Admitting violation, commission offers ‘cure’

Saint Albans Messenger; August 15, 2016

Email deliberations broke open meeting law

By TOM BENTON

Messenger Staff Writer

SWANTON — The planning commission has agreed on provisions to “cure” its violations of Open Meeting Law. The town’s attorney, Ed Adrian, sent the specifics of the commission’s compliance to Swanton Wind attorney Anthony Iarrapino, whose clients, Travis and Ashley Belisle, filed the initial complaint against the planning commission in July.

In Adrian’s letter, the town acknowledges that the private email deliberations of three commissioners regarding the town’s in-progress municipal energy plan violated the law. The law requires that municipal business be conducted at duly warned public meetings, and that no majority of a municipal body — in this case, three of the commission’s five members — deliberate over public business in private.

“The Town of Swanton Planning Commission will not conduct such email deliberations or discussions moving forward,” Adrian wrote.

Adrian’s letter notes that all new and incoming members of the town’s municipal bodies will receive a training packet on the Open Meeting Law. Those individuals will have to sign a statement acknowledging having read and understood the provided information.

There is only one proposed provision to which the town did not agree — a request to have Commissioner Sara Luneau-Swan recused from future energy discussions. According to Adrian’s letter, the town has taken the position that the decision is Luneau-Swan’s alone to make, but more importantly that “the Planning Commission is not acting as a quasi-judicial body in this matter. It is acting in a legislative capacity.”

“As you are well aware, there is no proscription against a legislator holding a strongly held belief on a particular issue, or, for that matter, on every issue,” Adrian wrote. “Such is the nature of the legislative process. Put another way, what one person may see as ‘bias,’ another may see as a firmly held belief. We believe even asking Commissioner Swan to recuse herself would create a dangerous precedent wherein anyone would be entitled to ask a public board member to recuse him or herself just because she or he articulated a strongly held belief, regardless of what that belief was based on. Not only would this have a chilling effect on the legislative process, but we believe such precedent might have free speech implications under the United States Constitution.”

An official response from Iarrapino is forthcoming.

Adrian’s letter also thanks Swanton Wind for “acknowledging the remedial steps the Town has taken to date.” Iarrapino previously thanked the town for swiftly complying with the law’s violation procedures.

Transforming the planning commission’s Aug. 17 meeting into a “work session,” during which proponents of industrial wind may present evidence supporting their stance, and in which pre-existing draft language will be discussed, was one of those remedial steps.

The pre-existing draft language to be discussed at the commission’s next meeting will not include any of the proposed revisions submitted since May. At a meeting last week, planning commission chair Jim Hubbard said those revisions have been scrapped, and that the commission is “starting from square one.”

Noted anti-wind opponents Rep. Marianna Gamache, R-Swanton, and Annette Smith, the executive director of Vermonters for a Clean Environment, helped craft revised language for the town plan.

Iarrapino and the Belisles objected to the proposed revisions, which they said had an anti-wind bias, and to Gamache and Smith’s lack of professional, scientific experience with industrial wind despite a number of scientific statements put forth by the women in the proposed revisions. Iarrapino also noted that Smith is not a resident of Swanton, but of Danby.

It was those objections that led Iarrapino to file an open records request, seeking communications between the planning commission and outside sources of input, which uncovered email deliberations conducted by Luneau-Swan and Commissioners Ed Daniel and Andy Larocque.

Those emails showed Luneau-Swan conferring with a number of non-Swanton residents regarding municipal energy plans that had successfully blocked industrial wind development.

In one email, Luneau-Swan noted that the Belisles planned to attend a subsequent planning commission meeting, “and we don’t want to have to make changes or concede to any of their requests.”

In another email, Lunea-Swan wrote that the planning commission “owes it to our citizens to make sure their voices were heard and that we will do everything we are able to to stop renewable energy projects where they shouldn’t be located.”

“The Planning Commission has asked me to express its apologies to your clients in respect to this matter,” Adrian’s letter says. “Living in a time of rapidly changing technology, it sometimes becomes a challenge to keep up with how legal nomenclature changes with new technology. In this case the term ‘meeting’ traditionally described a physical gathering of a body, but now extends to electronic mail communications. The Commission feels that your complaint bringing this violation to their attention has helped to clarify this issue and the Commission will endeavor to insure that this does not occur again moving forward.

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