For Immediate Release

For further information contact:

James Marc Leas 802 864-1575

Complaint filed with Vermont Attorney General alleges open meeting law violation

Requests investigation and enforcement

Vermont Attorney General Bill Sorrell received a letter today asking him to investigate violation of Vermont’s open meeting law by three South Burlington City Councilors, Pam Mackenzie, Chris Shaw, and Pat Nowak.

The open meeting law finds support in article 1, chapter 6 of the Vermont Constitution, which provides:

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.

As the Vermont Supreme Court said:

In 1957, the Vermont Legislature enacted the Open Meeting Law.  The Legislature’s purpose was to “give meaning to Chapter I, Article 6 of the      Vermont Constitution.”  Rowe v. Brown,    Vt.    ,    , 599 A.2d 333, 336 1991). (Animal Legal Defense Fund, Inc v. The Institutional Animal Care and Use Committee of the University of Vermont and University of Vermont http://libraries.vermont.gov/s… 1992)

“As the first line of defense against corruption, the importance of the open meeting law cannot be over stated,” said South Burlington attorney James Marc Leas, who submitted the letter. “This law is a check on the ability of a quorum of city councilors to meet privately with monied interests. Allowing its degradation opens the door wide to corruption.”

“Like everyone else, law-makers, including city government officials, must be held fully accountable when they break the law,” said Mr. Leas. “The oath of office provided in the Vermont Constitution and sworn by the Attorney General to ‘do equal right and justice to all persons’ would be devoid of meaning if he gave public officials a pass because of who they are or the position they hold.”

The three councilors, Pam Mackenzie, Chris Shaw, and Pat Nowak, each announced their attendance at a meeting of the South Burlington Energy Committee on February 15 at a South Burlington City Council meeting three days later 13:50, 17:47, and 21:56 on CCTV.  Additional facts were presented in a news item on WPTZ on February 19, “Accusations fly about open meeting violations, City lawyer says councilors did nothing wrong” http://www.wptz.com/news/vermo… an article in the Burlington Free Press on February 19, “Violation of open meeting laws alleged in South Burlington, Three city council members convened without warning” http://www.burlingtonfreepress… and in an article in Seven Days, on February 19, “South Burlington Councilor Decries ‘A Mockery of Democracy'” http://www.sevendaysvt.com/Off…

Several residents brought the violation of the open meeting law by a quorum of the City Council to the attention of the Council immediately after the opening remarks by City Council members on February 18 [23:30 and 59:15 on CCTV].

City officials in denial

Also on February 19, City Manager Kevin Dorn issued an email stating “there was no violation of the open meeting law.” However, Mr. Dorn’s email self-servingly misquoted the law (he wrongly asserted that for the law to be violated the councilors had to take action on city business rather than merely participate in discussion of city business or listen to discussion of city business. In his email, Mr. Dorn replaced an “or” in the law with an “and” to reach this result).

After the misquoting was pointed out by Keith Epstein, a member of the energy committee, and by James Marc Leas, in a later email, Mr. Dorn then further incorrectly insisted that the councilors “did not attend the GUEP meeting to discuss or conduct the business of the public body (the Council) nor did they do either of those things.” However, Mr. Dorn omitted mention of the fact that all three councilors did in fact discuss the business of the city during the meeting and that one of them had been invited to give a speech at the meeting and did speak.

After the failed interventions by the City Manager failed to quell the issue, in response to a request from Mr. Dorn, on February 19 City Attorney Jim Barlow issued a memorandum supposedly addressing the facts and law at issue. The memorandum, “Alleged Open Meeting Law Violation” http://www.burlingtonfreepress… was posted to the web site of the Burlington Free Press. However, like the email from Mr. Dorn, the memorandum failed to mention the fact that all three of the city councilors spoke at the meeting. With the facts wrong, there was no way the memorandum could be relied upon as reaching a correct conclusion.

That city business was discussed at the February 15 energy committee meeting is demonstrated by the 3-page list of ideas for action generated during the discussion (attachment B).

The memorandum also omitted mention of the clear direction provided by Vermont Secretary of State Jim Condos in a presentation, “Got Transparency 2013” http://www.google.com/url?sa=t…

The presentation explains what is “discussing the business of the public body [the city council]”:

• Discussing anything that the public body has the authority to oversee.

• Open Meeting laws apply regardless of where a quorum of the public body is gathered

The assertion in the memorandum that the open meeting law does not apply if the council voted and “no further action by the Council was necessary or required for the City’s participation in this event,” is in sharp conflict with the law as written, with the constitutional provision, and with direction from the Secretary of State. Under the direction from the Secretary of State, the open meeting law applies if the quorum is present when “anything the public body has the authority to oversee” is discussed. Requirement for further action by the Council is irrelevant, under the law and under the direction from the Secretary of State.  

Attached is the letter requesting investigation and enforcement submitted to Attorney General Bill Sorrell by James Marc Leas. Also the three attachments to that letter, including the various emails and the list of ideas generated during discussion at the February 15 meeting.

The violation of open meeting law by the three members of the South Burlington City Council immediately follows the charge of open meeting law violation by one of them, Pam Mackenzie, in her other capacity as chair of the Vermont Public Television Board.