State of Vermont

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Office of the Secretary of State

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Good afternoon. I want to thank the good folks at the Vermont Leagues of Cities and Towns for affording me this opportunity to give you an update on our legislative agenda and to ask you for your continued guidance and feedback.

We each -- you in your municipal offices and we in our state offices -- we all do many things right. I hope we all do most things right. But, as we discover from time to time, we each sometimes do a few things wrong.

Sometimes no one ever finds out about our mistakes -- and sometimes our mistakes are prominently featured on the 6 o'clock news and in the daily paper.

Now, when one of you at the local level makes a mistake -- or even when you do the right thing but one of your constituents THINKS you made a mistake -- you know what happens next.

What happens is that our office often gets a call from the reporter or from the lobbyist or from the candidate or from the concerned citizens group or from the local gadfly.

I'd say the local whacko, but of course we don't allow language like that in our office.

And of course, what this good citizen wants is for us to declare that you are all wrong, that you're breaking the law or that the meeting was improperly warned or that the ballot item was phrased wrong.

In other words, they want something from our office that they can use.

And you know what they use it for...

They take our opinion and they use as a stick to hit you with. Or maybe they don't hit you -- they hit some other lucky local adversary.

Seriously, we really do agree with you quite frequently.

And when we disagree, it is in good faith.

And guess what? Sometimes when we disagree -- we can be wrong.

Be that as it may, I can report to you today that my experience for the past two years has only reinforced my belief that, however hot the local debate might get at times, Vermont's municipal officials are an honest, hard-working bunch who care a great deal about protecting the basic issues of equity and access in government.

Take it for what it's worth, that's my official opinion.

After 24 months, I still am in awe of the high esteem my predecessors earned over the years for the office I assumed.

The worth of my opinions on municipal affairs seemed to grow quite abruptly in January, 1995, when I took office. It really was startling, but I've come to learn that our office is a good deal bigger than we are!

We try our best. We try to learn from our mistakes. And, of course, we learn from our predecessors' two volumes of "Opinions" as well.

For the most part, our readings on municipal questions are the same as -- or at least are based on updates of -- the opinions of those who have come before us. And so, in that sense, our office will always be smarter than its current occupants.

I'm glad that is true -- and you should be too!

I'm relieved to find that public trust in the office is not entirely based on our ability to be right every time.

In fact, the trusting public will allow my office -- and yours -- to be wrong occasionally, as long as they believe in our honesty, in our good faith -- and, above all, our commitment to open government.

I want to talk for a few minutes today about a couple of Legislative agenda items that I think will nurture public trust in government.

One is prompted by a recent Supreme Court decision that illegal actions taken in executive sessions can be made to stick.

The other is prompted by a town attorney's recent advice that any oral or written communication between a select board and its lawyer can be held in secret -- that it is, (quote), "entirely outside of the purview of the Right to Know or Open Meeting Law" (unquote).

Neither of these opinions can be allowed to stand. Both are contrary to the openness that nurtures public trust in government.

We assume the Supreme Court decision is correct about what the law allows, and that the law itself is deficient in a way that neither we nor our predecessors ever realized. For years our office has been advising people that illegal actions taken in executive sessions are nullities.

Not so, says the court.

Well, it will be so by the end of this Legislative session, because we've got to get that fixed.

In a minute, I want to expand on why this is so important, but let me first mention the other Legislative item.

I think the lawyer's opinion, that attorney-client privilege trumps public access laws, is simply in error. I don't believe the existing law supports that interpretation.

But to settle the question -- and to end the notion of a town attorney as a walking justification for secret sessions -- I strongly support a bill introduced by three Rutland City legislators that would clear up any confusion on the point.

A portion of the bill states, very simply, that a public body may not go into executive session for the purpose of communicating with its attorney unless executive session is otherwise authorized under the relevant portion of the existing law.

Now we all know that the public needs laws like these to protect them from devious officials, rare as those devious officials may be.

But let me remind you, if I may, why honest officials need these laws as well.

It's a thankless enough task to serve on a local public board.

But think what happens, in the middle of a local controversy, when you go into executive session. Remember that local gadfly?

You each know who it is in your town.

A good person, perhaps, who for one reason or another loses all sense of proportion when it comes to political issues.

Or perhaps not such a good person. There are some mean people out there.

Or perhaps, good or bad, someone with a weakness for conspiracy theories. Perhaps someone who is, quite frankly, paranoid.

Whoever it is in your town, these people get alarmed as soon as their boards go into executive session.

They're alarmed. They're upset. And they've get our phone number!

We get these calls every week, sometimes a couple a day.

And they tell us what illegal deal they think is being hatched in secret.

And we listen, because we have an obligation to listen -- and also because they may be right!

The board is going to give away some real estate, they tell us.

Or sell the town truck.

Or move the waste transfer station next to someone's house.

They're going to take over the fire department or perhaps give it up.

They're going to drill for oil or ban churches or arrest the Queen of France -- the suspicions may be grounded in reality or not!

But they are real suspicions.

The people who call us are serious.

And they don't trust what's going on in the secret sessions.

For years, our office has been able to reassure them. With the minor exception having to do with real estate options, we could say, no action taken illegally in executive session can have any consequence.

Take a deep breath and relax, we could say. Stop worrying. Set your mind at ease: an illegal vote has no value. It's a nullity.

And we were wrong.

In Valley Realty v. Hartford, the Supreme Court said that a subsequent, legal vote can make an earlier, illegal vote effective, at least in some cases.

Not just that the board can later vote legally to take the action it voted on earlier in secret, but that a later, legal vote can make the illegal action effective as of the date the illegal action was taken.

In the Valley Realty case, a legal vote in 1993 revived an illegal action taken in 1989. In the words of the court, (quote), "the 1989 vote was valid, once ratified in public session in compliance with the open meeting law" (unquote).

As I said before, let's assume the decision is sound and it's the law that is deficient. This has got to be fixed for many reasons.

But let me return to my point about why honest officials need this deficiency fixed.

Now the suspicious citizen can no longer find reassurance in the knowledge that effective illegal actions in secret are impossible.

Quite the contrary.

This court decision dashes the embers of citizen distrust with a cup of gasoline.

And now, when the honest board member emerges from a perfectly appropriate executive session, nothing he or she can say will allay the fears that something fishy is afoot.

No longer can you look the citizen in the eye and say, "Perhaps you don't trust us, but the law protects you and limits us. No illegal action we could take in secret would matter, because no illegal secret action could be made to stick."

In the wake of Valley Realty v. Hartford -- at least until we fix the law -- the board member must look the suspicious citizen in the eye and say, "trust us, we didn't do anything illegal in tonight's meeting with the idea of validating it four year from now in a public vote."

Who needs the aggravation of facing paranoia, suspicion and hostility without a rock-solid executive session law to turn to?

Who wants to try to reassure suspicious constituents by saying, "Trust us, we're the government?"

I don't know about you, but a situation like that would make me suspicious of myself!

* * *

While we're on the subject of how openness in government nurtures public trust, there is another Legislative matter I'd like to mention today, and that is the petition that will be considered later this week concerning the Rutland County State Senate recount.

We get reminded every once in a while that elections are not about landslides. The value of the democratic process doesn't get a good test until a race comes down to a couple of votes.

I'd urge any of you who can make it to come to the State House later this week to observe and to listen as the arithmetically minor, but potentially very significant, errors are discussed -- discussed in open session, of course -- by the Senate panel considering the petition contesting the election.

For Rutland County and for the Senate -- and certainly for the petitioner and his adversary -- the discussion will be about who gets to sit in the Senate.

But it will be about many other things as well.

For us, as election officials, it will be about the importance of meticulous methodology and the importance of every mark on every ballot.

It also will be about the extent to which the public can maintain its trust in government, even in the face of error.

And I submit to you that openness is the key to that trust.

The ballots were counted under public scrutiny.

If errors were made in the counting, the errors were made in public.

The recount, too, was a public event.

I won't try to prejudge the final verdict on the significance of the errors. I'll leave that to the Senate.

But I will ask you to think, for a moment, about how much worse the situation would be had there not been openness in the process.

Secrecy breeds suspicion.

Openness nurtures trust.

And however the Senate rules on the petition before it, I predict that the public will maintain its faith in the process and in the officials, both in Rutland County and throughout the state.

And I submit to you that it is not because we are error-free, but rather because we make our mistakes honestly, in the open, where everyone can see us.

* * *

Now, very quickly, I'd like to offer a heads-up on a couple of other matters.

• As you may have heard here today, there is a very exciting project underway to get town offices in Central Vermont and the Northeast Kingdom hooked up to the Internet. My deputy, John Howland, has a small role in this and can give you details. There will be a technical person going around the state, available to help you out.

• As you know, this Legislature will consider some Motor Voter compliance legislation. Especially in the area of checklist purging, we need to modify our statutes, and we are facing a deadline of July 1.

• You also know that we now have an actual cost fee schedule in place for copying the public record. You have to abide by it only if you choose not to set your own fees by local legislative action.

  I want to thank you all for your cooperation in making this law work. It's quite a change for some of you, I know. And there will be inequities caused by the law. The fee schedule isn't perfect.

  But the law directs us to survey the results next summer and report back to the Legislature. So if you are having problems, don't give up. Let us know your experience with the new law and we'll include you comments in our report next year.

I guess it's appropriate to end my remarks, as I now begin my second term, by thanking you for your cooperation. Sometimes you have disagreed with something I offered as an opinion, or my deputy, or our elections director, Ellen Tofferi, but I hope you recognize that when we disagreed, we did so respectfully.

And when you call Ellen, or Leslie Hight or Tammy Stacey in her office, I trust that you can tell that we respect the work you are doing and take pride in our ability to assist you.

As I said, this office that I have the good fortune to staff for a little while was a great office before I came along and every day it seems to me somehow greater than the sum of its parts. I continue to be in awe of this tradition that is temporarily in my custody and I will count myself successful if I can leave at the end of my tenure with that greatness undiminished.

Thank you for the opportunity to speak with you today, and for the opportunity to serve you for another two years.

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