even if he had not erased them.

Selectboard Chairwoman Ginny Lyons said in a telephone interview that the e-mail correspondence was not public record because the board was in deliberative session. State law exempts from the public records law records or internal materials prepared for the deliberations of a public agency acting in a quasi-judicial capacity, which the Selectboard was doing presiding over the dog bite complaint. It is one of 29 exemptions in the public records law.

Vermont Secretary of State Deborah Markowitz agreed with the town’s assertion that the e-mails were privileged under Vermont law. However, Markowitz said the Selectboard’s failure to respond to the Observer’s request for the records “was a sloppy violation of the technical terms of the law.”

State law requires a custodian of a record to deny in writing a request for a record he or she believes to be exempt within two business days of the request.

Ross Connelly, the publisher of the Hardwick Gazette and a member of the Vermont Press Association Board of Directors, questioned whether the town and Markowitz’s reading of the law follows the presumption of openness required by Vermont’s public records law.

State law says records pertinent to litigation to which the public agency is a party of record should be available upon the termination of the litigation. Connelly said it would make sense that records from deliberative sessions follow the same rule.

“Exchanging e-mails with each other to arrive at a decision in deliberative session, I think they can do that,” Connelly said. “I question whether it would remain privileged after the decision is made public and there is no longer any need for (the e-mails) to be privileged.”

Robert Hemley, a Burlington attorney who practices First Amendment law, declined to comment on the specifics of the case, but said the state’s public records law is not always clear.

“It’s a complex matter,” Hemley said. “These analyses of access to public records and public meetings are often complex and driven by the particular facts.”

McGuire has compared the Selectboard’s use of e-mail in deliberations to the correspondence among a panel of judges considering a case behind closed doors.

“It actually makes complete sense,” McGuire said. “A deliberation amounts to a conversation among Selectboard members. It could have taken place at the meeting, over the telephone or, in this case, through e-mail.”

The Selectboard held a hearing on the dog bite complaint on April 25. Brooks McArthur, a Williston resident, had filed the complaint after an alleged attack by a German shepherd owned by his neighbor, Michelle LeBlanc.

At the end of the hearing, the board decided to go into deliberative session to discuss the case. The board eventually decided to fine LeBlanc $500.

The Selectboard, however, did not issue a decision that night. Instead, Selectboard member Andy Mikell wrote a draft of a decision and board members revised the draft through e-mail over the course of the subsequent week. The Observer sought copies of those e-mails.

The Selectboard is not required to go into deliberative session when serving as a quasi-judicial board, but Lyons and Selectboard member Jeff Fehrs said there was never any debate about whether the board would use a closed session.

“I think it’s a very good process,” Fehrs said. “It’s very helpful to hear what others on the Selectboard think and to hear what their concerns are without being grilled by someone in the public or being stared at.”

The decision to use e-mail kept the deliberative session open until the release of the written decision on April 29. The use of e-mail by a governing board to make a decision is a violation of the open meeting laws, except in the case of deliberative sessions, according to a recent edition of the Opinions newsletter produced by Markowitz’s office.

McGuire said Wednesday morning he had received informal indications LeBlanc might appeal the Selectboard’s decision. LeBlanc asked for materials used to craft the Selectboard’s decision, but she did not seek the e-mail correspondence.

Lyons seemed surprised by the Observer’s interest in the e-mails, saying little of substance was discussed.

“The process here was pretty benign,” she said. “There’s no big secret.”

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