All portions of all meetings of a public body in Vermont must be open to the public unless there is a specific authorization set out in law that allows a meeting, or a portion of a meeting, to be closed.

Debates over closing a meeting in a particular case, therefore, tend to focus on the issues of whether a particular gathering constitutes a meeting of a public body, or whether the particular matter to be discussed qualifies for exemption from the general requirement that all meetings be open.

This openness requirement has the Vermont Constitution as its foundation. The specific guidelines are set out in Vermont law, and the interpretation of the law has been provided in a number of relevant decisions by the Vermont Supreme Court.

We begin with Chapter I, Article VI of the Vermont Constitution, which guarantees all Vermonters,

That all power being originally inherent in and consequently derived from the people, therefore, all officers of government, whether legislative or executive, are their trustees and servants; and at all times, in a legal way, accountable to them.

The law on open meetings is found in the Vermont Statutes Annotated at 1 V.S.A. § 310 and following. Section 311 sets the tone, declaring that "public commissions, boards and councils and other public agencies in this state exist to aid in the conduct of the people's business and are accountable to them..."

In deciding a 1993 case known as "Trombley," the Vermont Supreme Court provided a useful guide to applying this law. Our open meeting laws, the Court declared, are to be liberally construed in support of public access and exemptions to them must be strictly construed. Trombley v. Bellows Falls Union H.S., 160 Vt. 101 (1993).

Along with the Access to Public Records law, the open meeting law is perhaps the most important statute governing state and local government ever enacted in Vermont, because it ensures that government decision-making is a public process.

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The heart of the open meeting law is the statement that, with certain exceptions, "all meetings of a public body are declared to be open to the public at all times" (emphasis added). And what is a public body? The law defines it as

• "any board, council or commission of the state or one or more of its political subdivisions,
  
• "any board, council or commission of any agency, authority or instrumentality of the state or one or more of its political subdivisions, or
  
• "any committee of any of the foregoing boards, councils or commissions,
  
• "except that 'public body' does not include councils or similar groups established by the governor for the sole purpose of advising the governor with respect to policy." 1 V.S.A. § 310(3)

Note that the statute's special mention of an exemption for gubernatorial advisors has the effect of underscoring how inclusive the rest of the definition is.

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A public body is not present until a quorum of its members is present -- in most cases, a simple majority. That's the one way of telling whether a meeting is taking place or not: count how many members of the body are present.

Obviously, however, a quorum may simultaneously arrive at a ball game, a concert or a community dinner without triggering a meeting of the public body. Nor would the simultaneous presence of three select board members in a coffee shop necessarily constitute a meeting.

If the three members were to retire to the same booth to sip their coffee and discuss town affairs, however, the law requires them to have posted warnings, to invite the public and to keep minutes, for whether they intend it or not, the select board is in session.

Can two members of a five-member board huddle over coffee to discuss board affairs? Sometimes yes, sometimes no. If those two members have been appointed as a subcommittee to study an issue, they become a public body of two, and because a quorum of a subcommittee of two members is two members, any time they meet they are governed by the requirements of the open meetings law.

If they do not make up a quorum of any public body, however, the two members are free to meet privately on board business whenever they choose.

Occasionally, a board will appoint citizens to study a particular issue of importance to the state or town. Whether the subcommittee consists of board members, non-board members, or a mixture, it is a public body under the open meeting law.

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The law allows a meeting to be conducted by "audio conference or other electronic means," as long as the other provisions of the law are met. 1 V.S.A. § 312(a).

With a speaker phone, the board may meet, even though one member is in Florida and another is at home. The meeting can be legal as long as the phone system can allow the public to hear everyone who is speaking.

Those who are present only by speaker phone are regarded as being present in order to calculate whether a quorum is available, as well as for voting purposes.

Three members of a five-member board who participate in a telephone conference call, then, are in the same situation as the three board members meeting in a coffee shop, mentioned above. In the eyes of the law, a public body is meeting in each case.

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Executive sessions are opportunities for a public body to clear the room of the public. The law recognizes that the public interest is sometimes best served if certain matters discussed by the body are discussed in secret. These matters are narrowly defined and the Vermont Supreme Court, in the Trombley case, tells us that the itemized exemptions are to be narrowly construed in favor of openness.

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The open meeting law lists seven specific reasons why a board might enter executive session within a duly warned public meeting. These seven reasons are exclusive. 1 V.S.A. § 313(b). Unless a board has some justification to enter into executive session under one of the seven exemptions (or into deliberative session, as discussed elsewhere in this guide), it must meet in the open.

Section 313(a) states that a public body "may not hold an executive session except to consider one or more of the following:

"(1) Contracts, labor relations agreements with employees, arbitration, mediation, grievances, civil actions, or prosecutions by the state, where premature general public knowledge would clearly place the state, municipality, other public body, or person involved at a substantial disadvantage;

"(2) The negotiating or securing of real estate purchase options;

"(3) The appointment or employment or evaluation of a public officer or employee;

"(4) A disciplinary or dismissal action against a public officer or employee; but nothing in this subsection shall be construed to impair the right of such officer or employee to a public hearing if formal charges are brought;

"(5) A clear and imminent peril to the public safety;

"(6) Discussion or consideration of records or documents excepted from the access to public records provisions of section 317(b) of this title. Discussion or consideration of the excepted record or document shall not itself permit an extension of the executive session to the general subject to which the record or document pertains;

"(7) The academic records or suspension or discipline of students."

The most common reasons boards use to enter executive session are listed under exemption number (1): contracts, labor relations agreements with employees, arbitration, mediation, grievances, or civil actions (lawsuits). Note that citing one of these reasons is not enough, however. The board also must find that "premature general public knowledge would clearly place the state, municipality, other public body, or person involved at a substantial disadvantage." And note that a finding of "a disadvantage" is not enough; it must be a "substantial" disadvantage.

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Staff, clerical assistants and legal counsel, and persons who are subjects of the discussion or whose information is needed may enter executive session with the board or commission, but only at the discretion of the public body, and not at their own option. 1 V.S.A. §313(b).

The law allows executive sessions for discussions of certain topics, not for discussions with certain people. Many times, of course, a board will wish to meet privately with its attorney to discuss a topic that falls under the seven exemptions set out in section 313. That is perfectly proper. But the open meeting law applies to a public body at all times, without regard to whether or not its counsel is present.

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Before entering executive session, the board must hear a motion, citing the exemption under which the executive session is to be held, and two-thirds of the members of a state board or a strict majority of a local board must agree to the session. The motion and vote should appear in the minutes of the meeting.

As the Trombley case indicates, it isn't enough just to declare that a matter to be discussed justifies an executive session. The law requires that a good faith inquiry be made into whether the matter qualifies under one of the seven exemptions. Remember that merely wanting a matter to remain confidential does not justify going behind closed doors.

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In executive sessions, no binding action may legally be taken, with one exception. That is the securing of real estate purchase options, mentioned in exemption (2), above.

If the Fish and Wildlife Board wants to purchase a parcel of land, for instance, to build a new fish hatchery, the negotiations on the parcel and the decision to put money on an option may be made entirely in executive session. The final decision to enter into a contract to purchase the property, however, must be made in open session.

With the exception of such purchase options, the open meeting law insists that "no resolution, rule, regulation, appointment, or formal action shall be considered binding except as taken or made at such open meeting." 1 V.S.A. §312(a) That warning is repeated a few pages later, where the law states that "no formal or binding action shall be taken in executive session," other than the purchase option exception. 1 V.S.A. §313(a).

Executive sessions are occasions for discussing a subject, and not for taking action. The proper way to take action on a subject discussed in executive session is to end the executive session, resume the public session and then entertain a motion to take the action.

The law also warns against executive sessions that commence for legitimate reasons and then are used for consideration of other matters. The motion for an executive session, the law says, "shall indicate the nature of the executive session, and no other matter may be considered" (emphasis added) 1 V.S.A. §313(a).

Similarly, the exemption for discussion of confidential records comes with a warning that "discussion or consideration of the excepted record or document shall not itself permit an extension of the executive session to the general subject to which the record or document pertains." 1 V.S.A. §313(a)(6).

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The open meeting law requires that a board keep minutes of all public meetings, and make them available to the public within five days of a meeting. 1 V.S.A. §313(b)(2).

Since few boards meet within five days of a meeting, the first public copy of the minutes made available will likely not be approved by the board, so we recommend writing "unapproved" at the top, to avoid problems of interpretation later on. At the next meeting, the minutes may be reviewed, amended and approved.

Minutes need not be taken of matters discussed in executive session, although the minutes must reflect the fact that a board voted to enter executive session, giving the reason and the vote on the motion. Minutes taken in executive session may NOT be made public. 1 V.S.A. §313(a).

At a minimum, minutes must cover all topics and motions that arise at the meeting, including those that fail for lack of a majority vote, and give a true indication of the business of the meeting. Minutes should list all members of the public body present, as well as all other active participants at the meeting; and the result of any votes, with a record of the individual vote of each member if a roll call vote is taken. 1 V.S.A. §313(b)(1).

Minutes should be filed with the administrative home of the board, so that the public may have ready access to minutes, without having to hunt down a board member.

Be wary of how much is charged for copies of minutes. The standard is actual cost, which means the cost of reproducing the minutes, not some arbitrary figure.

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"Deliberations of any public body in connection with a quasi-judicial proceeding" are specifically exempt from the open meeting law. 1 V.S.A. § 312(e). Some definitions:

• Deliberations include "weighing, examining and discussing the reasons for and against an act or a decision, but expressly excludes the taking of evidence and the arguments of parties." 1 V.S.A. § 310(1).

• A quasi-judicial proceeding means a proceeding that is: "(A) a contested case under the Vermont Administrative Procedure Act; or (B) a case in which the legal rights of one or more persons who are granted party status are adjudicated, which is conducted in such a way that all parties have opportunity to present evidence and to cross-examine witnesses presented by other parties, which results in a written decision, and the result of which is appealable by a party to a higher authority. " 1 V.S.A. § 310(5).

When a board acts in a quasi-judicial capacity, such as making a decision suspending the license of a professional or deciding whether to grant a variance or an appeal, after the hearing is over and it's time to decide what to do, there is no requirement that the deliberations be open.

The board is allowed to meet privately to deliberate, as long as its decision in writing is made public. The law does not require a formal meeting to adopt the draft as the decision. 1 V.S.A. § 312(f).

Clearly, a board can't use the deliberative session exemption to justify excluding the public from administrative hearings. Anyone may attend the fact-finding portion of most board meetings. The exception is when a public official insists that a hearing on discipline or removal be closed to the public, and even then, if the matter has already become the subject of public discussions, making it private might be wrong.

That was the situation 1990 in the Trombley case, in which a grievance hearing relating to a Windham County high school teacher was closed. In 1993, when the Vermont Supreme Court ruled on the question, it held that the grievance hearing should have been open because the matter was already public knowledge.

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The open meeting law explains how to give public notice of meetings of public bodies. Meetings may be regular, special, or emergency in nature, and each different type requires different warning.

• Regular meetings -- those held on the first Thursday of each month, for example -- require only a resolution or bylaw for promulgation. The law requires that "this information shall be available to any person upon request." 1 V.S.A. § 312 (c)(1).

• Special meetings, which require at least 24 hours of warning, are warned differently. Notice must be "given to an editor, publisher or news director of a newspaper or radio station serving the area of the state in which the public body has jurisdiction, and to any editor, publisher or news director who has requested" notice in writing, on a calendar year basis. 1 V.S.A. §§ 310(4) & 312(c)(5).

  Since state boards and commissions have jurisdiction throughout Vermont, notice should be given to a number of newspapers or other media to ensure that adequate notice of the meeting is provided. Included among those notified, of course, must be all media that specifically request that notice be given to them.

  A request for this notice, by the way, applies only to the calendar year in which it is made, except that requests made in December apply to the following year as well. 1 V.S.A. § 312(c)(5).

  For local boards and commissions, notice should be given to the newspaper in which the town places official advertisements. Notices of special meetings must also be posted in at least three public places in town at least 24 hours before the meeting.

  Additional notice is required to each member of the board, orally or in writing, prior to each meeting, although members may waive notice of a special meeting. 1 V.S.A. § 312(c)(2).

• Emergency meetings "may be held without public announcement, without posting of notices and without 24-hour notice to members, provided some public notice" is given as soon as possible before the meeting.

  But "emergency" means "only when necessary to respond to an unforeseen occurrence or condition requiring immediate attention by the public body." 1 V.S.A. § 312(c)(3).

  An emergency meeting is a rare occurrence, like a meeting of a select board at the site of a flooded highway, when decisions have to be made to save a bridge. In that case, the niceties of the open meeting law give way to practical wisdom.

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As an acknowledgment of the difficulties some officials face in meeting their statutory responsibilities and fulfilling their duties to open meetings, the law also excludes "site inspections for the purpose of assessing damage or making tax assessment or abatements, clerical work, or work assignments of staff or other personnel" from the requirement that an open meeting be held to do these activities.

Similarly, "routine day-to-day administrative matters that do not require action by the public body may be conducted outside a duly warned meeting, provided that no money is appropriated, expended or encumbered." 1 V.S.A. § 312(g).

None of these terms is defined in the law, and for that reason it is wise for public officials to use these provisions conservatively, rather than risking trouble by an interpretation that keeps the public out of a particular meeting.

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The law recognizes the public's right to participate in public meetings. The right is not a license to butt in on every subject, however, and it doesn't convert a board meeting into a town meeting, but the public must "be given a reasonable opportunity to express its opinion on matters considered by the public body during the meeting as long as order is maintained. Public comment shall be subject to reasonable rules established by the chairperson." 1 V.S.A. § 312(h).

This right does not extend to quasi-judicial proceedings, and so, for example, there can be no public comment period at a suspension hearing, since those proceedings have established parties and a more formal agenda than a regular meeting.

The law doesn't define the phrase "reasonable opportunity to express its opinion," but every board ought to be generous in interpreting this provision, setting aside some time on the agenda for "public comment," and inviting any member of the public (not just taxpayers, voters or residents) to speak on any subject they feel is justified, not just what's on the agenda for that meeting.

The board may limit individuals as to the amount of time allotted to speak (five or ten minutes should be sufficient in most cases), and the chairperson may insist on order and some degree of dignity from the speakers.

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The statute provides that the attorney general or any person "aggrieved by a violation of the provisions" of the open meeting law may sue in Superior Court for "appropriate injunctive relief or a declaratory judgment." The court is directed to take up the case as soon as possible after it is filed. 1 V.S.A. § 314(b).

Citizens are not likely to obtain attorney's fees and costs from a challenge to a board's violation of the open meeting law, but many times individuals proceed to court without an attorney in order to ensure access to meetings otherwise deemed closed by a public body.

Criminal penalties are available against members of boards who knowingly and intentionally violate the provisions of the open meeting law. Such a violation would constitute a misdemeanor, and a violator may not be fined more than $500. 1 V.S.A. § 314(a).

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Public officials at every level have a fundamental obligation to encourage and facilitate citizen participation in the process of government. As part of that obligation, it is important that they be sensitive to accommodating those with special access needs.

The legal obligation of public bodies to provide access to citizens with special communication, mobility or other needs is a subject that is beyond the scope of this document. The following are offered as examples:

By law, the presiding officer of a state agency holding a judicial proceeding, a contested case hearing under Title 3, Chapter 25, or other hearing before an administrative agency, is obliged to appoint a qualified interpreter for any hearing impaired person who is a party or witness. 1 V.S.A. § 332(a).

The state is also obliged to provide interpreters for hearing impaired persons who have a "reasonable need" to transact business with a state board or agency; to participate in public hearings, conferences or public meetings; or to participate in any official state legislative activities. 1 V.S.A. § 332.

In these cases, notice must be given to the state agency at least five working days in advance of the need for the interpreter.

Information on rights to "reasonable accommodation" under the Americans With Disabilities Act is available from several web sites.

In scheduling meetings, state agencies should also remember Executive Order No. 28 (1986), which requires all meetings of state government open to the public to be conducted in buildings or facilities accessible to and usable by handicapped persons.