Negotiations Committee of Caledonia Central Supervisory Union v. Caledonia Central Education Assn.

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.
2018 VT 18
No. 2017-142
Negotiations Committee of Caledonia Central Supreme Court
Supervisory Union
On Appeal from
v. Superior Court, Caledonia Unit,
Civil Division
Caledonia Central Education Association October Term, 2017
Elizabeth D. Mann, J.
Pietro J. Lynn and Sean M. Toohey of Lynn, Lynn, Blackman & Manitsky, P.C., Burlington, for
Plaintiff-Appellant.
Rebecca P. McBroom, Vermont – NEA, Montpelier, for Defendant-Appellee.
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.
¶ 1. EATON, J. Negotiations Committee of Caledonia Central Supervisory Union
(Committee) and Caledonia Central Education Association (Association) dispute whether
collective bargaining negotiations between a school board negotiation committee and a teachers’
association constitute “meetings” under the Open Meeting Law and, if so, whether those meetings
may be held in executive session. The Caledonia Superior Court dismissed Committee’s
complaint seeking declaratory relief for lack of subject matter jurisdiction. We reverse the
dismissal for lack of subject matter jurisdiction and hold that Vermont’s Open Meeting Law does
not apply to labor negotiations between a school district negotiating committee and a labor union.
¶ 2. By way of background, the Caledonia Central Supervisory Union School Board
created Committee to negotiate a new collective bargaining agreement with the local bargaining
unit of CCSU’s support staff, Association. Association is an affiliate of the Vermont chapter of
the National Education Association, a national labor union. On November 14, 2016, Committee
met with Association to engage in labor negotiations during a duly warned public meeting. The
session was dedicated to negotiations over the ground rules that would govern future negotiations
concerning employment of CCSU support staff. The meeting was held in open session, meaning
open to the public. During the meeting, Committee and Association considered whether the
ground rules should require that future substantive negotiations between the two should be held in
executive session, a meeting from which the public is excluded.
¶ 3. Generally, meetings of a public body subject to the Open Meeting Law are open to
the public. 1 V.S.A. § 312(a)(1). As an exception to this general rule, Open Meeting Law provides
procedures for entering executive session, a “session from which the public is excluded.” 1 V.S.A.
§ 313(a). In relevant part, § 313(a)(1)(A) and (B) specify that “[a] public body may not hold an
executive session except to consider . . . contracts [or] labor relations agreements with
employees,” and only “after making a specific finding that premature general public knowledge
would clearly place the public body or a person involved at a substantial disadvantage.” Id.
§ 313(a)(1)(A), (B). The public body has discretion over the parties and persons permitted to
attend executive meetings. Id. § 313(b).
¶ 4. Regarding the issue of whether their negotiations should continue in executive
session, Committee and Association took divergent views. Association requested that negotiations
concerning a new collective bargaining agreement, including compensation and benefits for
support staff, be held in executive session. Association also stated that Committee’s requirement
that all future negotiation sessions regarding collective bargaining agreements be held in public
constituted an unfair labor practice, and that Association would not engage in negotiations over
2
any topic unless Committee agreed to hold negotiations in executive session. After ten minutes of
discussion in open session, Committee moved to caucus in executive session. Committee went
into executive session, deliberated, then came out of executive session and announced that it did
not see a basis to negotiate in executive session except when sensitive issues needed to be
discussed.
¶ 5. Association took issue with Committee’s decision for two reasons. First,
Association contended Committee entered executive session without making a specific finding
that premature public knowledge of the topic to be discussed—whether to hold future negotiations
between Committee and Association in executive session—put either party at a substantial
disadvantage, as required by the Open Meeting Law. 1 V.S.A. § 313(a)(1). Second, Association
reiterated that Committee’s unilateral decision that future bargaining occur in public constituted
an unfair labor practice. Association declined to proceed with negotiations in open session, the
meeting ended, and Association subsequently refused in writing to negotiate any subjects until
Committee agreed to negotiate in executive session.
¶ 6. On December 8, 2016, Committee filed its complaint for declaratory relief in the
Caledonia Superior Court seeking a declaration that, under the Open Meeting Law, Committee is
required to hold its meetings in public absent a finding that premature public knowledge puts either
party at a substantial disadvantage pursuant to 1 V.S.A. § 313(a)(1). In its answer on February 13,
2017, Association moved to dismiss the complaint for lack of subject matter jurisdiction and
absence of a justiciable controversy. Association claimed the trial court did not have subject matter
jurisdiction because the Vermont Municipal Labor Relations Act governs the parties’ relations and
the Vermont Labor Relations Board (VLRB) is the proper entity to resolve the issue.1 On the
1
On February 21, 2017, Association filed an unfair labor practice complaint with the
VLRB. The proceedings at the VLRB have no bearing on the trial court’s decision, or our opinion
here.
3
absence of justiciable controversy claim in the superior court, Association asserted that Committee
refused to assess whether bargaining in public would put itself or a person (Association) at a
substantial disadvantage prior to entering executive session, and therefore did not follow the
statutorily prescribed procedure. Committee opposed the dismissal motion and moved for
judgment on the pleadings, asserting that the trial court, not the VLRB, is the appropriate entity to
resolve matters related to the Open Meeting Law and that the negotiations were required to be held
in open session.
¶ 7. On April 10, 2017, the trial court issued a single-paragraph entry order granting
Association’s motion to dismiss for lack of subject matter jurisdiction. The decision referenced
and adopted a previous decision issued by the Franklin Superior Court,2 which presented a similar,
2
Negotiations Comm. of Franklin Cent. Supervisory Union v. BFA St. Albans Educ.
Ass’n, et al., 35-2-16 Frcv (Vt. Sup. Ct. Apr. 12, 2016). In Franklin, the Negotiations Committee
of Franklin Central Supervisory Union and the St. Albans and Fairfield Education Associations,
teachers’ unions, met to discuss the “ground rules” for future negotiations. The meeting was held
in open session, and the groups disputed “whether future sessions should be open to the public”
under the Open Meeting Law. The Committee then brought an action seeking declaratory
judgment as to “whether it is lawful to negotiate with the [A]ssociations in executive session”; the
court found this action to be premature because the Committee was “unable, or unwilling” to
engage in the analysis of whether either party was placed at a “substantial disadvantage” by public
discussions, as required by the statute. The court stated:
[T]he only violation that the [c]ourt can imagine would be self-
inflicted, namely by way of the Committee resolving as a matter of
fact that it cannot make the finding necessary to hold the
negotiations in executive session, and then holding a meeting in
executive session. The second event has certainly not occurred, and
there is no record that the first event actually occurred.
....
Otherwise stated, the claim . . . is not ripe for judicial determination.
The court went on, in dicta, to suggest that if the Committee scheduled its next negotiation with
the Associations and insisted on holding the meeting in open session by finding or failing to make
a finding that it must do so under the Open Meeting Law, then the Association could refuse to
attend and either party could petition the VLRB alleging an unfair labor practice. The court further
suggested that “the proper remedy appears to lie with the Board, not the Court.” The issue remains:
whether these negotiations are “meetings” under the Open Meeting Law. We address that issue
here.
4
but not identical, dispute. In dismissing the action for lack of subject matter jurisdiction, the court
did not address Committee’s motion for judgment on the pleadings. Committee timely appealed
the trial court’s decision, challenging the dismissal for lack of subject matter jurisdiction and
squarely presenting the issue—whether negotiations between Committee and Association are
“meetings” under the Open Meeting Law, and therefore subject to Open Meeting Law
requirements. Committee does not suggest any material facts are in dispute to resolve this issue
and seeks a remand with instructions to the trial court to enter judgment on the pleadings in its
favor.
I. The Merits of This Case are Ripe for Review by This Court
¶ 8. We review the trial court’s dismissal of Committee’s complaint for declaratory
judgment for lack of subject matter jurisdiction, as well as questions of statutory interpretation, de
novo. See Rheaume v. Pallito, 2011 VT 72, ¶ 2, 190 Vt. 245, 30 A.3d 1263 (“Dismissal for lack
of subject matter jurisdiction under Civil Rule 12(b)(1) is reviewed de novo . . . .”); Stowell v.
Action Moving & Storage, Inc., 2007 VT 46, ¶ 9, 182 Vt. 98, 933 A.2d 1128 (applying de novo
review to question of statutory interpretation).
¶ 9. The trial court incorrectly determined that it lacked subject matter jurisdiction over
the matter at hand; contrary to the court’s findings, it had jurisdiction to consider the parties’ claims
because: (1) the issue was ripe—the parties’ positions and interests were concrete, clear, and
adverse;3 and (2) Committee’s complaint for declaratory judgment squarely raised the issue of the
applicability of the Open Meeting Law, which is within the purview of the court. See V.R.C.P. 57
3
The issue here was ripe for determination when Committee decided not to negotiate in
executive session and Association refused to attend future negotiations, effectively halting
negotiations, if not sooner. “Claims are ripe when there is a sufficiently concrete case or
controversy,” as opposed to one that is abstract or “purely hypothetical.” State v. M.W., 2012 VT
66, ¶¶ 11-12, 192 Vt. 198, 57 A.3d 696 (quotation omitted). By the time Committee decided not
to enter executive session and labor negotiations ceased, the controversy in this case was more
than sufficiently concrete to support a declaratory judgment action.
5
(implementing statutory declaratory judgment procedure); 12 V.S.A. § 4711 (outlining scope of
declaratory judgment). “The purpose of a declaratory judgment is to provide a declaration of
rights, status, and other legal relations of parties to an actual or justiciable controversy.” Doria v.
Univ. of Vt., 156 Vt. 114, 117, 589 A.2d 317, 319 (1991) (quotation omitted). Without the
presence of an actual or justiciable controversy, “a declaratory judgment is merely an advisory
opinion which [the court] lack[s] the constitutional authority to render.” Id. Therefore, declaratory
relief is only available “when a party is suffering from the threat of actual injury to a protected
legal interest.” Id. (quotation omitted).
¶ 10. When reviewing dismissal for lack of subject matter jurisdiction, we “tak[e] all
uncontroverted factual allegations of the complaint as true and constru[e] them in the light most
favorable to the nonmoving party.” Travelers Indem. Co. v. Wallis, 2003 VT 103, ¶ 7, 176 Vt.
167, 845 A.2d 316. The civil division, including the superior court here, is Vermont’s court of
general jurisdiction. 4 V.S.A. § 31(1). Thus, the court presumptively has jurisdiction over the
declaratory judgment action here, pursuant to 12 V.S.A. § 4711. Association implies there is a
statutory exception to the court’s authority—or that the court should abstain from asserting its
general subject matter jurisdiction—when the subject of the issue at hand is within the scope of
the VLRB’s statutory authority. While the Legislature has specifically authorized the VLRB to
adjudicate certain claims, such as unfair labor practice claims, the labor laws do not broadly
provide that all matters relating to labor relations are solely within the purview of the VLRB. 21
V.S.A. § 1727. This is not to say the VLRB may not properly consider the Open Meeting Law in
its decision-making process. There may be many instances when the VLRB is called upon to
consider the Open Meeting Law in the context of a labor dispute. However, the Open Meeting
Law also has potential application in numerous circumstances not involving labor relations, which
remain within the court’s jurisdiction; such is the case here.
6
¶ 11. Here, the court was the appropriate body to address Committee’s claim for
declaratory judgment because the question at hand—a legal question posed by parties facing the
threat of actual injury to a protected legal interest—is not excepted from the court’s general
jurisdiction and is encompassed within the declaratory judgment provisions.4 Because the matter
is ripe and because the Court has subject matter jurisdiction over the claim for declaratory
judgment seeking interpretation of the Open Meeting Law, the lower court erred in granting the
motion to dismiss.
¶ 12. Ordinarily, the determination that a motion to dismiss was improperly granted
would result in a remand for consideration of the merits of the claim. However, Committee has
filed a motion for judgment on the pleadings and Association has filed nothing indicating any
disputed issues of fact or matters outside the pleadings necessary for determination of the central
question—whether the Open Meeting Law applies to labor negotiations between a school district
and its teachers. Committee, in particular, has briefed this issue and argued on appeal that this
Court should decide that the Open Meeting Law applies to these negotiations. Because this issue
presents purely a question of law, which we review de novo, it serves no purpose to remand the
matter for determination by the trial court only to have the court’s holding appealed again. See
Towns v. Northern Sec. Ins. Co., 2008 VT 98, ¶ 16 n.4, 184 Vt. 322, 964 A.2d 1150 (finding it
appropriate for Court to address issue not decided by trial court when issue was raised below and
was “fully briefed on appeal,” and doing so served the “interest of judicial economy”); Cardiff v.
4
Moreover, the superior court has express authority to oversee violations of the Open
Meeting Law provisions. Specifically, 1 V.S.A. § 314(c) provides a path for aggrieved parties to
bring “action in the Civil Division of the Superior Court in the county in which the violation has
taken place for appropriate injunctive relief or for a declaratory judgment.” 1 V.S.A. § 314(c). In
this case, Committee alleges that collective bargaining negotiations are “meetings” under the Open
Meeting Law and that failure to reestablish negotiations in open session constitutes a violation of
the Open Meeting Law. We have jurisdiction to consider whether such a violation occurred and,
if so, to enforce the Open Meeting Law under 1 V.S.A. § 314(c).
7
Ellinwood, 2007 VT 88, ¶ 12, 182 Vt. 602, 938 A.2d 1226 (mem.) (reaching issue not decided by
trial court in interest of judicial economy). Accordingly, we reach the issue of whether labor
negotiations of this type are subject to the Open Meeting Law in this appeal.
II. Collective Bargaining Negotiations Between Committee and Association Are Not
“Meetings” Under the Open Meeting Law
¶ 13. We now turn to the central issue: Whether contract-bargaining negotiations
between Committee and Association are “meetings” under the Open Meeting Law, 1 V.S.A.
§ 310(2).5 We conclude they are not. In reaching this conclusion, we find the Open Meeting Law
to be ambiguous as to whether labor negotiations are “meetings” under the law. In resolving this
ambiguity, we consider the plain language of § 310(2) and the interplay of three legislative
enactments—the Vermont Open Meeting Law, 1 V.S.A. §§ 310-314; the Public Records Act, 1
V.S.A. §§ 315-320; and the Labor Relations for Teachers and Administrators Act, 16 V.S.A.
§§ 1981-2028—as well as customary practice in the Vermont public sector and the Court’s ruling
in Blum v. Friedman, 172 Vt. 622, 782 A.2d 1204 (2001) (mem.).6
5
Because one party to the negotiations, Committee, is a “public body,” the Open Meeting
Law will apply if the negotiations are “meetings” under 1 V.S.A. § 310(2). Here, Committee is a
“public body” within the plain meaning of the Open Meeting Law. 1 V.S.A. § 310(3); see Valley
Realty & Dev., Inc. v. Town of Hartford, 165 Vt. 463, 466, 685 A.2d 292, 294 (1996) (“If the
statute is unambiguous, we first look to the plain, ordinary meaning of the language.”). Section
310(3) of the Open Meeting Law states that “ ‘[p]ublic body’ means . . . any board[ or]
council . . . of any . . . instrumentality of the State or one of more of its political subdivisions, or
any committee of any of the foregoing boards, [or] councils.” 1 V.S.A. § 310(3) (emphasis added).
In Vermont, school boards are public bodies under this definition. See 16 V.S.A. § 1981(3)
(“ ‘School board’ means the board of school directors of a school district or its equivalent in any
independent elementary or secondary school.”); id. § 1981(4) (“ ‘School district’ means any public
school district or any independent elementary or secondary school within the State that directly or
indirectly receives support from public funds.”). Committee, as a “school board negotiations
council,” similarly meets this definition. Because Committee is a public body, Committee
“meetings” are subject to the Open Meeting Law.
6
The VLRB has similarly interpreted the term “meeting” pursuant to 1 V.S.A. § 310(2)
of the Open Meeting Law utilizing tools of statutory construction. Washington Ne. Supervisory
Union v. Cabot Teachers’ Ass’n & Twinfield Teachers’ Ass’n, 34 VLRB 4 (May 2, 2017),
http://vlrb.vermont.gov/decisions/download [https://perma.cc/678X-2AJT]. Here, we address
8
¶ 14. We apply traditional rules of statutory construction to determine the scope of the
term “meeting” pursuant to 1 V.S.A. § 310(2) of the Open Meeting Law. See, e.g., Valley Realty
& Dev., Inc., 165 Vt. at 466, 685 A.2d at 294 (applying traditional canons of statutory construction
to interpret 1 V.S.A. § 314 remedy provision of Open Meeting Law and give effect to legislative
intent); Trombley v. Bellows Falls Union High Sch. Dist. No. 27, 160 Vt. 101, 106, 624 A.2d 857,
861 (1993) (interpreting Public Records Act using traditional canons of statutory construction, a
“similar [approach] to that for open meeting law cases”). Our goal is to effectuate the Legislature’s
intent. Stowell, 2007 VT 46, ¶ 9. To do so, we first look to the plain language of the statute and,
if the meaning is clear, enforce the statute according to its terms. Id. If the language is ambiguous,
as we find it to be here, we seek to determine Legislative intent by “consider[ing] the entire statute,
including its subject matter, effects and consequences, as well as the reason and spirit of the law.”
Id. (quotation omitted). “Provisions that are part of the same statutory scheme must be read in
context and the entire statutory scheme read” together to ascertain the legislative intention from
the whole of the enactments. In re Grievance of Danforth, 174 Vt. 231, 238, 812 A.2d 845, 851
(2002); see also Rutland Herald v. City of Rutland, 2012 VT 26, ¶ 24, 191 Vt. 387, 48 A.3d 568
(stating legislative intent is derived from consideration, not only of particular statutory language,
but also from entire enactment, its reason, purpose, and consequences).
Committee’s complaint for declaratory judgment regarding the scope of the Open Meeting Law
provisions, thus we do not owe deference to the VLRB’s holding in Cabot. As noted above, supra,
¶ 10, while there may be instances when the VLRB considers the Open Meeting Law in the context
of a labor dispute, the Open Meeting Law has the potential for application in numerous
circumstances not involving labor relations. Thus, we would not afford deference to the VLRB’s
interpretation of the statute when the underlying claim does not lie within the VLRB’s particular
area of expertise, as is the case here. Compare 21 V.S.A. § 1727(a) (outlining statutory scope of
VLRB’s area of expertise as “[t]he Board may prevent any person from engaging in any unfair
labor practice”), with Rodriguez v. Pallito, 2014 VT 18, ¶ 18, 195 Vt. 612, 93 A.3d 102 (applying
de novo review when proceedings before Board invoked questions beyond its expertise), Vt. St.
Emps. Ass’n v. State, 2009 VT 21, ¶ 19, 185 Vt. 363, 971 A.2d 641 (explaining that Court only
owes “substantial deference to the board in decisions that lie within its area of expertise”).
9
¶ 15. The plain language of the Open Meeting Law is ambiguous as to whether
“meetings” include collective bargaining negotiations between Committee and Association
because the law lacks clarity on whether a gathering for the specific purpose of engaging in labor
negotiations falls within the statutory definition of a “meeting.” The Open Meeting Law defines
“meeting” as “a gathering of a quorum of the members of a public body for the purpose of
discussing the business of the public body . . . or for the purpose of taking action.” 1 V.S.A.
§ 310(2) (emphasis added). The Legislature elected to define “meetings” in the context of the
Open Meeting Law, understanding that gatherings of a public body differ from meetings between
individuals or private entities because public bodies are accountable to the general public. 1 V.S.A.
§ 311(a) (“[T]he legislature finds and declares that public commissions, boards, and councils and
other public agencies in this State exist to aid in the conduct of the people's business and are
accountable to them . . . .” (emphases added)). Yet, looking at § 310(2) in isolation, the
Legislature made no mention of negotiations and gave no instruction as to whether it intended
negotiation sessions between a school-board-designated committee and a teachers’ association to
be “meetings.”
¶ 16. Despite this lack of clarity, the language of 1 V.S.A. § 310(2) suggests the
negotiations here are not “meetings” because (1) the Legislature chose not to include
“negotiations” in the definition, and (2) the statutory language implies “meetings” are intended for
unilateral Committee action, not bilateral negotiations. First, 1 V.S.A. § 310(2) defines a
“meeting” as a gathering for the purpose of “discussing”; the Legislature did not include meetings
for the purpose of “negotiating” in the definition. The Legislature has distinguished the same
terms at issue here—“meeting,” “discussing,” and “negotiating”—in other statutory provisions,7
7
The Labor Relations for Teachers and Administrators Act, states that “[p]rofessional
negotiations” can encompass a variety of interactions, including “meeting, conferring, consulting,
discussing and negotiating.” 16 V.S.A. § 1981(2) (emphases added).
10
suggesting that those terms are distinct, Trombley, 160 Vt. at 104, 624 A.2d at 860 (1993)
(explaining this Court will not construe language “in a way that renders a significant part of it pure
surplusage”), and that the Legislature will intentionally reference negotiations in statutory
language when necessary. Id. (quotation omitted). It conspicuously failed to reference
“negotiations” when defining “meeting” under § 310(2), indicating “meeting” and “negotiating”
are not interchangeable terms for the purposes of collective bargaining between Committee and
Association.
¶ 17. Second, a public body gathering for the purpose of “discussing the business of the
public body,” 1 V.S.A. § 310(2), implies unilateral committee action—a committee gathering to
manage its own affairs. In the context of collective bargaining negotiations, this could include
preparing for negotiations, soliciting public comment on negotiations, developing bargaining
proposals, and discussing negotiation strategy. Those gatherings of the public body would be
“meetings” subject to the Open Meeting Law and generally open to the public; the public body
would be able to move into executive session upon making the necessary finding of a substantial
disadvantage to the public body or person involved. 1 V.S.A. § 313(a)(1). In contrast, gathering
for the purpose of “negotiating” a bilateral agreement between a public body and an independent
and equal bargaining partner requires joint participation in the proceedings by both the members
of the public body and the members of the bargaining partner. See, e.g., Saratoga Cty v. Newman,
476 N.Y.S.2d 1020, 1022 (Sup. Ct. 1984) (“[T]here is sufficient evidence that a collective
bargaining session involves much more than just a meeting of a committee of a public body since
it is absolutely necessary for negotiators for the employees’ representatives to participate in the
meeting.”). A public body meeting to discuss its own business is different from bilateral
negotiations because a “meeting” under § 310(2) does not necessitate another party’s involvement
and contribution. The absence of any indication in the Open Meeting Law that bilateral labor
11
negotiations were intended to be “meetings” under the Open Meeting Law creates an ambiguity
that we must resolve.
¶ 18. When the plain language of the statute is ambiguous, we look to the entire statutory
scheme to determine legislative intent. In re Grievance of Danforth, 174 Vt. at 238, 812 A.2d at
851. First, we examine other provisions of the Open Meeting Law to aid us in defining “meeting.”
The Open Meeting Law is entitled to a “liberal construction,” and exemptions to the Open Meeting
Law must be strictly construed. See Trombley, 160 Vt. at 104, 624 A.2d at 860 (referencing other
jurisdictions where similar provisions are entitled to liberal construction). Here, the Open Meeting
Law does not specifically reference collective bargaining negotiations between a school board
committee and a teachers’ association, but reading the provisions in context supports the
interpretation that these negotiations are not “meetings.”
¶ 19. Generally, the Open Meeting Law requires that public body meetings remain open
to the public. 1 V.S.A. § 312(a)(1) (“All meetings of a public body are declared to be open to the
public at all times, except as provided in section 313 of this title.”). There are several exceptions
to this principle. See 1 V.S.A. § 313(a)(1)(A)-(F) (listing exemptions to general open meeting
provisions under 1 V.S.A. § 312(a)). Relevant here, section 313(a)(1)(A) and (B) provide that a
public body may hold an executive session at a meeting covered by the Open Meeting Law to
consider “contracts” and “labor relations agreements with employees,” but only after “making a
specific finding that premature general public knowledge [of the matter] would clearly place the
public body or a person involved at a substantial disadvantage.” Id. § 313(a)(1)(A)-(B).8 Section
8
In 2014, the Legislature amended the Open Meeting Law, 1 V.S.A. § 313(a)(1), to clarify
when a meeting could be held in executive session. The criteria for determining when executive
session is appropriate changed from “where premature general public knowledge would clearly
place the public body or a person involved at a substantial disadvantage,” to “after making a
specific finding that premature general public knowledge would clearly place the public body or a
person involved at a substantial disadvantage.” 2013, No. 143 (Adj. Sess.), § 313(a)(1). This
change does not involve the definition of “meeting” under the Open Meeting Law, and therefore
does not impact our analysis regarding whether a negotiation is a “meeting” here.
12
313(b) further states: “Attendance in executive session shall be limited to members of the public
body, and, in the discretion of the public body, . . . persons who are subjects of the discussion or
whose information is needed.” Id. § 313(b) (emphasis added).
¶ 20. There are at least two issues with incorporating the negotiations at hand into the
term “meetings” under these Open Meeting Law provisions. First, construing § 313 strictly,
because negotiations between a school board committee and teachers’ association are not expressly
listed in the Open Meeting Law exemptions, if these negotiations are meetings, all such sessions
would be required to occur in public pursuant to § 312(a), absent the required finding of substantial
disadvantage in § 313(a)(1). Considering the sensitive nature of certain negotiation topics—such
as references to individual employees or private information regarding specific personnel—we
find it unlikely the Legislature chose not to provide a mechanism for a committee and a teacher’s
association to negotiate privately in these instances, indicating negotiations are not “meetings.”9
On the other hand, it would have been a simple enough matter to have specifically included
“negotiations” within the definition of “meetings” if that is what the Legislature intended.
¶ 21. Second, labor negotiations require joint participation from parties in equal
bargaining positions. See e.g. Saratoga Cty., 476 N.Y.S.2d at 1022 (discussing importance of joint
participation in collective bargaining agreements); 16 V.S.A. § 2001 (requiring “negotiations
9
In § 313(a)(2), the Legislature included language to exclude certain types of negotiations
from the Open Meeting Law’s general provisions. While § 313(a)(1)(A) and (B) enable a public
body to enter executive session to “consider”—not negotiate—“contracts” and “labor relations
agreements” when one party would be put at a substantial disadvantage, § 313(a)(2) allows a
public body to enter executive session to consider “negotiating or securing” real estate purchase
or lease options. If the Legislature envisioned the Open Meeting Law applying to collective
bargaining negotiations between an employer and an association, it likely would have included
language, like it did in § 313(a)(2), to enable the parties to negotiate in executive session under
certain situations other than when the public body makes a unilateral finding that one party would
be placed at a substantial disadvantage. The absence of such language suggests that the Legislature
did not intend negotiation sessions to be treated as “meetings” under the Open Meeting Law in the
first instance.
13
councils of the school board” and “recognized teachers’ . . . organization” to “meet together at
reasonable times, and upon request of either party” to negotiate in good faith); 16 V.S.A. § 2007
(delegating authority to “either party” to request unresolved issues be submitted to factfinding
committee). If negotiations are construed as “meetings” under § 310(2), then § 313(a)(1)
unquestionably assigns unilateral authority to Committee to determine when executive sessions
occur and who may attend, upending the intended parity of bilateral negotiations contemplated in
16 V.S.A. §§ 2001 and 2007. 1 V.S.A. § 313(a)(1) (explaining that public body can
“consider . . . labor relations agreements with employees” during executive session when public
body finds one party would be put at substantial disadvantage). This would give Committee
unilateral discretion to determine whether either party is placed at a substantial disadvantage, 1
V.S.A. § 313(a)(1), and to limit executive session attendees, id. § 313(b). There is no evidence
the Legislature intended to grant Committee full authority to decide in the first instance whether
and when bargaining is to take place in executive session, and, in that event, who may attend on
behalf of a teachers’ association—a construction that potentially impacts party dynamics in the
collective bargaining process.10
¶ 22. The Legislature omitted any reference to “negotiations” from the Open Meeting
Law provisions, §§ 310-14; there is no evidence it intended to mandate that collective bargaining
negotiations between Committee and Association occur in public, or to allow Committee unilateral
exercise of the executive session function during these sessions. The absence of such legislative
instruction supports the conclusion that these negotiations are not “meetings” under 1 V.S.A.
§ 310(2).
10
Our resolution of the ambiguity in the Open Meeting Law does not turn on whether one
side or the other may ultimately be benefitted from negotiating in open session. We recognize that
even under the Committee’s reading of the statute, it would be required not to engage in unfair
labor practices. Nonetheless, for the reasons noted above, the Committee’s construction of the
Open Meeting Law would shift the balance between school board committees and teachers’
associations.
14
¶ 23. Further support for the position that negotiations are not meetings can be found in
parallel statutes that complement the Open Meeting Law: the Public Records Act and the Labor
Relations for Teachers and Administrators Act. Harmonizing the Open Meeting Law with these
provisions demonstrates that, while the Legislature intended to encourage accountability on the
part of public bodies, negotiation sessions between school board committees and teachers’
associations were not anticipated as “meetings” under the Open Meeting Law. Hartford Bd. of
Libr. Tr. v. Town of Hartford, 174 Vt. 598, 599, 816 A.2d 512, 515 (2002) (mem.) (“When
interpreting independent statutory schemes with overlapping subject matters, we prefer to first
look for a construction that will harmonize the seemingly-inconsistent statutes.” (quotation
omitted)).
¶ 24. The Public Records Act was enacted to “provide for free and open examination of
records consistent with Chapter I, Article 6 of the Vermont Constitution.” 1 V.S.A. § 315(a). The
Act safeguards public access to public documents and records; exceptions to this policy are strictly
construed. Trombley, 160 Vt. at 106-07, 624 A.2d at 860. Section 317(c) of the Public Records
Act specifies exceptions to the Act and identifies public records that are exempt from “public
inspection and copying.” Id. § 317(c). Relevant to this discussion, “[r]ecords relating specifically
to negotiation of contracts including collective bargaining agreements with public employees,” are
exempt from such disclosure. Id. § 317(c)(15). Thus, even under a strict construction, the
Legislature sought to afford special protection for records related to collective bargaining
negotiations between public agencies and public employees.
¶ 25. Here, a public body, Committee, is engaging in collective bargaining negotiations
with an association of public employees, Association. Records of these negotiations would be
inaccessible for public review under section 317(c)(15). Because the Legislature protected records
of these negotiations from public access under the Public Records Act, opening these same
sessions to the public as “meetings” under the Open Meeting Law directly contradicts this
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Legislative scheme. It would make little sense that a written record, such as minutes of a
negotiating session, is exempt from public disclosure but the meeting itself is open to the public.
Exempting collective bargaining negotiations from the scope of “meetings” under the Open
Meeting Law brings harmony to these provisions, and offers a more consistent interpretation of
the Legislature’s intent. Hartford Bd. of Libr. Tr., 174 Vt. at 599, 816 A.2d at 515. Thus, the
Public Records Act further supports the conclusion that labor negotiations between a public body
and its employees are not “meetings” under the Open Meeting Law.11
¶ 26. Provisions within the Labor Relations for Teachers and Administrators Act also
support an interpretation that labor negotiations between Committee and Association are not
“meetings.” Section 2001 of the Labor Relations for Teacher and Administrators Act states: “The
negotiations councils of the school board and of the recognized teachers’ or administrators’
organization shall meet together at reasonable times, upon request of either party, and shall
negotiate in good faith on all matters properly before them under the provisions of this chapter.”
16 V.S.A. § 2001. This language establishes that teachers’ associations are an indispensable party
to collective bargaining negotiations with the school board negotiations committee. Section 2009
further provides: “The negotiations councils for school boards and for teachers’ and
administrators’ organizations are empowered to delegate in whole or in part the responsibility for
negotiation of the collective agreement to any persons they may choose.” Id. § 2009. Thus, under
11
Association contends that, under the Public Records Act, parties to a public meeting can
consider documents to which the Act’s exemptions may ultimately attach without public disclosure
because exemptions under the Public Records Act are separate from the Open Meeting Law
provisions. 232511 Investments, Ltd. v. Town of Stowe Dev. Review Bd., 2005 VT 59, ¶¶ 4-5,
178 Vt. 590, 878 A.2d 282 (mem.). Under Association’s reconciliation of these provisions,
negotiation proposals would only lose protection under the Act once they were exchanged between
the parties in the context of negotiations. While this reading of the Act might also “harmonize”
the Open Meeting Law and the Public Records Act, we cannot assume the Legislature intended
such a construction absent additional statutory language in the Public Records Act exemption
provisions.
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the Act, Association is empowered to delegate bargaining power to a “person” of its choosing.12
Yet, under the Open Meeting Law, Committee has unilateral discretion to determine whether an
executive session occurs and who may attend; Committee has the authority, further, to exclude
any party or person of its choosing during executive session. 1 V.S.A. § 313(a)(1), (b). These
competing powers can only coexist with the consent of the public body; an invitation it can
withdraw at any time. We find it implausible that the Legislature intended these express
protections in the Labor Relations for Teachers and Administrators Act provisions to ring hollow
in the context of collective bargaining negotiations between a school board committee and
teachers’ association.
¶ 27. Finally, 16 V.S.A. § 2007(a) provides that if there is a continuing disagreement
between the school board committee and the teachers’ association following negotiations, then
“either party may, after negotiation, . . . request that . . . unresolved issues be submitted to a fact-
finding committee.” 16 V.S.A. § 2007(a). The fact-finding committee then issues a report, which
“shall be made public . . . if the issues in dispute have not been resolved within ten days of the
delivery of the report.” 16 V.S.A. § 2007(d). This language implies that negotiations between the
school board committee and the teachers’ association are private; issues within the negotiations
only become public if the parties cannot reach a resolution within ten days of delivery of the
factfinder’s report. Given this emphasis on confidentiality, even at the close of negotiations, it is
reasonable to assume the Legislature intended this protection to extend to earlier phases of
negotiation—when the terms are much less developed, and the parties may be further apart in their
negotiations and becoming familiar with sensitive issues. The ten-days-to-disclosure window
makes little sense if the earlier aspects of negotiation have been conducted in public. In contrast,
12
The parties dispute, and we do not determine, whether construing collective bargaining
negotiations as “meetings” enable a public body to avoid the Open Meeting Law by delegating its
responsibility for negotiation of the agreement to a private person or entity, pursuant to § 2009.
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“meetings” under the Open Meeting Law are open to the public unless premature general public
knowledge would place one of the parties or persons involved at a “substantial disadvantage.” 1
V.S.A. § 313(a)(1). Considering legislative direction that negotiations at the factfinding stage
should be kept private under 16 V.S.A. § 2007, we cannot find that the Legislature also intended
negotiation sessions earlier in the process to be “meetings” open to the public under the Open
Meeting Law.
¶ 28. In summary, reading the Open Meeting Law, the Public Records Act, and the Labor
Relations for Teachers and Administrators Act in concert shows: (1) the act of “negotiating” is
distinct from “meeting” or “discussing”; (2) the Legislature intended negotiation sessions between
school board committees and teachers’ associations to be conducted on a level playing field—an
intent that is incompatible with the unilateral authority and responsibility Committee’s
construction of the Open Meeting Law would vest in Committee; and (3) the Legislature did not
intend to compel public airing of ongoing collective bargaining negotiations.13 In the absence of
clear statutory expression, we apply a construction of the Open Meeting Law that also aligns with
the statutory scheme created by the Legislature through the Public Records Act and the Labor
Relations for Teachers and Administrators Act by finding that “negotiations” between Committee
and Association are not “meetings” under the Open Meetings Law.
¶ 29. Lastly, our conclusion, based on the statutory analysis outlined above, is further
strengthened by (1) the customary practice between school board committees and teachers’
associations to hold negotiation sessions in private, and (2) this Court’s past caselaw.
¶ 30. First, it is not disputed that Vermont school board councils and teachers’
associations have, until recently, conducted labor negotiations in private, indicating that neither
13
We emphasize that nothing in our decision should be construed to preclude parties from
agreeing to conduct negotiations in public, subject to whatever exceptions they may mutually
adopt. We hold only that the Open Meeting Law does not apply to negotiation sessions.
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side felt these negotiations were “meetings” under the Open Meeting Law. We are hard-pressed
to believe that the experienced lawyers engaged in labor negotiations of this type overlooked this
issue until recently. In cases where the parties have “a long-standing practical construction” of a
statute they are affected by, that understanding “should be given considerable interpretative
weight.” See Saratoga Cty., 476 N.Y.S.2d at 1022 (holding public employers’ and employee
organizations’ “long-standing practice” that negotiating sessions were not covered by Open
Meetings Law should be given “considerable interpretive weight”).
¶ 31. The VLRB has long recognized that it is “accepted practice” within the public
sector that negotiations are conducted in private. See U.E. Local 267 v. Univ. of Vt., 21 VLRB
106, 109 (1998), http://vlrb.vermont.gov/decisions/download [https://perma.cc/678X-2AJT]
(stating it is “accepted practice in the Vermont public sector” that negotiations are “conducted in
private”); Sw. Vt. Edu. Ass’n, Vt. NEA v. Shaftsbury Town Bd. of Sch. Dirs. v., 10 VLRB 124,
138-39 (1987) http://vlrb.vermont.gov/decisions/download [https://perma.cc/678X-2AJT]
(finding association failed to bargain in good faith when it unilaterally publicized press release
regarding negotiations contrary to prior agreement, constituting unfair practice violation).
Meetings under the Open Meeting Law occur in public, absent an applicable exemption under 1
V.S.A. § 313. Construing negotiations as “meetings” under the Open Meeting Law contradicts
the previously “accepted practice” that negotiations are conducted in private, without any
meaningful amendment to the Open Meeting Law giving rise to such a change. Therefore, the
historical practice that school board labor negotiations with teachers were held in closed sessions
gives interpretative weight to our finding that negotiations between Committee and Association
are not “meetings” under the Open Meeting Law.
¶ 32. Second, this Court’s ruling in Blum v. Friedman, which declined to consider
whether contract “negotiations” between a town and a municipal service provider were “meetings”
under the Open Meeting Law, does not undermine our conclusion here. 172 Vt. at 623 n.2, 682
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A.2d at 1206. In Blum a town resident sought to attend contract negotiations between the Town
of Winhall and The Stratton Corporation, a municipal service provider which provided services to
local home owners, including “road maintenance and improvements under a contract negotiated
with the town.” Id. at 622-23, 682 A.2d at 1205. The resident asserted that the superior court
erred in excluding the general public from the contract negotiations between the Town and the
Corporation under the Open Meeting Law exception in 1 V.S.A. § 313(a)(1). On appeal, this Court
noted in a footnote:
The superior court assumed that the negotiating sessions are
meetings for purposes of the act . . . and neither party has contested
that assumption. Similarly, the parties agree that § 313(a)(1)
applies, although the “meetings” are negotiating sessions in which
the other party to the contract is present. We rely on both
assumptions without examining their accuracy.
Id. at 623 n.2, 682 A.2d at 1206 (emphasis added). By adding this note, rather than validating the
assumptions made by the court and the parties, the Court expressly reserved judgment on the
question of whether “meetings” under the Open Meeting Law include bilateral negotiations.
¶ 33. With all of these considerations in mind, we hold that collective bargaining labor
negotiations between Committee and Association, are not “meetings” under the Open Meeting
Law. Because these negotiations fall outside the scope of the Open Meeting Law, it is not
necessary for us to consider whether either party is placed at a substantial disadvantage in open
forum or whether either party engaged in unfair labor practices.
The dismissal for lack of subject matter jurisdiction is reversed. The matter is remanded
with instruction to the court to enter a declaration that the Open Meeting Law does not apply to
labor negotiations between a district school board or its designee and the employees of the district.
FOR THE COURT:
Associate Justice
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