Planning Commission splits in response to claim of an Open Meeting Law violation

The Planning Commission says it did not violate the Open Meeting Law in formulating the 2020 Town Plan. The vote on that position was four in favor, two against, and one abstention. In a letter responding to the claim of a violation, the PC admits that whether it broke the law is “not entirely clear.”

At issue are a number of “working groups” formed to facilitate the drafting of the Town Plan. Three residents, including a Planning Commission member, say those working groups did not comply with the Open Meeting Law when they held meetings. “[T]here were no announcements of these meetings, no agendas and no minutes and the public was not invited or a part of the meetings that took place,” said the letter asserting a violation of the Open Meeting Law.

Of note, a different member of the Planning Commission says he advised the Planning Commission long ago in writing that the working group arrangement violated the Open Meeting Law.

In response, the Planning Commission says it had nothing to do with the working groups, even though, the groups consisted solely of members of the Commission. The work by these groups “was all done at the request of the Planning Director, and not as the result of any formal action of or by the Planning Commission itself,” according to the letter of October 16, 2020 from the PC.

Moreover, the Planning Commission says that for a working group to be subject to the Open Meeting Law, it needs to be a “subset of the board”. But, “these working groups were not committees of the Planning Commission.”

The Planning Commission also observes that the public was not harmed because the Commission reviewed the work-product of the working groups in public session.

Cure

The Open Meeting Law requires the public body to cure any violations, by voiding or ratifying the the actions taken at the improper meetings. The statute further requires the adoption of “specific measures that actually prevent future violations.”

Without admitting any violation, the letter from the Planning Commission proposes to cure. First, it “will direct the Planning Director to immediately discontinue the use of working groups.”

In addition, the Commission says it will “take such other steps as are reasonable and appropriate to ‘cure’ any alleged Open Meeting Law violation that may have occurred.” What that means, in fact, is not clear. I doubt the Planning Commission can ratify actions of the working groups, without knowing what they did. But, you never can tell. Voiding those action might result in the Town Plan being void.

Accountability

The issue to me is one of accountability. As note by the Vermont Supreme Court in its 2019 decision of Severenson v City of Burlington:

Public meetings put on display the information relied upon, the course of deliberations, and the articulated rationales supporting the ultimate decision. Open meetings provide an opportunity to inform the general public about the decisions a public body makes and the execution of leadership exercised by that body. Working in the open can go a long way to creating trust in the results.

Is it enough that the Planning Commission reviews the work of the Planning Director and his private working groups? Or, does penning the first draft in private shortcut the deliberative process to the detriment of the public and the board?

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