Vermont law is specifically clear about when municipal boards can go into executive session. According to state statute 1 V.S.A. § 313, select boards may enter into executive session for mediation, arbitration, civil action, contracts, real estate transactions, employment/employee issues, discussion of documents not available to the public, or in a situation of clear and imminent peril to the public safety.
What is less than clear here, however, is whether the fact that the town hired an attorney to review the historical deeds relating to Sue Carter's property and the fact that Carter's attorney issued a letter in response to the town, constitute a "civil action" warranting executive session.
To the select board's credit, members came out of executive session and publicly took action, moving to hire an attorney to "ascertain a Declaratory Judgment identifying the location of the where the Path lies, and the rights of the Town."
But the question remains as to whether elected officials can go behind closed doors to discuss whether to take such action and it further begs the question of whether the public has the right to hear elected officials deliberate on such important questions.
According to the Vermont secretary of state's office, the issue of whether "anticipatory civil action" is reason enough for executive session is not clear. The law does, however, require the board to conclude (and state publicly) that premature public knowledge would place the town at a substantial disadvantage, before going into executive session to discuss pending litigation and civil matters.
Regardless of the letter of the law regarding anticipatory civil action, there is also the matter of common sense and public opinion in a small town. People in Warren and beyond are carefully watching how the town handles this issue of private property rights and a path that many would like to see public.
It would behoove the town to deal with the matter as transparently as possible and allow the public to see, hear and understand the reasoning of the decision makers on this issue.
--LAL
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