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Symington sued over e-mail access

By Louis Porter Vermont Press Bureau
MONTPELIER - A Fair Haven teacher is in the process of filling a lawsuit against Speaker of the House Gaye Symington - the Democratic candidate for governor - over access to her correspondence.

The lawsuit may settle a gray area in the law that has periodically arisen for several years: How much access should the public have to lawmakers' correspondence. But coming just a few weeks before the election, the suit also carries some political overtones.

Curtis Hier, a high school social studies teacher, had requested e-mails about lobbying related to an education spending bill. Symington replied that although Legislative Council, the attorneys for lawmakers, do not believe legislators are legally obligated to grant public access to their correspondence, she would be willing to do so.

However, since the legislative e-mail system purges messages after 90 days, she does not have those e-mails, Symington said in her letter. She does have copies of written correspondence on the matter that Hier is free to look through, Symington added.

Hier is going to file his lawsuit, perhaps as early as this morning, because the question of whether lawmakers' e-mail is a public record or not needs to be settled, he and his attorney said.

"The whole legal question needs to be settled and I think this will do it," Hier said.

Hier said the suit comes out of his desire to find out how much influence the Vermont National Education Association, the state's main teachers' union, has over lawmakers. It's focus is a bill that would require two votes on some school district budgets. The bill passed the House, Senate and was signed into law by the Governor in 2007.

But the union – and others – opposed that law and the House repealed it this year in favor of a different budget growth restriction. Ultimately the repeal did not pass the Senate and the two-vote provision – called Act 82 – remains in effect.

"I started all of this because I get the sense that a lot of money is being overspent in education," Hier said. "I am one of the few educators who talks about that."

"People should be able to find out how this sudden reversal on Act 82 came about," Hier said. "I wanted to know how much pressure they put on the House to reverse the two-vote mandate."

Hier has not looked at the hard copies of correspondence that was saved and offered to him, although he hopes to at some point, he said. Other lawmakers who were also the subject of Hier's request for correspondence did not respond at all, or have not offered to turn over their correspondence.

Symington said because of her campaign "I am in a different position and I would rather not have this become a political football in a campaign, so I have chosen to release the e-mails."

Lawmakers plan on returning to review public records law as it applies to the Legislature when they return in January, although she will no longer be one of them, Symington said.

As the only one of the lawmakers among the group Hier initially wrote to – all of whom are Democrats – to be named in the lawsuit there is clearly another motive at work, Symington said.

"It is pretty clear this is politically motivated at the moment," she said.

Not so, according to Hier.

He names Symington because that is the way to clearly settle the legal question, Hier said.

Symington said the policy of eliminating e-mails after 90 days began before she became Speaker. "We are the most open branch of government," she said, pointing out that all discussions and votes are public.

But making public all of the correspondence from constituents who have problems and look to their lawmakers for help should be thought through carefully before it is done, Symington said.

"Vermonters correspond with legislators about pretty personal stuff," she said.

But it was in part lawmakers themselves who made such records public documents when they decided that the deliberative process exemption to public records law – asserted by Gov. James Douglas' administration – was not legal, said Paul Gillies, an attorney representing Hier who has experience with municipal and government law.

"It all hinges on that 2005 amendment," he said. "A citizen's letter does not have a privilege attached to it."

Still the practice of not considering legislative e-mail a public record goes back to when electronic messages were first used, said Rep. Floyd Nease, D-Johnson. Nease, the House assistant majority leader, was also one of the legislators whose e-mail Hier sought.

"Until now it has been the general counsel's advice that Legislative e-mails are not public records," he said. "We have been operating that way since e-mails began."

"Obviously because of this we are going to have to deal with this in the next legislative session," he added.

However, the question has not been entirely settled. A lengthy 2005 study by a legislative staff member stated that although correspondence with legislative lawyers are not public records – attorney-client privilege is a common exemption – other correspondence is public.

"No blanket exemption exists for Legislative e-mail," according to the study.

However the legislative lawyers who make decisions about policy apparently overruled that opinion.

A union official said the Vermont NEA's position on the two-vote measure, known as Act 82, was no secret.

"We are very upfront what our policy positions are. Whatever the Legislature decides to release they will release," said Darren Allen, a spokesman for the teacher's union. "Did we seek to let the Legislature know what our preferred outcome was? Of course we did."

The NEA did not endorse Symington, instead picking Independent candidate Anthony Pollina.