In defense of the closed session

In defense of the closed session

This column originally appeared in the Williston Observer on June 16, 2011.

Recent reporting in the Observer brought to light the policy of our Development Review Board to go into closed session when deliberating about its decisions.

The policy, done in accordance with Vermont open government laws, pre-dates all current DRB members. Quoting our reporting, the closed sessions were "justified by [board] members as necessary to an effective discussion and decision-making process."

Government, in the final analysis, is us. We, the people, select our representatives to various governmental bodies, either directly or indirectly. The members are responsible for the public trust and responsible to the public at large. In a perfect world, all hearings, deliberations, and votes would be public.

Because our institutions are human ones, they are subject to the ill effects of bias, prejudice, and favoritism. The more open government is, the lower effect these human frailties will have on the decisions come to by the bodies. If a board member is actively prejudiced against an applicant, a pattern will emerge that any one can see, because any one can watch. Mitigating the effects of such human failings is one of the best aspects of open government.

However, openness can also affect frankness. As Burlington DRB Chair Austin Hart was quoted in our article, "It's a lot harder to say 'no' when they are sitting right in front of you."

And there's the rub. If the DRB should say no to a project or request, but board members just cannot quite summon the courage to do what they think is right ... well, that is where the benefit of the closed session comes in. The members of the DRB have to make judgement calls based on the evidence and testimony given to them. The members must then talk amongst themselves to decide if the project before them meets the town's plan.

When I think of how this process works, I think immediately of a judge or jury in court. It would be unthinkable for a new deliberation process to emerge, where the judge goes to chambers to make a decision and each step of the way, the lawyers, defendant, plaintiff, and even the public could weigh in.

Similarly, if a jury room was populated not only by the members of the jury, but also the parties in the case, the public, the media - no one would think that this was a good idea. The things a jury hashes out in its deliberations, the statements made by jurors, the arguments... these are not for public consumption.

I'm a big advocate of open government. I want to be able to access journals and minutes of deliberations quickly, easily, and freely. I want to be able to watch congressional hearings live on television or on the Internet. I want to be able to sit in the back of the room during a school board meeting. I want to see the testimony before the DRB live or on public access cable.

But I don't think that every single step in the process has to be open to the public as it happens. There is a practicality to a closed meeting that just makes sense to me.

That having been said, I think that closed meetings should have inviolable rules - and I should note that some of these rules are currently in effect, according to town bylaws. Minutes should be taken - not a word-for-word journal, but minutes that can be referred to by the board and the public in the future. Decisions of the board should be explained in writing - in the bylaws, this is referred to as a "record of decision that conveys the DRB's findings of fact and conclusions of law." Members of the board should be required to back up their closed-session vote in public, just as a jury may be polled following the announcement of its verdict in a case.

Open government is a crucial and important part of our democracy. However, government must, at the same time, be effective. If to be effective it must be closed for certain steps in the process, so be it.