Vermont Legislature SmartTranscripts:

[Representative Sandra "Sandy" Pinsonault]: You should not read your references. Alright.

[Chair Matthew Birong]: Folks, BRY. Welcome to the house government operations and military affairs. It is Wednesday morning, just after 09:30 on January 14. We have legislative council with us. And what we are going to do with this block of time is run through existing statute, in regards to public records.

[Tucker Anderson, Legislative Counsel]: Well, good morning, committee. Tucker Anderson, legislative counsel. Very excited to be here to partially reprise my role from last year as for a wartime conciliator, we find open records and open government generally. Last session, we covered the open meeting law in preparation for work you did, on an open meeting law update. And this session, happy to dive into Vermont's Public Records Act. And I won't be taking you back to the tenth century Icelandic parliaments this morning.

[Representative Lisa Hango (Vice Chair)]: Oh, no. Very

[Tucker Anderson, Legislative Counsel]: disappointing. Knights of Buckingham? But we will we won't go back to the Knights of Buckingham either. Correct, chair. That is where we started the session with Bennington one, talking about the legislative power to judge the qualifications of the members of the assembly. We will be starting sixty years ago, 1966 with the adoption of the Freedom of Information Act. And I don't have a story to tell you, about that. Instead, I will just pose a question. Why in 1966 was the Freedom of Information Act adopted? '66. Civil rights era. I got the answer from the gallery that I was looking for. It is not correct at all, but it is the answer that I was looking for because every time that I've done a Public Records Act overview with the committee, someone at some point said that it is because of Richard Nixon.

[Representative Kate Nugent]: Not yet.

[Tucker Anderson, Legislative Counsel]: Now the president in 1966 was Linda Johnson. Is correct. Freedom of Information Act was not proposed or adopted in response to any particular member of the executive. It was proposed and adopted in response to issues with access to government information from the Cold War period. A number of different presidents, a number of different administrations, the rapid growth of the administrative state. Vermont, for its part, adopted the Public Records Act in 1973. And the committees of the general assembly at the time did have some discussion about Richard Nixon. But of course, we were also seeing the rapid expansion of the administrative state legislatures and delegating legislative authority to more and more of the newly created agencies in the executive branch. And there was concern over access to the records that are underlying the decisions of those agencies. And much like the Freedom of Information Act, there was concern that the Administrative Procedures Act wasn't adequate for public knowledge of the conduct of government. Now all of that is covered by the Department of Justice very thoroughly in a three volume set, the guidebook to the Freedom of Information Act and Privacy Acts, if you are ever interested in annotating it as I have. Wonderfully rich material, I'm sure will keep you awake at night with how exciting it is. You won't be able to put it down. What I will do this morning as the overview for the committee, because this is what the committee has requested, is walk you through the current statutes that impose the Public Records Act. I will pause occasionally to go to an overview document where I've put in some helpful holdings from the Vermont Supreme Court that, relates to how the Public Records Act is implemented, but also how it is reviewed when there are potential challenges from the public to decisions of agencies under the Public Records Act. Some of the discussion that you had last week about the PRA, I want to make sure that you understand the current state of the law in relation to those issues as you move forward this session potentially with acting on some of the issues that have been flagged for you. So I'm going to share my screen. Don't be intimidated by some of the material you see initially. So this is just so that those watching at home can follow along. If you go to the legislature's web page and you go under Vermont laws, start in title one, go into chapter five, down into subchapter three, that's where the Public Records Act is codified. The subchapter, for some confusing reason, was titled Access to Public Records instead of the Public Records Act, but the short title is indeed the PRA. We'll start in section three fifteen. Hopefully, the screen is changing behind me. Within section three fifteen, the general assembly has expressed policy related to the Public Records Act, and it is the policy to provide for free and open examination of records consistent with chapter one, article six of the Vermont constitution. It goes on from there, but I really wanted to flag that because there have actually been a number of decisions just based on this particular expression of the policy. Chapter one, Article six of the Vermont constitution states that all power being originally inherent in and consequently derived from the people, all officers of government, whether legislative executive, are their trustees and servants, and at all times, in a legal way, are accountable to them. Them, pronoun error, being the people. However, article six is not a self executing provision. It doesn't actually secure any rights for the people. The supreme court has said that to say that article six is not self executing is to say that the legislature may select the means and details of executing the broad principles that are articulated in that section. The realization of article six's philosophical vision is subject to those reasonable and practical contours that the legislature should set forth. So I've said this so many times in so many different contexts, and I'll repeat it later when we talk about Dillon's role, but you have the power. In many challenges to public records decision decisions made by public agencies, appellants have brought forward article six of the constitution and said there is a guaranteed right to be able to examine government. Right? Because these are our trustees, and they're accountable to us. And the court consistently held that this is more of a philosophical expression of open government and doesn't actually secure any legal rights for the public, that all legal rights are faced within the contours of the Public Records Act. So the words that we're about to cover really matter because this is defining access to government through state law. Further on in this section, there is a discussion of privacy interests. Section three fifteen contains what the Vermont Supreme Court has referred to as a privacy proviso. This will be a theme that comes up as we go through the Public Records Act. But all public agencies in the state are put in a position of balancing the public's interest in access to records with the privacy interests of individuals that are subject to the actual record that is produced or required, Constantly balancing what are the privacy interests of people, and their identities, details about their personal lives that are contained within the records, and then the broader public interest in access to, the inner workings of government. Section three sixteen. This is where it really starts to get spicy, because we start dealing with inspection and copying of records. It's the opening salvo of the Public Records Act and the first place within the subchapter where the general assembly starts to articulate what the rights are that are secured through the public record Public Records Act for access to records. It starts by stating that a person may inspect or copy any public record, let's see, between the hours of 09:00 and 12:00 on the forenoon and between 01:00 and 04:00 in the afternoon. Further, that, for any of these agencies, a person may inspect a record during customary business hours. Okay. That was inspection in subsection A. Gonna highlight each place that it to hit this section of law and discusses inspection versus copying because as we will visit later in a Supreme Court decision, it really matters. Subsection b, this discusses copying equipment and specifically the use of copying equipment that is maintained by the public agency. The agency is authorized under subsection B to charge and collect from the requester the actual cost of providing the copy of the record that is produced using that equipment. The agency may also charge and collect from the person making the request costs associated with mailing and transmitting still talking about physical records here the record by facsimile or other electronic means. Nothing in this section exempts a person from paying fees that are otherwise established by law. And the easiest example that I can give you is the general assembly has set out specific fees that town clerks can collect for particular records, particularly land records and other officially filed materials with the town clerk. So if an individual requests a public record that falls under one of those articulated fees, they pay the fee that is expressly stated elsewhere in statute, not the charges for copies established under the Public Records Act. Another example would be vital records. You have to pay the vital records fees. You can't request those vital records under the Public Records Act and escape statutory fees that way. I have a question.

[Representative Chea Waters Evans (Ranking Member)]: So if we're saying that if it clarifies somewhere else that there's a specific fee for a certain kind of record that supersedes where we're looking for this?

[Tucker Anderson, Legislative Counsel]: Yes.

[Representative Chea Waters Evans (Ranking Member)]: Otherwise, this applies to everything else. Right. Okay, thank you.

[Tucker Anderson, Legislative Counsel]: Provided when we say everything else, everything else that is requested under the Public Records Act. You

[Representative Chea Waters Evans (Ranking Member)]: know where this section allows creating? 1973. Thank you.

[Representative Sandra "Sandy" Pinsonault]: You were out of the room when you said that earlier.

[Representative Chea Waters Evans (Ranking Member)]: Oh, sorry. That's right. I'm working on a craft project and I had to get my

[Tucker Anderson, Legislative Counsel]: just helps anchor

[Representative Sandra "Sandy" Pinsonault]: the time.

[Representative Chea Waters Evans (Ranking Member)]: My supplies. Just a second.

[Tucker Anderson, Legislative Counsel]: I always appreciate how crafty you are. Subsection c. Unless it is otherwise provided by law, an agency may also charge and co effect the cost of staff time associated with complying with a request for a copy or a copy of a public record. So here are the instances. The time directly involved exceeds thirty minutes. It's time complying with the request. It is an important clause and one that has not been deeply examined by the courts yet. The agency agrees to create a public record. So if the record does not exist yet and the agency says, we will provide you with this record, but we have to make it first, and you're going to pay for the time that it takes to actually create this record. Finally, the agency agrees to provide the record in a nonstandard format, and the time directly involved in complying exceeds thirty minutes. I can give you some examples of the last two. So, agency receives a request for compiled data that exists in a number of different existing public records. So let's say this is the Department of Labor as an agency. And the request is for comparative data between three different workforce development programs and is incorporative of potentially thousands of individual records. And the requester is demanding a spreadsheet that contains all of that information. There are some options there. First, we're going to undergo all the procedures of the Public Records Act. We're going to review 1,000 records. It's going to take x amount of time. Perhaps it'll be released on a rolling basis, and you will do the compilation on your own. Or we will compile the data for you. We're agreeable to that. However, you will pay for the time, staff time, it takes to create that spreadsheet for you. And the third example here, when the agency agrees to provide the public record in nonstandard format, this is going to most commonly be in areas where we have digital records. And the conversion of those digital records into some other format besides the specific format that the record is maintained in. And later on in this section, there are definitions for standard format and non standard format. But the easiest example that I can give you is there are all of these records that exist in some sort of locked, secure, fixed format like a PDF, and the request is that they be converted into some other non standard format that is easier to feed through, for example, an artificial intelligence system that can then analyze that text. The public agency could say, that's not the standard format for the elections that we keep, but we will convert it for you. And for all of the time after the first thirty minutes, which is always free, nineteen nineties pizza rules, For all the time after that, we will charge according to the uniform schedule of fees for public records. K. There's a provision at the end of this that an agency may require that request that subject that are subject to staff time charges be made in writing and that all charges be paid in whole or in part prior to the delivery of the copies. And I wanted to stress this because you heard some testimony that this is something that some municipal public agencies are looking for. It already exists in the law. There can be a demand that payment, when triggered by the subsection, be made upfront. And you can provide an estimate of the time it's going to take. And records officers, particularly when they handle a high volume of requests, can give some pretty accurate estimates upfront. You understand by the time you've been in the game for a number of years that when there are 5,000 emails that need to be reviewed, that that is going to take a lot of staff time. And you can estimate that perhaps the first forty hours need to be prepaid before you're going to commit the staff time to that. All right, in subsection Council, I have a hand.

[Representative Chea Waters Evans (Ranking Member)]: When you say staff time, does that specifically mean town staff, or could it mean, like, a town attorney who's retained by

[Representative Larry Satcowitz]: So it could be both.

[Tucker Anderson, Legislative Counsel]: The town. And we're about to get into the uniform schedule of charges that is adopted by the Secretary of State. But it could be any staff of the public agency. Okay. There's interesting situations that come up, including in the Tensing case, which we'll talk about a little bit later, where the parties can come to agreements about how the search will take place. And that could be through a third party who is hired to handle a high volume Public Records Act request. So it could be, we actually don't have the staff to facilitate this request because it is so voluminous, and it is completely outside of the confines of the Public Records Act. It's impossible to complete within the maximum timeline timeline of ten business days. How about this proposal? We move forward with the search and response, but we do so through a third party that we will hire that will conduct this just for you. And the costs associated with doing that will be paid by you unless you want to go through the statutory procedures, which will be ten business days at a time on a rolling basis, will take small bites for the next five years. This is all practical stuff that is not embedded in the text of the Public Reference Act, but it has been done. Subsection b, the Secretary of State shall establish the actual cost of providing a copy of a public record that may be charged by state agencies. So this is for your state agencies. The Secretary shall also establish the amount that may be charged for staff time when the charge is authorized under this section. And to determine actual cost as that term is used here, the secretary shall consider the following only, the cost of paper or electronic media onto which the record is copied, a prorated amount for maintenance and replacement of the machine or equipment used to copy the record, and any utility charges directly associated with copying the record. Also, by rule, the secretary shall adopt a uniform schedule of public record charges for state agencies. So you have two schedules that come up here. The first is for the actual physical material that is used or the equipment that is used and how that is prorated, for example, per page, when a copy is requested. And then you have the charges for staff time. And I did not prepare the uniform schedule for you, but I will make sure that you all get a copy because it is instructive as to what the estimated value of staff time is, and it is broken down by the specialty of the staff. The most that can be charged is for IT staff time for technical work that they are doing in response to a Public Records Act request. And even that hourly rate broken down is lower than what the, current pay schedules are for state agencies. Below the actual cost of execution of said task. That is right. Subsection e, the same authority to establish uniform schedules of charges is granted to the legislative bodies of, political subdivisions. So counties, municipal governments, municipal corporations broadly. If none is adopted by the municipality, they rely on the Secretary of State's uniform schedule. Subsection F. Receipts have to be provided for all of the monies collected, and then there are specific procedures for how the money is collected and deposited depending on the charges. If you're curious about that, we can do a deep dive and potentially even uncover just how much of this is going into the general fund over time. Subsection G, a public agency that has the necessary equipment to copy public records shall utilize its equipment to produce copies. However, if the agency does not have that equipment, nothing in the sections shall be construed to require the agency to provide for or arrange for copying services, to use or permit the use of copying equipment other than its own, or to permit operation of its copying equipment by other than its own personnel. Wanted to flag this because it is something that came up in the conversation about the distinction between request to inspect and request to copy. One of the questions that came up is whether people could use their cell phones to take pictures of the records. This subsection deals only with requests for copies, and it gives the public agency the authority to say that only their staff can use the copying machines that are owned by the public agency, that if the public agency does, in fact, have copying machines, that they have to use them. However, if they don't, they're not compelled to arrange for the use of copying equipment. Within the context of a request to inspect, none of the duties actually apply, right, because the text of this subsection is specific to requests for copies and the production of copies. So there is no obligation on behalf of a public agency, the state, its political subdivisions to facilitate the use of state equipment to produce copies when the request is specifically to inspect. However, there's also no authority for the public agency to prohibit the use of personal copying equipment. So an area of the law that is currently silent, And I can't provide any support on what the right answer is. I can tell you that, in the past, some public agencies have used the following practice. The moment that an individual decides that they are going to produce copies of the public records, it immediately shifts the request, at least some of the practices of these public agencies, from a request to inspect to a request to copy. Cannot tell you with any legal certainty whether that is the appropriate thing to do under the plain language of the Public Records Act, but it is a practice that some public agencies put in place.

[Chair Matthew Birong]: Yes, Representative Lamoille.

[Representative Lisa Hango (Vice Chair)]: Thank you. Just a quick clarification. So if it shifts the focus to inspection, the public agency really can't deny that, correct? Even if the person is sitting there taking pictures with their cell phone.

[Tucker Anderson, Legislative Counsel]: That is the debate that came up seven years ago immediately after the Doyle versus City of Burlington decision came down, which we'll touch upon in just a few moments. Some institutions of the state have denied requesters the ability to use their cameras to take pictures of the records. Obviously, the scope of what we call a record is quite broad. And I know that last time, there was discussion about the protection of sensitive records from photographs that is

[Representative Lisa Hango (Vice Chair)]: totally appropriate to maintain sensitive records in that manner. But there's nothing in here that parses out whether a public agency can deny the use of personal equipment to produce copies. Just to follow-up really briefly, so if an individual from the state agency or sorry, public agency has to be present during that time, can the agency still charge for that staff time?

[Tucker Anderson, Legislative Counsel]: It's an interesting question. And in the subsections that we're about to go through, perhaps there's some room for that. And I'll describe the adoption of reasonable rules relating to the destruction of the public agency's work or to the protection of the records themselves. Subsection h, promise to get into standard and nonstandard formats. And here we are. I'm following through on my promises. For paper copies, a photocopy of a paper public record or hard copy printout, of a public record maintained in electronic form is the standard format. For electronic copies, the format in which the record is maintained. So however it is maintained on the service of the public agency is the standard format. Any format other than the formats described in this subsection is a nonstandard format. Remember that this triggers the ability to charge for the staff time used, if you agree to produce a record in the non standard format. Okay. If maintained in electronic format, nonexempt public records shall be available for copying in either standard or nonstandard format, standard electronic format or standard paper format. If requested by the party requesting the records, an agency may provide copies of public records in a nonstandard format, create a public record, or convert public paper public records to electronic format. So that is based on the agreement of the public agency. Subsection j and representative Hango, this is gonna touch upon what you just brought up with your line of questions. Public agency may make reasonable rules to prevent disruption of operations, to preserve the security of public records or documents, and to protect them from damage. So provided that the rules are reasonable and cover these subjects and perhaps relate to having staff available to monitor the inspection, It is possible, but not express that under those terms, staff time spent complying with the request could be charged, but it's going to be copies. How do you get to the copies? We don't have to go through subsection k, but it's a carve out related to very specific area of law, which is the disposal of hazardous waste. Now Interesting home for that. Well, it's about access to records related to disposal. Okay. Okay.

[Representative Chea Waters Evans (Ranking Member)]: Not the waste itself.

[Tucker Anderson, Legislative Counsel]: Well, not the waste itself.

[Chair Matthew Birong]: Thank you. Our friends ANR eyebrows go up.

[Tucker Anderson, Legislative Counsel]: We're almost done with this section. But I went through and I highlighted for you each area where we have language specific to inspection and language specific to copy. In Doyle v. City of Burlington, the Supreme Court concluded the following. State agencies may not charge for staff time spent responding to requests to inspect public records pursuant to the Public Records Act. The court thoroughly examined subsection three sixteen c for purposes of its holding. By its plain language, this provision authorizes charges only for requests for copies of public records, not for requests for inspection. If we interpret section three sixteen c as also applying to requests to inspect, it would render a copy of mere surplusage. Heard of the session, perhaps? Yeah. But it's on. Don't try.

[Representative Lisa Hango (Vice Chair)]: A bit of a word. It's something you spell it.

[Tucker Anderson, Legislative Counsel]: This is the last session's word. It's perfect. Yes. Yes. All of the words that go into your acts are granted meaning by the courts. In plain reading, they are not going to just ignore or dispose of a clause, such as a copy of, and apply it broadly to all of the mechanisms within section when you are specific, precise, and concise in your language. That is the assumption that the court is going to make. So they go on. The court stated, the plain language throughout this section indicates the legislature's intent to distinguish request to inspect from request to copy. Section three sixteen begins by providing that any person may inspect or copy any public record. This disjunctive war between inspection and copy creates a distinction between request to inspect and request to copy, and that continues throughout the section. The statute specifies the times when a person may inspect public records, authorizes charges associated with request copies, and further addresses charges, equipment, monies, and formats for copies in subsections d through I. I can highlight for you every single instance where copy is used in this section, or you can go back to some of the bills that were introduced in the session immediately after this decision was issued, where there was some cleanup proposed to clearly articulate the charges applied to both inspection and copy. But if you go through the you go through the section, everywhere where charges are authorized, there is a clause that clearly indicates that the charges on the Public Records Act apply to requests for copies. If it is the policy moving forward and the intent of the general assembly to shift that, then section three sixteen would need to be amended to clarify the charges for staff time, for example, apply to both request to inspect and request to come.

[Chair Matthew Birong]: I I had Waters Evans, then Hango.

[Representative Chea Waters Evans (Ranking Member)]: Does copy mean, like, an actual like, a photocopy or, like, in the old days, like, a ditto? Or or or can that word be expanded to mean, like, I'm taking a picture with my iPhone?

[Tucker Anderson, Legislative Counsel]: Could be both. Okay. And the reason is that throughout this section, were updates. And I wish that I could remember off the top of my head the year that there were updates to the Public Records Act to start to incorporate electronic copying and electronic records generally. There was actually a legislative study committee that issued a report on the Public Records Act and, modernizing it to start to incorporate electronic records. The legislative council that was assigned to that at the time was Michael O'Brady. And if you read Doyle v. City of Burlington, there is a footnote that cites the report from the legislative council.

[Representative Chea Waters Evans (Ranking Member)]: Go ahead. I could ask questions about

[Representative Lisa Hango (Vice Chair)]: this today. We

[Chair Matthew Birong]: have days in front of us. Just

[Representative Lisa Hango (Vice Chair)]: building on that, so that request for copies is now inclusive of sending an electronic copy to someone outside of the public agency who has requested a copy.

[Tucker Anderson, Legislative Counsel]: That is a copy, an electronic form of a public record. There is debate in this area about what the time complying with the request actually is. On one side of the debate, you have, let's just refer to it as strict construction, which is it is the time that you spend producing the copy. If you were at the copier, it would be the time that you're feeding paper into the copier. Not all of the background work that goes into preparing those records for the requester, just the time you are physically making the copies. The more on this side, well, less strict construction is that it is incorporated of all of the staff time that goes into making that record for the requester. And that could be the time spent reviewing redacting. It could be the time spent organizing the records in some sort of cohesive or comprehensive way. It's far more clear when there's agreement between the public to create a public record as an example that it is incorporative of all of the background work that goes into it, less clear when we're talking just about talking.

[Representative Lisa Hango (Vice Chair)]: So I still have my original question. So that's where that thirty minutes in statute comes in, is anything above and beyond that in terms of staff time. However, the Doyle versus City of Burlington case, that was only for staff charges, fees for staff time, correct? Yes. Okay. So in that case, pulling the records for inspection would not be a chargeable fee for staff time. That is the debate between the two sides. I think we need to clarify this.

[Representative Sandra "Sandy" Pinsonault]: Could you repeat your question?

[Representative Lisa Hango (Vice Chair)]: My question was in the Doyle versus City of Burlington case, it's strictly about staff time. And it's not clear that pulling the records for inspection would be a chargeable fee. So preparing those records for someone, the requester, to come in to inspect that thirty minute rule does not apply because you aren't really allowed under this court decision to charge for that staff time.

[Representative Larry Satcowitz]: Am I correct?

[Tucker Anderson, Legislative Counsel]: And if we were to talk about phases of public records response, we break it out into search of the records, the review of the records, and then the production of the records, which includes the issuance of a formal response and could include providing the copies of records. Search can definitely take a long time, depending on how the request was framed, what the scope of the request is, and what the volume of records produced through the search terms is. The example that I use in public records attic training is you write to the Department of Fish and Wildlife, and you request any record related to the word fish. That's going to be a lot of records. Right? And if the requester refuses to narrow the scope of that request, wow, that's a lot of time spent searching. Even if you could determine through negotiation with the requester what the specific area of interest is, if it is incorporative of records related to phish, you're going to

[Representative Robert Hooper]: get

[Tucker Anderson, Legislative Counsel]: so many obfuscated records in a digital search Because every single email ever sent within the department is going to contain that word. Right? So the time spent searching immediately triggers hours and hours and hours of review to find what is actually responsive to the request. So

[Chair Matthew Birong]: How often is a search like that, like, really focused on one thing or just, like, my apologies now, a broader phishing expedition?

[Tucker Anderson, Legislative Counsel]: That is why I use these examples. How frequently? You should likely take some testimony from other public agencies. I'm the records officer for the Office of Legislative Counsel and the General Assembly, although I am gleefully stepping away from that role. And I know that the soon to be records officer Maggie Farrin, I believe, is watching. So good luck, Maggie. Hi, Maggie. Nice to meet you. A fair amount of the requests that come in are overbroad. And this is a broader institutional conversation for state government to have and for you all to consider. And it's a policy issue perhaps, but my observation is that it stems from a lack of trust. If you could properly negotiate with a requester and find out what they're looking for, you could narrow the scope of the request to the point where you could have an efficient search process and produce the records in a meaningful manner. But if the requester doesn't trust the public agency when they say this is too broad, they're going to submit those fishing expedition style requests because they want to compel this massive search that they can then pour through individually. The issue that comes up with those requests, and we will get to this momentarily in Section three seventeen, is that every public agency has affirmative legal statutory duties related to the records that they hold, and they must be reviewed before they are submitted to the public. And there are potentially dire consequences with releasing records without reviewing them and performing a sort of due diligence review.

[Chair Matthew Birong]: Okay, so representative Hango and then a Hooper who represents it.

[Representative Lisa Hango (Vice Chair)]: I've heard you say three stages. I actually think I've identified four that we could really hone in on. Search review by the staff, inspection by the requester, and then presentation to the requester in the form of copies, however format they want it. And it seems like there's some ambiguity around staff time in just about all of those four areas. Thank you. Representative Hooper of Burlington.

[Representative Robert Hooper]: So if you're inspecting, staff has put through hours and accumulated inspection, and you decide you want copies of five documents, across the line to income. That's time it's an argument.

[Tucker Anderson, Legislative Counsel]: If the shift is genuinely made and the public agency would probably ask for that shift to be reduced to writing so that there is a record of it, then the staff time spent complying could be chargeable. Yes. Now going back, there is legal debate about just what the staff time spent complying with the request is. Is it that full two hours, or is it just the forty five minutes that was spent organizing, preparing the records, or making copies of them to give to the individual? Can tell you that there's this is just narrative from my experience. There was an instance where there were months of staff time associated with a fairly broad request. It was a request to inspect, happily facilitated that. And then at the end, there was a request for copies of all the records that came up in the inspection and produced an estimate of what the charges for the staff time would be. And the response was, well, the staff time is actually just you now taking digital copies of everything that you produce for inspection and sending it to me, which is less than thirty minutes and is free.

[Unidentified Committee Member]: So my question on this too is just sort of I've heard anecdotally,

[Tucker Anderson, Legislative Counsel]: when corresponding with the records request or the tone and tenor can become aggressive and abusive. Is there anything that plays into that as per as per what how much perceived abusive interaction does a or government have to take? Is there a threshold or a boundary in law where it could separate the conversation because of that? Within the four corners of the public records act, no. Okay. But as, you know from your discussions around the open meeting law and disruptive behavior, during meetings last session, there are other areas of law that can come into play, primarily criminal law. And if it crosses the boundary, for example, into criminal threatening, then, that's a different issue. But within the procedures of the Public Records Act, there's no escape hatch built into the procedures for public agencies and their staff that are subject to abuse threats, things like that, through the public records.

[Chair Matthew Birong]: Representative Nugent.

[Representative Kate Nugent]: I'm just wondering if there's any discussion or exploration around the amount of complying with these requests that's, I would assume, part of the job of the public agency? I'm assuming that's covered, that's where the ambiguity is. It's about how much time.

[Tucker Anderson, Legislative Counsel]: How much time has to be committed? There's no stress built into the Public Records Act. There are definitely ways that public agencies can get to the point where they might not have an affirmative duty to respond to a series of requests that are received, but that's a tenuous stance for a public agency to take because there are secured appeal rights within the Public Records Act, there's always the threat of litigation around a decision that's made by a public agency. An example that I could give you is a request for copies comes in, you get all the way to the endpoint, the copies are produced, but there has been no payment for the copies. And you have an outstanding bill for a request. And now there is a series of requests from the same requester that have followed. Some public agencies have taken the stance that you actually will no longer proceed until, one, that bill is paid because staff time was committed and we're getting to the point where this is now disruptive. And we're going to ask you to prepay for this series of requests before we'll agree to proceed. Could be subject to litigation at some point in the future, definitely. Especially if there's an attorney involved, you'll find that public agencies will be risk averse. Representative Pinsonault?

[Representative Sandra "Sandy" Pinsonault]: As a former town clerk, that's exactly what happened. It's $400 in copies and stuff. So, made policy that we would email them back as to what specifically they were requesting. So that we didn't do this broad search. And then gave them an estimate. This is what it's going to cost you. Send your money and we'll be glad to do it for you. I was under the assumption that we could charge $2 an hour for staff time with a maximum of $30 per day.

[Tucker Anderson, Legislative Counsel]: No. So it is a little bit more than that if you meted out per hour. The uniform schedule of charges is per minute, interestingly enough. I think I recall that my time spent on records is like zero two cents a minute or something like that, 27¢ a minute maybe.

[Representative Sandra "Sandy" Pinsonault]: But I think there's somewhere in statute that says the minimum you can charge, it might be in

[Tucker Anderson, Legislative Counsel]: 20 It be a town policy in the town that you were working in. I don't know that there

[Representative Sandra "Sandy" Pinsonault]: No, it was through best practices of the town clerk's association.

[Tucker Anderson, Legislative Counsel]: Could be

[Representative Sandra "Sandy" Pinsonault]: Could be their own little thing.

[Tucker Anderson, Legislative Counsel]: And the previous statute did cover that, political subdivisions are authorized to adopt their own uniform schedules. And there are even charter provisions related to this. I believe that the town of Springfield is an example you could look at. They're fairly certain they still have their own language around, copies of public records from the town built into their charter.

[Representative Robert Hooper]: Representative Birong. Still a little worried on taking pictures yourself, or if you request to review, you review, you decide you want copies or something, so far you have no

[Tucker Anderson, Legislative Counsel]: obligation to pay if you take a picture of yourself, no staff not involved, or home. Fantastic question that I do not have a pinpoint legal answer on because it is an area of ambiguity.

[Representative Sandra "Sandy" Pinsonault]: The town of Dorset, you pee for the copy.

[Tucker Anderson, Legislative Counsel]: Right. The Public Records Act gets more and more spicy as we go on, and I know that we're already starting to run low on time. Does the committee want to immediately jump into section three seventeen? To preview, we've got definitions. We've got exemptions. Okay? Oh, yeah. And, we'll have some duties of your office of legislative council. How exciting. Alright. So, for some reason, we are three sections into this subchapter, and now we have definitions built into sections that are applicable to the entire subchapter.

[Representative Lisa Hango (Vice Chair)]: We need to

[Tucker Anderson, Legislative Counsel]: So something that could be reviewed in the future is that perhaps these could be in a definition section. It's

[Chair Matthew Birong]: your eyebrows

[Tucker Anderson, Legislative Counsel]: are a surplus, though, or

[Representative Lisa Hango (Vice Chair)]: Would counsel make a note of that for if we are

[Tucker Anderson, Legislative Counsel]: So compelled.

[Representative Lisa Hango (Vice Chair)]: Preparing a committee bill?

[Tucker Anderson, Legislative Counsel]: Which of these? No. Business day, a day that a public agency is open to provide services. This is an important one because you'll often get pushback from requesters if you, for example, in the next section, we'll get into the ten business day timeline under unusual circumstances. And you'll get pushback when you provide the date that the records will be provided by. It they'll say, wait. Isn't Monday a business day? And the answer is no. It's Martin Luther King Day or President's Day or whatever. Or if you're a member of the General Assembly, Monday is not a business day at all. Public agency means any agency, board, department, commission, committee, branch, instrumentality, authority of the state or any agency, board, department, branch, instrumentality, commission, or authority of any political subdivision of the state. Take that to mean any identifiable agency of the state or its political subdivisions and including instrumentalities. We gave a presentation three years ago called Total Instrumentality, and it was about shredding under the Public Records Act. But it was about two decisions from the Supreme Court of Vermont analyzing how far into non governmental organizations the Public Records Act extends. We will get into it, but there are instrumentalities of the state that you might not traditionally view as public agencies captured by the Public Records Act because of these specific governmental functions that they perform and the statutory duties that are applied to them. The one affirmative decision that we have from the Supreme Court of Vermont applying an instrumentality to one of these, let's call it a corporation outside of state government, in relation to the provision of medical services in correction facilities. A right secured by the constitution, a duty applied to the Department of Corrections through statute, something that is seen as a traditional governmental function, the provision of health care to incarcerated persons. All of those factors were taken into consideration, and the determination was made that the corporation that provided those medical services was an instrumentality of the state subject to the Public Records Act. So we talk about what a public agency is. There is this exhaustive list here. Each one of these terms means something. It's easy to say that if it is a governmental agency, we have this exhaustive list, but it also extends outside of what may be traditionally viewed as government. Important to note. Public record, any written or recorded information regardless of its physical form or characteristics produced or acquired in the course of the agency's business. There's some language here related to the individual salaries of officials and employees of public agencies. We don't need to get into that just yet. Pause. Any written or recorded information that is produced or acquired by the public agency. First criteria, in the course of the agency's business, qualifies as a public record here. We have recent guidance, 2021, from the Vermont Supreme Court. This doesn't encompass every single piece of recorded information that goes to and from, for example, an employee or official of a public agency. It's only those records that have a nexus with the business of the public agency. Are there any questions about that? It's an exciting new world in public records act representation.

[Representative Chea Waters Evans (Ranking Member)]: So is that intended to, or would that exclude if I just emailed Brett Boyden and said I liked her jacket? That wouldn't be part of the business.

[Tucker Anderson, Legislative Counsel]: The example I always use is, hey, do you wanna grab lunch? Okay. Yeah. Easy one. The case that was the facts of the case that were examined for the month by the Vermont Supreme Court were more sophisticated than that. It was a, professor who was doing research unaffiliated with the University of Vermont, but that related to the work that that professor did for the University of Vermont. And the court distinguished it because it had no nexus to the business of the public agency. It was this individual's own research done outside their role. But it was an interesting one. In subsection C, there is the initial enumerated list of Public Records Act exemptions. There are 43. I promised the committee that I may not go through all of them exhaustively, but that I would bring up a chart afterwards and just show you where all of the other Public Records Act exemptions are, at least the ones that your hardworking and studious legislative counsel has been able to put together every year for the duration of his career. Important things to flag about the exemptions is that they are incorporative of anything that is confidential by law. It is, the first exemption here. That means that not only do you have the enumerated exemptions, anything that is deemed confidential or that is expressly exempted from the Public Records Act in all of the Vermont statutes annotated, but it also brings in material that is confidential by federal law and, later on, common law. So you have in that first subdivision this broad exemption dragging in anything that is deemed confidential by law. And that may extend to certain forms of privileges as well, although that is up for some debate. An important one for licensed professionals out there that are subject to adopted standards of ethics or conduct, That is exempted here. The classic one under the subdivision C3 that is cited quite frequently is, of course, the attorney client for the change and the duties that are applied to the alternatives to keep the client information confidential. Rules one point six and one point nine of the rules of professional conduct. A really interesting one that has come up recently is this subdivision four, records that if made public, would cause the custodian to violate any statutory or common law privilege other than the common law deliberative process privilege as it applies to the General Assembly and the executive branch agencies in the state of Vermont. This is one common law privilege. The deliberate process privilege relates to the creation of iterative records in the preparation of some sort of final record. Would usually be a privilege that is asserted so that the kind of inner workings of the public agency's mind as it's creating some sort of formal or official document is not invaded during the creative process. Under the Freedom of Information Act, the deliberative process privilege is in the actual text of the Freedom of Information Act. And there are some recent US Supreme Court decisions that protect the records made in the deliberative process from access by requester. Important to note here that there are other privileges held by executive branch officers and, of course, by individual legislators. And the Public Records Act does not have the authority to supersede constitutional privileges that are afforded. And the one that I always bring up is the constitutional and common law legislative privilege, article 20 of the Vermont constitution, which is the speech, debate, and deliberation privilege that is afforded to individual legislators. Another What was that? 20. 20. Thank you. The last one that I'll, well, second to last that I'll flag in here, because I don't want to get too wild in the exemptions, I'm always happy to come back and talk about any one of them individually, the law enforcement privileges. And I like to make a stop here because it starts to highlight some of the sophistication that's required in the review of particular records. So subdivision V exempts records dealing with the detection and investigation of crime, but only to the extent that the production of records could reasonably be expected to interfere with enforcement proceedings, would deprive a person of the right to the fair trial, could reasonably be expected to constitute an unwarranted invasion of personal privacy, or could reasonably be expected to disclose the identity of a confidential source, including any private institution that furnished information on a confidential basis and in the case of a record or information compiled by law enforcement authority in the courts for criminal investigation, intelligence investigation, information furnished by a confidential source. Protecting confidential sources relates right back to that privacy perviso that the Supreme Court identified in the opening policy statement by the General Assembly. This is an area of law that has been deeply investigated by the federal courts in relation to the Freedom of Information Act. Another component here, if it would disclose techniques and procedures for law enforcement investigations, would disclose guidelines for law enforcement investigations or prosecution if that disclosure could reasonably be expected to risk circumvention of the law. What's this about? You get a records request as a law enforcement agency, and they are demanding records for all of the technical equipment that the law enforcement agency has purchased recently. And they have purchased some sort of advanced security device. Perhaps it's a body worn nuclear material detector. If you release those records, you are providing information to the public about the capacity of your law enforcement agency to detect that particular type of crime, and it would risk circumvention of law enforcement, right? Last exemption under this subdivision could reasonably be expected to endanger the life or physical safety of any individual. I'm going to skip down to Subdivision D because this is the part that I tried to give some pretext for that this is where it gets really sophisticated and interesting. We have affirmative duties that are applied to law enforcement agencies here. Public agencies shall not reveal information, information separate from a record. A record is the whole thing. Information is data within the record, but could be the whole record, depending on the analysis. That could be used to facilitate the commission of a crime or the identity of a private individual who is a witness to or victim of a crime, unless withholding the identity or information would conceal government wrongdoing. So let's just take the part about revealing the identity of a witness to or victim of a crime. You have a record that is subject to a records request, law enforcement agency does. There is a duty to review that record to determine whether any of the information within that record could reveal the identity of a witness to or victim of the crime that is the subject of the record. Depending on the way that the request has been submitted, you have varying levels of confidentiality that must be applied to the record. I love to bring this example up. Someone submits a records request for any record related to Tucker Anderson held by the Capitol Police. The Capitol Police have one record, and it is a record where I was a witness to a crime, and I provided a witness statement. Capitol Police must issue the following response to the request. We can neither confirm nor deny the existence of the record, of any record. Why? It's called a Glomar response. And it is the only way that a public agency can comply simultaneously with the duty to respond to the request, but also with the affirmative duty in statute that is a shall, it is nonnegotiable, to not reveal the identity of a witness to a crime. Because the request specifically names Tucker Anderson, any response that reveals that there is, in fact, a record related to me reveals the identity of a witness to the crime. Now, why is that important? Well, of course, because of witness retaliation, witness intimidation, a whole host of other things that could come up. It could be the individual who has committed the crime that has submitted the records for us. But in a broader sense, protects the privacy of individuals who are providing meaningful information to their government, which is what the privacy proviso and the policy of the state is really built on. The people of the state give a great deal of important information to state government, and the balance that must be applied by public agencies when they're complying with the Public Records Act is to simultaneously reveal information about the mechanisms of government and the way the government is carried out, but also to protect those important and vital sources of information and the relationship with private individuals who provide it. Law enforcement is fun in this context because it's very clear the relationship that the government needs to protect. Need individuals to provide information about wrongdoing and crime. So you need to protect information, provided by confidential sources, by witnesses, and by victims. Otherwise, the criminal prosecution cannot proceed without that information. But you can extrapolate this out to public agency business broadly and the important information that they collect from individuals. The last thing that I'll touch upon, personal information, Subdivision 7, probably the most defined by public agencies. Where there is personal information that is contained within public records, it is subject to the balancing test that I've talked about. And in any case where the individual's privacy interest outweighs the public interest in the information, the public agency will, for example, redact identities and personally identifying information within a record. The Supreme Court has articulated a standard for determining when privacy information meets this threshold. It could be any information that would cause loss of employment, loss of friends, embarrassment, harassment. If we want to revisit this at any point, please let me know. The last thing within the text at this section that I'll touch upon is that the Office of Legislative Counsel is directed to compile lists of all of the Public Records Act that are found in the Vermont statutes annotated. And I will now show you how many there are and where to find that information. To cause the Disney effect there by fast school. So for folks at home willing. If you go into the reports and research tab on the general assembly's website, right underneath it, PRA exemptions, there are three lists that are compiled. Stop. So TRA exemptions in order, and this document will show you every single Public Records Act exemption in order of title and section as it currently exists as of December of the current year. And this list actually has to be updated. February as of this time. So say that again, research? Reports and research. If you click on it, it'll drop down. You'll see Public Records Act exemptions, and then there are three lists. It's also a list organized by subject. And then finally, there is a list of Public Records Act exemptions that are subject to a requirement in subdivision D2 of section three seventeen. And subsection subdivision D2 requires a review for repeal. You're doing the reports repeal? Well, the same process happens for Public Records Act exemptions after 2019. So starting two years ago, there was a duty for the general assembly to review the exemptions that were adopted in 2019 and 2020 to determine whether they should continue in existence. Representative

[Chair Matthew Birong]: Hooper, then I wanna be conscious of time because we're gonna talk about villain and hid rules.

[Representative Robert Hooper]: The process is being moved away that anything gets added to the list. Individual agencies have no ability to independently.

[Tucker Anderson, Legislative Counsel]: Interesting question. The list only reflects what has been passed by the general assembly and exists in the Vermont statutes annotated. The way that exemptions are added is that the general assembly enacts something that contains a Public Records Act exemption. Public agencies, the state agencies, could adopt exemptions by rule if the general assembly has delegated that authority and there is a specific procedure under the Administrative Procedures Act or public agencies, state agencies, to identify that an exemption is being altered adopted, altered, or amended as part of the rulemaking process so that it can be reviewed by LCAR and referred to the government operations committees, who then can provide an opinion on whether the exemption added to the rule matches the delegation of authority in statute.

[Representative Robert Hooper]: You gotta go looking.

[Tucker Anderson, Legislative Counsel]: Also, the Vermont statutes annotated, those green books, if you go into title one Mhmm. You'll have to get the pocket part to look at the updated list because it's republished every year, but the VSA green books also have the legislative council list published in them. So there's multiple sources to find this. We didn't even get to the procedures. We'll book time for that later. Yeah.

[Chair Matthew Birong]: No, this has been incredibly helpful just to have

[Unidentified Committee Member]: primer, right?

[Chair Matthew Birong]: I was almost surplus. We got to

[Unidentified Committee Member]: know what we got before we go

[Chair Matthew Birong]: and know how to work on it.

[Tucker Anderson, Legislative Counsel]: I would argue it's been incredibly helpful. Yeah. So With that, shifting gear to Dylan. Dylan. Dylan's rule is a judicial gloss on the plenary authority of the general assembly to grant charters of incorporation to municipal corporations and what we would call eleemosynary corporations broadly, and to control the authority that is exercised by those municipal corporations. It is a way of constructing and understanding delegations of legislative authority down to the political subdivisions of the state. Sources of law for the general assembly to, exercise this control over municipal corporations specifically is derived from our chapter two, section six, which is the supreme legislative authority, which articulates that the general assembly has the power to grant charters of incorporation subject to section 69 of the constitution. Section 69 within chapter two articulates that with the exception of those governmental corporations and charitable corporations, the general assembly does not have the authority to use special law to grant, alter, or amend the charges of corporations. But for those municipal corporations, you can use special law, and, you may grant special privileges. And the phrase that is used is that those municipal corporations remain under the patronage and control of the state. Dillon's rule results from a decision rendered by Justice John Forrest Dillon of the Iowa Supreme Court. Prior to issuing that particular holding, the justice had actually written a treatise and textbook on municipal corporations that included Dillon's rule at its core. Dillon's rule essentially states that municipal corporations only have those powers that are expressly granted to the municipal corporation or those that are integral and important to the actual corporate existence of the municipality. So those that are expressly granted, those that are integral to the existence of the corporation. The way that the general assembly here grants that authority is either through general law. We'll highlight Title 24 as the title that contains almost all of the general law that provides authority to municipal corporations or through the granting of a charter, a special law, or an individual municipal corporation where particular authority, particular procedures or rules, or potentially even particular frame of government is granted to an individual municipal corporation. That could be city, town, or incorporated village. It could be a solid waste district. If you look at title 24 appendix, you can see the list of all of the charters that have been approved, with the exception of a few holdouts that will not provide, copies of the language that was approved by the General Assembly during a period when charters are not being codified, and that would be the village of Barton and the village of Old Bennington. Old

[Chair Matthew Birong]: Bennington.

[Tucker Anderson, Legislative Counsel]: Old Bennington. The General Assembly has established a set of procedures for proposing charters. Those procedures are contained in 17 BSA Section 2,645. They are exhaustive. I'm happy to run you through them sometime. But the origin of a proposal comes from the municipal corporation. It is either initially proposed by the legislative body or by the voters through petition. It is then warned according to specific procedures. The timeline is around sixty to seventy five days, depending on how certain things fall in line. And it is voted on at an annual or special meeting. If the voters approve it, a certified copy is issued to the Secretary of State, who then sends the certified packet to the House Clerk, the Senate Secretary, and the Office of Legislative Counsel. The General Assembly states that charter packet becomes a bill through an individual representative or a group of representatives, senators, typically not senators though, and then it is reviewed by the committees of jurisdiction and passed like any other act. Now, that does not bind the general assembly, because as you all know, statute does not bind your procedures, and it doesn't bind your plenary authority under the Constitution and Dillon's rule. So that means that you could reach into any individual charter if you wish to alter or amend that charter or even to to quote justice John Forrest Dillon, wipe all of the municipal corporations of the state from the map. You could determine that they no longer exist with a single swipe of the legislative. It also means that charters can be proposed without local input. Is up to the wisdom of the general assembly to determine whether municipal corporations exist, what their individual powers are. So that is your refresher on Dillon's rule. Always happy to come back and get into more detail. As I have said in this committee before, I have Dylan's rule tattooed on my back. And I respect your But fun. Person working experience and knowledge on the subject matter council. It's always, always greatly appreciated. Representative Hooper Burlington.

[Representative Robert Hooper]: So it comes to us, traditionally true vote of the public in the jurisdiction, but it doesn't seem to then be advertised, not subject to the sort of rule other than the Bill to pledge privilege to enable it.

[Tucker Anderson, Legislative Counsel]: Yeah. That's because the constitution is what determines the limits of the general assembly's authority. So once something has been proposed by a municipal corporation, it's live. That's under an interpretation of a statute. Right? The municipality, as a body corporate, has proposed the idea. There's no time limit built into 17 BSA twenty six forty five. And even if there was, it wouldn't bind you. Only the constitution would do that. The constitution doesn't say that, charter proposals die after a biennium. They they stay alive. A recent example would be non citizen voting in municipal elections provisions of the city of Montpelier Charter, that spanned a biennium. It was initially introduced in the second year of a biennium, was not passed during that biennium and was revived in a subsequent biennium. Yeah, that's always kind of a sleeper detail with people is, you know. Anything else for counsel? Boyden?

[Representative Sandra "Sandy" Pinsonault]: Well, you mentioned this, but why didn't your room start

[Tucker Anderson, Legislative Counsel]: in the house? So the Senate does not grant municipal charters an exemption from requests and introduction to what the House does. Gotcha. Yes. Now there's some nuance there, which is that the house, has interpreted the rule to mean that, the deadlines don't apply to the municipal term that has been voted on by the municipality. Otherwise, it's treated just like any other bill. The reason being that the underlying intent of the exemption for charters and mergers in the House rules is that because they're voted on by the municipalities, they're typically voted on in the March, which is past the introduction request deadlines and even past crossover. Something to note there is that often, in fact, every single time you send a bill over, a charter bill after crossover, it has to be voted on by Senate rules to be moved to the Senate Government Operations Committee. Can tell everyone's just fascinated by these processes. I use a lot of stuff,

[Chair Matthew Birong]: you know I do. That's just white when I click.

[Representative Sandra "Sandy" Pinsonault]: I thought you'd keep it all straight.

[Chair Matthew Birong]: Alright. It was cut too much,

[Tucker Anderson, Legislative Counsel]: but I I don't. I just so I I keep it in a tangle. Oh,

[Chair Matthew Birong]: god. That's that's it. That's a wrap on that. We are gonna touch more on these public records request conversation. That was a great just, like, resetting the barometer on the, Dylan's role in a segue. And why we had this. Yeah. You know, like,

[Tucker Anderson, Legislative Counsel]: how we set that up on the schedule? I think things. So

[Chair Matthew Birong]: with that, we're gonna get into a couple of introductions. So members, instead of taking a break, we're like I feel like we're riding a

[Tucker Anderson, Legislative Counsel]: good wave here. So you feel like you

[Chair Matthew Birong]: need to go take a bio break.

[Tucker Anderson, Legislative Counsel]: Do it on your own accord,

[Chair Matthew Birong]: but we are gonna keep supporting for the region's agenda. We are joined by representative Sakowitz. He is the sponsor of two pieces, both, h five one nine and H653. And so I'm just gonna invite representative Sackowitz up to, tell us about both, and then we'll shift gears over

[Tucker Anderson, Legislative Counsel]: to council who run through both. Representative. Great. Welcome.

[Representative Larry Satcowitz]: You for having me here. I'm representative from Randolph. So a little bit of background about these two bills. The town of Randolph has its own very small police department. In fact, it's not even a town of police department. It's a village police department. It's it's really a very small entity. For a long time, it was a fairly robust force. But in recent years, we've had increasing difficulties hiring officers. And this is something which, to my understanding, is happening around the state. Here in Randolph, we've been feeling it, particularly acutely. And one of the things that the town has is hearing from potential recruits is that a big obstacle is the current retirement plan that our officers are part of. That the that the the structure of it is not nearly as beneficial as some other ones that other officers around the state who have experience in other jurisdictions might have. And so the town has asked me to introduce this bill to allow the town to change its retirement plan from the from the current group that they're in to a new group. And this we were feeling this in the town very acutely last spring. And at sort of the last minute at the end of session, I introduced H519, which asked for the officers to be able to join group C. But with some more research over the summertime, they have determined that a better choice is actually group g. And so when I reintroduced the bill for this current session, which is h six five three, I believe, that's the bill I would really like you all to be paying attention to because that's with our updated information that would make the plan change to group G, which would be a much better fit for our officers and hopefully would allow us to actually hire some folks. Has been a real obstacle for our town, to our village, to hire officers, given the current retirement.

[Chair Matthew Birong]: Representative Hango.

[Representative Lisa Hango (Vice Chair)]: Do you know which group they're in currently? I

[Tucker Anderson, Legislative Counsel]: do not recall it. That's probably B.

[Representative Sandra "Sandy" Pinsonault]: That's the only choice to be that.

[Chair Matthew Birong]: I'm going into the gallery, and I see a representative from the treasurer's office.

[Tim Dugent, Director of Vermont Retirement Systems (State Treasurer’s Office)]: Hi, it's Tugent. The director of Montana Department of the Treasury's office. They're currently in group

[Chair Matthew Birong]: at the state's office. Currently, yes. Thank you, sir.

[Tucker Anderson, Legislative Counsel]: Thank you. Okay.

[Chair Matthew Birong]: Representative Hango.

[Representative Lisa Hango (Vice Chair)]: This may not be a question for representative Sackle, so I apologize if I'm getting too deep in the weeds for you. But do you know of other town or village police departments belonging to Group G?

[Representative Larry Satcowitz]: I am unaware.

[Representative Sandra "Sandy" Pinsonault]: Would be

[Chair Matthew Birong]: so Yeah, that was a little weedy. Ask someone Yeah. Yeah. Your instincts were true.

[Tucker Anderson, Legislative Counsel]: So I'm good. Which we

[Tim Dugent, Director of Vermont Retirement Systems (State Treasurer’s Office)]: Yes.

[Chair Matthew Birong]: I think my question is, did this run through a a vote with the public, or is this just an introduction

[Representative Larry Satcowitz]: as well? This was done at the request of the municipality.

[Chair Matthew Birong]: Okay. So this municipal request did not go out to a public vote. Correct. Anything else for representative Szakowitz?

[Tucker Anderson, Legislative Counsel]: Thank you for your time, sir.

[Representative Larry Satcowitz]: Okay, well, thank you all for your consideration and the opportunity to talk about the bill. You know, he represents one of

[Representative Kate Nugent]: the very best districts. Of course,

[Representative Lisa Hango (Vice Chair)]: he's a great district mate. That's true too. From what I hear.

[Tim Dugent, Director of Vermont Retirement Systems (State Treasurer’s Office)]: It's a rumor.

[Representative Sandra "Sandy" Pinsonault]: He's in attendance. It's pretty.

[Representative Robert Hooper]: Sure.

[Representative Lisa Hango (Vice Chair)]: Would the representative from the treasurer's office know the answer to my question?

[Tim Dugent, Director of Vermont Retirement Systems (State Treasurer’s Office)]: Would you like to join us, sir, in formal capacity at the table? Thank you. Please. Quiet entrance did not go unnoticed. Currently the refugees sorry, again. Tim Dugent, director of Vermont Retirement Systems from the state treasurer's office. We have three retirement systems the state, the teachers, and the municipal retirement system. And sort of as an anachronism of history, we have a couple of towns in the state system. Those towns are Randolph, Bethel, and Kendall. And that's who is in there, Currently not in group g. They are all of those employees, talents are in group f of the retirement system. There are other non state entities in the state system, specifically a handful of sheriff's offices. And a couple of years ago, the legislature passed act one thirty of 2024, which transitioned those the the deputies and the sheriffs into group g of the state system, having previously been in Group F?

[Chair Matthew Birong]: Representative Randolph, Representative Randolph. Representative Hooper of Randolph.

[Representative Kate Nugent]: That's Representative

[Representative Larry Satcowitz]: How many towns was that switched to f how many did that?

[Tucker Anderson, Legislative Counsel]: 13. It was

[Tim Dugent, Director of Vermont Retirement Systems (State Treasurer’s Office)]: It had always been in F 3, Randolph, Danville,

[Representative Sandra "Sandy" Pinsonault]: Right.

[Tucker Anderson, Legislative Counsel]: But didn't you just say that

[Tim Dugent, Director of Vermont Retirement Systems (State Treasurer’s Office)]: Some sheriff's offices moved from f to g of eight to 10. It was somewhere around, so half of our sheriff's offices are in the municipal system and half are in the state system. And so it was for those that were in the state system, I want to say eight to 10, but I'd have to check on that for you.

[Chair Matthew Birong]: Consistently inconsistent.

[Representative Robert Hooper]: Representatives and gals.

[Representative Lisa Hango (Vice Chair)]: Does that mean that the sheriffs and deputies are all now in Group G or not? I'm still trying to

[Tim Dugent, Director of Vermont Retirement Systems (State Treasurer’s Office)]: No, it does not. So some offices are in the municipal system. So different letters, different plans in the municipal system. It's about half and half, roughly. And so about half of them are in the municipal system and half of them are in the state system.

[Chair Matthew Birong]: Represent

[Representative Sandra "Sandy" Pinsonault]: Pinsonault. Is the benefit higher? Is the town's contribution higher in G than it is in F? So it is a better benefit.

[Tim Dugent, Director of Vermont Retirement Systems (State Treasurer’s Office)]: Town's contribution is the same. What this body did as part of Act 114, the big pension reform legislation a few years ago, was create group g. And at that time, it was for corrections workers and the highest department of mental health workers. And it was done it was designed to be revenue neutral to the state such that the additional cost of the richer benefit was borne by higher employee contributions.

[Tucker Anderson, Legislative Counsel]: Contributions. So

[Tim Dugent, Director of Vermont Retirement Systems (State Treasurer’s Office)]: that's where that came out

[Representative Robert Hooper]: at the time. Some like years of service is probably significant thing that they're looking at. F is a forty year plan plan, probably. Probably.

[Representative Lisa Hango (Vice Chair)]: You say that again please Robert?

[Chair Matthew Birong]: Yeah, I can barely hear you both.

[Representative Robert Hooper]: Length of service required in the different plans is probably what we're looking at.

[Representative Lisa Hango (Vice Chair)]: So Group G benefits are similar to Group F, but you have to work fewer years in order to receive them? So that's the benefit to moving to Group G?

[Tim Dugent, Director of Vermont Retirement Systems (State Treasurer’s Office)]: We call it a twenty year plan instead of a thirty year plan. So there's a multiplier that you get for each year of service. I'm in Group F like most employees are. So I get one and twothree percent of the year for each year of service. That's the group F multiplier. In group G, it's 2.5. So it works out to, in twenty years, you get to 50% of your average final salary, whereas for me in Group F,

[Representative Lisa Hango (Vice Chair)]: it's still like it's the right the recognition of the different fiscal positions. So just to clarify then, I heard you say earlier that the employee contribution in Group G is higher, so an employee would have to pay more into that system, but it seems like they would be getting a lot out of it because their multiplier is quite a bit higher. Thank you.

[Tucker Anderson, Legislative Counsel]: Okay. Anything else for?

[Tim Dugent, Director of Vermont Retirement Systems (State Treasurer’s Office)]: Looks like a yes. Was that a yes? Yeah. You'll have to

[Representative Robert Hooper]: the actuary will have to be involved to see what transition would affect them specifically. We

[Tim Dugent, Director of Vermont Retirement Systems (State Treasurer’s Office)]: would work on that with them. We're we're looking at this bill and talking with the town, and so we would work with the town to make sure all the details were Would

[Representative Robert Hooper]: you think there would be interest or advantage to all three?

[Tim Dugent, Director of Vermont Retirement Systems (State Treasurer’s Office)]: I think those are the details that we would be looking at, because one, it's not the history of the pension systems to apply as a revision to its specific town. And so I think we'd like to work with the town and talk about how this would be effective. I appreciate your willingness to do that.

[Tucker Anderson, Legislative Counsel]: Yeah. Anything else? Nope.

[Chair Matthew Birong]: Thank you for popping, that was very helpful. Yes,

[Representative Sandra "Sandy" Pinsonault]: thank you.

[Unidentified Committee Member]: I just, I'm sorry, I just thought of one more question. Please. Just I was trying to figure out how to word this. Yeah. Don't apologize. So there's officers right now in the in the f. Correct? Yes. Is there gonna be additional cost to them? Have they looked at that, what the cost is for them to move from f two g to make up that time? Because there's gonna be if you've got eight years in the f, you haven't paid in enough to make eight years into the g. Yeah. That's a

[Tim Dugent, Director of Vermont Retirement Systems (State Treasurer’s Office)]: great question. When we do transfers like this, it does not retroactively change the time you've had. So if you had ten years in Group F, you're going to get that Group F benefit for those ten years. Then starting when you move into Group G, you get the Group G benefit. And at the time of retirement, our retirement specialists look at it and they say, Okay, you've got ten years of this benefit. You got another ten years or whatever of this benefit. Add them together, and that's your pension, but you're not retroactively changing anything. But it's a great question because you always have to think about cost when you're making the change to the pension. I didn't

[Unidentified Committee Member]: know if there was a buy up proposal, like they had to buy up their time.

[Tim Dugent, Director of Vermont Retirement Systems (State Treasurer’s Office)]: I've offered them. That's very expensive. That's that's forward thinking.

[Unidentified Committee Member]: Just trying to make sure they understand that clarity on it. Oh, yeah. It's really important. That's the eye opener.

[Chair Matthew Birong]: Alright. Second last call.

[Tucker Anderson, Legislative Counsel]: I can release, sir. I

[Chair Matthew Birong]: mean, that was pretty engaged and detailed. Counsel. Do you

[Tucker Anderson, Legislative Counsel]: have anything further to add on subject matter? Okay.

[Representative Lisa Hango (Vice Chair)]: Can I ask a question?

[Representative Sandra "Sandy" Pinsonault]: Certainly. It's just in general. Why does that benefit have to come to us? Why is it not part of a charge?

[Chair Matthew Birong]: Well, this is a request to have it applied to the Charter, but also we are like the pension system and all of the benefit systems and all of those structures within that. So it actually is a two pronged focus on our committee's jurisdiction.

[Representative Sandra "Sandy" Pinsonault]: He's incorporated. I'm just thinking about history.

[Unidentified Committee Member]: Because their retirement system, it happens to be in their charter from what I'm reading. They have to change.

[Chair Matthew Birong]: They have to do that through the charter process, but we are also the jurisdictional home of

[Representative Sandra "Sandy" Pinsonault]: compensation and

[Representative Lisa Hango (Vice Chair)]: retirement benefits for public officials and employees.

[Chair Matthew Birong]: Are also our jurisdiction.

[Tucker Anderson, Legislative Counsel]: Gotcha. So if I heard you correctly, would mind if I should bounce? From my screen, council. Tucker Anderson Legislative Council, the town does not currently have a charter. Oh, In order to give express authority to the town to enter this group, it's to adopt a charter for the specific purposes. Charter caption giving this special authority to just this one tenant, which is what a charter is, special authority for one municipal corporation. In this case, the ability to enter group G.

[Chair Matthew Birong]: Yes. I forgot that. Read all the same

[Tucker Anderson, Legislative Counsel]: charter list.

[Chair Matthew Birong]: That's making my sense. Correctly, you're

[Unidentified Committee Member]: saying move 519 into

[Tucker Anderson, Legislative Counsel]: 653. Correct, Larry?

[Chair Matthew Birong]: Well, no. I think it's ignore 519 and then Ignore it. And then look at the other one because they kinda like Got it. So you're their focus of their request. Same focus, but in a different manner. Got it.

[Tucker Anderson, Legislative Counsel]: That's right.

[Unidentified Committee Member]: Root me out. Yeah.

[Chair Matthew Birong]: You have a question, Amber?

[Tucker Anderson, Legislative Counsel]: There another way to do it, particularly if we were to consider the other towns like Bethel, Danville, whatever sheriff's departments? Maybe one of the cluster, the charters? You could, it starts to get messy and you run into the old Bennington situation, which is that you have an uncodified act of the General Assembly granting special authority. That makes it more difficult for the public to find, and it also leads to a loss of records about where the legislative authority that is being granted to these municipal corporations came from. So there's been an effort, especially over the last thirty years, to codify every special act granting authority to a municipal corporation in Title 24 appendix as the charter for that municipal corporation. Is it easy to find all of the special privileges, powers, and authority that is being granted to municipal corporations within the state? You could amend the VCRS statute in group G to expressly call out those municipal corporations. It's less clean than the retirement system. Vermont State Employees Retirement System. I don't have to do two factor authentication every fifteen seconds. I can just tell you to detect. Just do the facial scan.

[Tim Dugent, Director of Vermont Retirement Systems (State Treasurer’s Office)]: What could go wrong?

[Tucker Anderson, Legislative Counsel]: What you're saying is the more detailed,

[Representative Larry Satcowitz]: the more simple it is somehow? Isn't that always the way? The

[Tucker Anderson, Legislative Counsel]: complexity of simplicity. S3 is in section four fifty five in the definitions. Done, Questions? Any further questions?

[Chair Matthew Birong]: Well, that covers the agenda for the morning. And now, we'll call it a little ahead of schedule, but that'll give, representative Hango and I some time to go over our presentation for the caucus poll later today. So so we'll take that as a win with the schedule. Mhmm. Thank you so much, counsel. That was a

[Tucker Anderson, Legislative Counsel]: lot of information to bestow upon us as we lead into this session with the work ahead. I