Montpelier’s mayor and city councilors apparently didn’t violate state law by discussing official business outside a meeting, the Vermont attorney general’s office indicated in a letter Wednesday.
Mayor John Hollar, in advance of a Nov. 9 public meeting, called at least two City Council members to discuss City Manager Bill Fraser’s contract, a lawyer at the AG’s office wrote to City Clerk John Odum. Odum asked the AG’s office last month to investigate whether those calls violated Vermont’s open meeting law.
If a third councilor had been on the line at the same time, it would have violated state law, the AG’s office said. Three members of the six-person council plus the mayor would constitute a quorum. Vermont law forbids a quorum of any public body from discussing official matters outside public meetings.
Council members said Hollar did discuss the issue with three of them, but not simultaneously. The attorney general’s office said it found no indication of discussion by a quorum.
Hollar said he did nothing wrong but that he’ll reconsider how he conducts the business of his office. Other council members and residents have said the calls represented an ethical breach if not a legal one.
Vermont law and Vermont Supreme Court case law state that “when you’re looking at open meeting law and trying to interpret it to apply it … the law is supposed to be interpreted liberally to err on the side of openness and transparency,” said Senior Assistant Attorney General Michael Duane.
A distinction exists between how officials should interpret the law in practice and how law enforcement officers like those at the attorney general’s office may enforce it, Duane said in an interview.
“When you’re looking at enforcement … you look more at the letter of the statute and the language of what it says,” Duane said.
Vermont statute, Duane said, prohibits discussion of official business outside publicly noticed meetings only when there’s “a gathering of a quorum … and that means something.”
Of the calls Hollar made to council members, Duane said that “technically speaking, that’s not prohibited by Vermont law. That’s the way the law’s written. Some states don’t have a quorum trigger. We have a quorum trigger.”
Hollar, a lobbyist and attorney, said he followed both the letter and spirit of the law.
“I don’t believe a conversation that doesn’t involve a quorum violates the intent of the statute” on public meetings, Hollar said.
Legislators meet outside the Statehouse all the time to discuss official matters, Hollar said, and they must in order to conduct state business effectively.
“I don’t believe the law’s ever been interpreted to include individual conversations by individual members,” Hollar said. “If the expectation is that those shouldn’t happen, I think the law should make that explicit.”
Nevertheless, he said that “as a practical matter … I’ll certainly reconsider any kind of outside conversation, for better or for worse.”
A majority of the councilors, plus Hollar, have indicated they don’t intend to renew Fraser’s contract, although no formal vote has been taken.
“I’m disappointed” with the AG’s letter, said councilor Dona Bate, who was in the minority. “I know for myself the spirit (of the law) has absolutely been infringed upon.”
As written, Vermont law would allow Hollar to call each city council member in turn, and to deliberate with each of them the same question of public policy, outside of any official meeting, Bate said. The same discussions would be prohibited if carried out through a single conference call, she said.
Officials ought to recognize that deliberating a question of public policy — either in turn or simultaneously — outside an official meeting violates the intent of requiring them to conduct the city’s business in public, she said.
Moreover, Bate said, Hollar appears to have deliberated Fraser’s contract with a majority of the council, but not simultaneously.
Council members do have the power to prohibit conversations outside public meetings like those Hollar initiated, Bate said, and she’s considering proposing such an ordinance.
Another council member said Hollar’s phone calls weren’t in themselves improper, but she was troubled by the fact Hollar chose to discuss Fraser’s contract only with council members sympathetic to his point of view.
“It’s not uncommon for members of the council to check in with each other about … how they’re feeling about particular issues,” said councilor Anne Watson. “It’s pretty clear that the mayor checked in with people, but not everybody, and that is the part that feels a little weird. Maybe he didn’t feel like he needed to check in with everybody.”
“I think we could’ve gone about this in a more ethical way and been really above reproach,” Watson added.
Council members have given few clues as to why they’d like to replace Fraser, other than to say the city could benefit from new leadership. Fraser has been manager for more than 20 years.
Private individuals shouldn’t have their work performance debated in public meetings, Hollar has said.
Duane did note at the close of his letter “that the Vermont Secretary of State’s recent ‘A Guide to Open Meetings,’ revised September 2016, appropriately cautions public bodies to be mindful of the public’s right to know, and to avoid communications and gatherings that could, under some circumstances, raise questions about whether a violation of Vermont’s Open Meeting Law has occurred.”
