TRSU displays pattern of Open Meeting Law violations Powden's question reveals boards go into executive session without knowing why

By Shawn Cunningham
©2019 Telegraph Publishing LLC

A Chester Telegraph analysis of the meetings of the Two Rivers Supervisory Union Board of Directors and of those of its school district boards reveals eight recent instances of lax observance of the laws that protect the public’s access to public meetings.

A May 2 revelation that TRSU board members did not know why they were entering into an executive session when they were required to decide if the closed door session was appropriate resulted in a complaint by The Chester Telegraph alleging a violation of Vermont’s Open Meeting Law.

The Telegraph’s first inkling that members were uninformed about executive sessions came on March 21 with the unexpected election of Joe Fromberger to the chair of the Green Mountain Unified School District. Late in the meeting, TRSU Superintendent Meg Powden offered a recess to tell the new chairman what they would be discussing in the scheduled executive session. It soon became clear that board members had not been told why they were expected to exclude the public from their discussions.

Now, a second complaint emailed on Tuesday, June 4, to Powden and members of the three TRSU boards by The Telegraph, points to eight other meetings of either the supervisory union or school district boards in which a board banned the public from its discussion and decision making process in violation of state law. You can read that complaint here.

If it is found that the boards did violate the law, the “cure” for the violation includes revisiting the decisions made as a result of those meetings and a vote to ratify or annul the previous actions. Those include 2.75 percent raises for non-bargaining staff, including the administration, and a 4 percent raise and a two-year contract extension for Superintendent Meg Powden.

Violations going back nine months

The Telegraph looked at meeting minutes and videos between September 2018 and March 2019, and discovered what could be construed as knowing and intentional violations of the Vermont Open Meeting Law. Here is an explanation of the law by the Vermont League of Cities and Towns.

The complaint also notes that The Telegraph does not consider its May 7 complaint resolved by the statement of TRSU board chair Paul Orzechowski, which was given at a hastily convened video conference meeting of the SU board on May 16, the final day they could respond under the law. At that meeting, Orzechowski said that the May 2 meeting had been cited incorrectly, but that was not the crux of The Telegraph’s complaint. See: Telegraph rejects TRSU account of Open Meeting violation.

The video below is a compilation showing the how the boards have been entering into executive session.

At the heart of the May 7 complaint, and most of those in the new complaint, is the two-step process for legally excluding the public from discussions that involve negotiation such as contracts and labor agreements or dispute resolution such as arbitration and litigation and the legal strategy that goes with them. Before making a motion to go into executive session for such topics, board members must first consider whether their discussion will put the board or an individual at a “substantial disadvantage” by being conducted in public.

So, for example if the board was discussing its strategy for a labor contract, it could find that talking about it in open session would give away its negotiating leverage and put it at a disadvantage. The Telegraph has maintained that a board member cannot vote on such a finding without knowing something about what is to be discussed. Board members are routinely unaware of what a closed door session will be about and never vote on the merits of excluding the public.

In the eight meetings cited in the most recent complaint, the board should have considered the situation and voted to make a “specific finding” and did not. Instead of the board making the legally required decision in public, the superintendent or board chair used some form of a phrase from the statute such as “we are going into executive session because it would put the board at a disadvantage.”

The short-cutting of the process included one member saying “with all the appropriate language” as the LMHUUSD board went into executive session last October, and a TRSU board member saying “what Meg said” in response to Powden’s recitation of language from the law as a substitute for making an actual finding.  Curiously, the minutes for all eight of the meetings cited in the complaint state that the board made the required finding when it never did.

A laughing matter?

At times, the recitation of the “disadvantage clause” became a cause for levity with members at a couple of meetings laughing when the wording was broached. And in one instance the suggestion that the clause be printed on a sign that the chair could hold up in front of the local access television camera rather than reading it was met with hearty laughter.

“While I appreciate the humor, board members seem to be under the false impression that reciting a legal clause makes them immune from having to make an informed decision,” said Telegraph publisher Cynthia Prairie. “I would hope that our efforts will pry open the door to much more information not only for the board, but for the public as well.”

Each year, superintendents and the chairs of the SU’s boards are required by state law to attend eight hours of training, which must include the Open Meeting Law. The TRSU boards routinely receive their training from the Vermont School Boards Association and have engaged that organization to conduct a session on Thursday, June 6 at the Ludlow Elementary School.

In a letter to Powden and Orzechowski dated June 4, Prairie questioned the efficacy of VSBA’s training in light of the May 2 violation and others that The Telegraph has witnessed, and suggested the board find an expert on the law. 

This are not the first time The Telegraph has called out TRSU boards on transparency issues.

In December 2017, The Telegraph sent Powden an informal email pointing out similar problems with a GMUSD meeting and asked for a response. The Telegraph did not receive one.

On Jan. 9, 2018 The Telegraph filed a formal complaint. Nine days later at the monthly GMUSD meeting, Powden announced that the violation was unintentional and that they intended to do better.

“The Chester Telegraph is correct; we need to provide a more detailed explanation for the Executive Session, recognizing that “personnel” does not sufficiently meet the requirements of the statute. Additionally, if the purpose of the Executive Session requires the Board or Committee to make a specific finding “that premature public knowledge would clearly place the public body or a person involved at a substantial disadvantage”, the Board will comply with this provision of section 313.  For instance, if the Executive Session is to discuss the contractual consequences and ramifications of a potential RIF we will need to warn the session as “Discussion pertaining to a potential Reduction in Force in support staff or teaching staff.”

In its decision in Trombley v. Bellows Falls Union High School, Dist 27, (1993) the Vermont Supreme Court spoke specifically to the question saying: “It is not unworkable for a public body to make a careful analysis of need before deciding to go into executive session. In fact, in the absence of a case-by-case determination, the legislative policy of openness would be frustrated by the impossibility of describing in categorical terms, without being over-inclusive, the permissible subjects of executive sessions. The exercise of judgment is inevitable.”

The three boards of TRSU have until Friday, June 14, 2019 to respond to the complaint either by acknowledging it and “curing” the violations within 14 days or by denying that any violations have taken place. Vermont law allows the Attorney General or “any person aggrieved by a violation” to sue in Windsor County Superior Court – Civil Division. If the plaintiff “substantially prevails,” the court can assess legal and court fees to the public body to pay.

In addition, anyone who “knowingly and intentionally” violates the Open Meeting Law “shall be guilty of a misdemeanor” and fined not more than $500.