Whether Norwich constructs a sewer to service the Village and Route 5 South will certainly be a hot button topic, as it has been for years. However, I did not anticipate the first button pushed to be a dispute about the Vermont Open Meeting Law (OML). Sadly, the dispute was easily avoidable, because the Selectboard resolved the same OML question in December 2019.
At the end of this post, I think out loud about who decides these public notice issues.
In June, the Planning Commission appointed three of its members to what it called Wastewater Working Group. Its task is “to study wastewater options available and report back to the Planning Commission,” according to the draft meeting minutes for the June 24, 2020 PC meeting. Since that time, the Working Group has met, at least twice, perhaps more. The meetings took place without public notice, in a non-public setting, and with no meeting minutes.
In the case of an advisory subcommittee, there might be some confusion about whether the OML applies. BUT, the same issue confronted the Selectboard in December 2019 the Town Facilities Working Group, the group reviewing the EEI proposal. After consulting with the Vermont League of Cities and Towns, the Selectboard concluded that a Selectboard appointed, advisory working group needed to comply with the OML.
Stubborn?
Planning Commission members are not experts on the Open Meeting Law. Here, following the advice of the Director of Planning and Zoning Rod Francis, the Working Group “concluded” in non public session that the OML did not apply. What troubles me is that the Working Group and the Director of Planning and Zoning declined to reexamine their position when provided additional information.
First, Stuart Richards forwarded an email from Jenny Prosser, General Counsel & Director of Municipal Assistance for the Vermont Secretary of State’s Office. Her view was clear. The OML applies to “the committees and subcommittees of municipal boards. 1 V.S.A. § 310(3). There is no ‘work group’ exception.”
Also, I advised Director Francis and Mr. Richards that the “Town went through this same OML exercise with the Town Facilities Working Group. After consideration of the issue, the Selectboard’s conclusion was that the OML applied. I think the issue is settled, at least in Norwich, for all subgroups of committees or commissions.”
Thinking out loud: Who decides?
Town Manager Herb Durfee stepped in and advised Director Francis that the Open Meeting Law applied. At Mr. Richards request, the Town Manager asked Director Francis to cure past violations of the OML.
I don’t want to stand on ceremony, but the email discussion is with the Town Manager and the Director of Planning and Zoning. Where is the Planning Commission and Wastewater Working Group on the OML issue? Shouldn’t they be involved?
Moreover, at least three lawyers are on the Planning Commission, including the Chair. Did any of them bother to read the email from general counsel for the Secretary of State? One of those lawyers is on the Working Group. Does the PC follow the advice of staff, without examination of all relevant materials?
Moreover, it is not clear whether Director Francis met with the Planning Commission, before stating an official position. The Planning Commission has yet to meet on the topic. At its July meeting, it agreed to discuss the matter at its August meeting.
The public does not know when the Working Group met to discuss the topic. Even if the OML did not apply, the Working Group could have followed the example of the Affordable Housing Subcommittee and met publicly. Why did it choose not to?
