Social Media and the Open Meeting Law VLCT Town Fair 2016 Sarah Jarvis, Staff Attorney II Municipal Assistance Center, VLCT

 Open Meeting Law Overview  How the Open Meeting Law Impacts the Use of Electronic Communications and Social Media  Electronic Participation at Meetings  Electronic Communications (Phone, , Texting)  Collective editing or organizing platforms (Google Docs, Base Camp)  Social Media (Facebook, Front Porch Forum) Topics

What is the Open Meeting Law? “All meetings of a public body are declared to be open to the public at all times, except as provided in section 313 of this title [on executive sessions].” 1 V.S.A. § 312(a) The entire law is found in 1 V.S.A. § §

Open Meeting Law - Why? Chapter 1, Article VI of the Vermont Constitution: “…all officers of government, whether legislative or executive, are their trustees and servants; and at all times, in a legal way, accountable to [the people].”

Open Meeting Law - How? The Open Meeting Law will be liberally construed in favor of openness and accessibility to meetings for the public. ~ Trombley v. Bellows Falls Union High School District No. 37, 160 Vt. 101 (1993).

Open Meeting Law - Who? The Law applies to every “public body” of a municipality. "Public body" means 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…” 1 V.S.A. § 310(3)

What is a Public Body? Public Bodies are Created by  Selectboard  Planning Commission  Cemetery Commission  Board of Listers  Library Board of Trustees  DRB/ZBA  Advisory Commissions  Board of Civil Authority  Conservation Commission Statute or Charter:  Board of Auditors  Board of Abatement  Local Board of Health  Water/Sewer Commission  Trustees of Public Funds  Local Liquor Control Board  Local Emergency Planning Committee

What is a Public Body? Public Bodies are Created by Vote / Resolution of Other Public Bodies: Public Body Committee Subcommittee

Open Meeting Law - When? The Law applies whenever a public body has a “meeting.” “Meeting” means a gathering of a quorum of the members of a public body for the purpose of discussing the business of the public body or for the purpose of taking action. 1 V.S.A. § 310(2)

Open Meeting Law - When? The Law applies every time you have the following: 1. A quorum (majority of members) of a public body; 2. Involved in a discussion or taking action (voting); and 3. The subject matter of the discussion is one over which the body has authority or responsibility.

Open Meeting Law - When? “Meeting” means a gathering of a quorum of the members of a public body for the purpose of discussing the business of the public body or for the purpose of taking action. 1 V.S.A. § 310(2)

Open Meeting Law - When? “Quorum” is both:  the legal minimum number of members required to take action; and  the threshold at which the Open Meeting Law applies.

Open Meeting Law - When? The Law applies every time you have the following: 1. A quorum (majority of members) of a public body; 2. Involved in a discussion or taking action (voting); and 3. The subject matter of the discussion is one over which the body has authority or responsibility.

Open Meeting Law - When? The physical location of the members does not matter. Phone calls can be “meetings” Active participation likely is not required A member who does not speak or vote is likely still counted toward quorum The timing of a member’s participation likely is not a factor. Group s may be “meetings” Comments on social media platforms may be “meetings”

Exemptions The Open Meeting Law does not apply to:  Communications to schedule a meeting, organize an agenda, or distribute materials for discussion at a meeting.  Site inspections for the purposes of assessing damage or making tax assessments or abatements  Clerical work or work assignments of staff  Routine day-to-day administrative matters that do not require action by the public body provided no money is appropriated, expended or encumbered. 1 V.S.A. §§ 310(2), 312(g)

Exemptions The Open Meeting Law does not apply to:  Deliberative sessions. 1 V.S.A. §§ 312(e), (f)  Executive sessions. 1 V.S.A. §§ 312(a), 313

Executive Session vs. Deliberative Session An executive session is a closed portion of an open meeting. Only permissible for discussion of one of the subjects listed in 1 V.S.A. § 313(a). A deliberative session occurs only in conjunction with a quasi-judicial proceeding. It occurs when a public body weighs, examines, or discusses the reasons for or against an act or decision based on the evidence received at a public hearing held in conjunction with a quasi-judicial proceeding.

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Open Meeting Law Requirements Provide advance public notice of meetings. 1 V.S.A. §312(c) Produce and post an agenda. 1 V.S.A. § 312(d) Make meetings open to the public. 1 V.S.A. § 312(a)(1) Allow for public comment at meetings. 1 V.S.A. § 312(h) Take minutes at all meetings. 1 V.S.A. § 312(b)

Open to the Public All meetings of a public body are declared to be open to the public at all times, except as provided in section 313 (Executive Session) of this title. 1 V.S.A. § 312(a)(1)

“Open to the Public”? The protections of the Open Meeting Law include not only a "right-to-know" about the meeting but also a "right to be present, to be heard, and to participate." ~ State v. Vt. Emergency Bd., 136 Vt. 506 (1978)

Public Comment “At an open meeting the public shall 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)

Public Comment Not Required In Quasi-Judicial Hearings “At an open meeting the public shall be given a reasonable opportunity to express its opinion on matters considered by the public body during the meeting so long as order is maintained … This subsection shall not apply to quasi- judicial proceedings.” 1 V.S.A. § 312(h)

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How the Open Meeting Law Impacts the Use of Electronic Communications and Social Media

Electronic Participation at Meetings “As long as the requirements of this subchapter are met, one or more of the members of a public body may attend a regular, special or emergency meeting by electronic or other means without being physically present at a designated location… [and] may fully participate in discussing the business of the body and voting to take action…” 1 V.S.A. § 312(a)(2)

Electronic Participation at Meetings Requirements of electronic participation: 1. Absent member identifies himself or herself when the meeting is convened; 2. Absent member can hear and be heard throughout the meeting; and 3. Votes that are not unanimous are taken by roll call. 1 V.S.A. § 312(a)(2)

Electronic Participation at Meetings Because 1 V.S.A. § 312(a)(2) does not require active participation, if a member follows the requirements of 1 V.S.A. § 312(a)(2), he or she is counted toward the “quorum” of the meeting EVEN IF he or she does not speak or otherwise actively participate in the meeting. Example: 2 out of 5 members of a board physically present in the meeting, 1 member attends by phone, but remains silent … that is sufficient for the body to take a binding vote

Remember... “Quorum” is both:  the legal minimum number of members required to take action; and  the threshold at which the Open Meeting Law applies.

Electronic Participation at Meetings Therefore a member participating electronically will likely also be counted toward the threshold at which the Open Meeting Law applies EVEN IF he or she does not speak or otherwise actively participate. Example: 3 out of 5 members of a board on a conference call and 1 remains silent … that may be treated as a “meeting” (which must be warned, open to the public, etc.)

Electronic Participation at Meetings You can be in compliance with 1 V.S.A. § 312(a)(2) if you participate at a meeting by phone, Skype, Face Time, etc. BUT It is impossible to comply with 1 V.S.A. § 312(a)(2) if you “participate” at a meeting by text or .

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Electronic Communications Phone, , and Texting between a quorum of members IS specifically allowed in limited instances: “ ‘Meeting’ shall not mean written correspondence or an electronic communication, including , telephone, or teleconferencing … for the purpose of scheduling a meeting, organizing an agenda, or distributing materials to discuss at a meeting…” 1 V.S.A. § 310(2)

Electronic Communications Phone, , and Texting between a quorum of members IS ONLY allowed for:  Scheduling a meeting;  Organizing an agenda; or  Distributing materials for discussion at a meeting.

Electronic Communications BUT that correspondence / those communications are subject to the Public Records Law: “… provided that such written correspondence or such an electronic communication that results in written or recorded information shall be available for inspection and copying under the Public Records Act…” 1 V.S.A. § 310(2)

Electronic Communications Also permissible: Electronic communication between a quorum as part of the deliberative process in a quasi-judicial proceeding.  1 V.S.A. § 312(e): “Nothing in this section or in section 313 of this title shall be construed as extending to … the deliberations of any public body in connection with a quasi-judicial proceeding.”  1 V.S.A. § 312(f): “A written decision issued by a public body in conjunction with a quasi-judicial proceeding need not be adopted at an open meeting if the decision will be a public record.

Collective Editing and Organizing Platforms GoogleDocs, Base Camp, etc.  Use IS permissible in the context of deliberative session (e.g. by a DRB when drafting a land use permit decision) as per 1 V.S.A. §§ 312(e), (f)  Otherwise, it is generally NOT possible to use collective editing platforms in compliance with the Open Meeting Law (because there is no advance public notice and because they are not completely open to the public)

Social Media Platforms Facebook and Front Porch Forum:  MAY be used to provide notice of meetings, hearings, and as a general means of communication about municipal subjects. HOWEVER:  Notice via these platforms DOES NOT take the place of notice that is required by the Open Meeting Law

Social Media Platforms Facebook and Front Porch Forum:  The OML does not impact the use of social media by an individual member of a public body, even when posting or commenting about municipal business. BUT  The participation of a quorum of members on a social media site MAY constitute a “meeting” under the OML, even if some of those members are passive participants.

Questions ? Contact VLCT’s Municipal Assistance Center: (800)