Montpelier firefighters challenge city over withheld emails
By David Taube
STAFF WRITER | February 05,2013
MONTPELIER — Local and state firefighter unions have cried foul over withheld emails in which city officials discussed a Montpelier Fire Department budget issue, but the city agreed Monday to release some documents initially kept private.
The Professional Fire Fighters of Vermont statewide union filed a public records request Jan. 25 after a final Montpelier City Council budget hearing, seeking exchanges between city officials, and the city withheld 30 records. But Montpelier firefighters union President Jake Larrabee said a lawyer for his union reviewed the city’s response and believes the records are public.
“We’re going to discuss whether we want to litigate to get them released,” Larrabee, a lieutenant firefighter with the city, said Monday.
City Manager William Fraser wrote in response to the public records request that 29 records were not being released because of an exemption that allows certain budget materials to be withheld. Another record was withheld on the grounds of privacy and personnel matters.
Three emails were disclosed, according to a city response that the state union provided to The Times Argus. But in a reversal of the initial decision, Mayor John Hollar said later Monday that many of the documents will be released now. He said that on second consideration, many of the exchanges deal with factual matters and can be released. Emails between himself and Fire Chief Bob Gowans and Fraser, however, will remain withheld because they are protected by statute, he said.
“We have to have candid conversations, whether it’s over the phone or by email, before we make a policy determination,” Hollar said.
The records request came after a city firefighter-led effort to keep a firefighter position from being cut during budget deliberations. Supporters gathered more than 840 signatures by petition to put a question on the Town Meeting Day ballot asking voters to restore the funding for the position. At the final budget meeting in late January, the council approved reducing the overall budget by the exact amount that city firefighters sought to add.
The position slated for elimination will be vacated when a lieutenant firefighter retires this summer. The restructuring would mean the Montpelier Fire Department would have one fewer day each week when a four-person crew is on duty overnight. The department currently has four nights each week with only a three-person crew.
The firefighter ballot item says the requested funding will be used specifically to restore the position that the city plans to cut. But according to the city, the money could go anywhere, so even if the item passes, the firefighter position could still be eliminated. The council’s motion to cut roughly $50,000 from the budget, however, does not keep the city from restoring the position if it chooses.
The exemption cited by Montpelier for 29 of the 30 records withheld covers “interdepartmental and intradepartmental communications” that are “preliminary to any determination of policy or action or precede the presentation of the budget.” For the exemption to apply, the records must be over and above primarily factual materials. The city’s attorney assisted in the initial response, Hollar said.
The union’s Burlington-based attorney, Jim Dunn, said those conditions make the exemption narrow and the materials should be released, at the very least with redactions. Dunn and Robert Hemley, the attorney for The Times Argus and Rutland Herald, both said at first glance the exemption also appears to apply only to municipal departments, not elected officials.
The 30th record was withheld because the city cited two exemptions to the state’s open records law, covering records involving the “formulation of policy where (disclosure) would constitute a clearly unwarranted invasion of personal privacy” and personnel files.
Dunn said the firefighters had not yet appealed the city’s withholding of the documents.
Larrabee said that at the final budget meeting, the council also held breaks and then seemingly changed the course of its proceedings after he saw members talking with each other outside the meeting.
Hollar countered that, even in the Legislature, representatives will talk among themselves before casting votes, and that elected officials should be expected to discuss issues when there is not a quorum. He said private conversations can be critical to the process.