By Megan A. LaChance, Esq.
Municipal meetings are where Vermont's local democracy does its most important work: adopting budgets, setting policy, hiring key staff, and responding to residents' day-to-day needs. Vermont's Open Meeting Law (1 V.S.A. §§ 310–314) exists to ensure those decisions are made transparently—so the public can observe, understand, and hold officials accountable.
For selectboards, school boards, commissions, and the staff who support them, the Open Meeting Law is both a roadmap and a risk-management tool. Compliance is not a mere technicality. Missteps can erode public confidence, invite complaints and litigation, and—most consequentially—lead to challenges that may jeopardize actions taken. So how can municipal bodies protect themselves from complaints and ensure public transparency? The good news is that the grey areas, where the most common pitfalls are found, are avoidable with clear procedures, disciplined communication practices, and consistent documentation.
Pitfall 1: The Executive Session Trap
Executive sessions are among the most common points of friction under Vermont's Open Meeting Law. They are also among the easiest areas to get wrong—not because executive sessions are inherently improper, but because the statute requires a careful, public process before a body may exclude the public.
To enter into executive session correctly, a public body should follow a clear sequence in open session. First, convene the meeting in open session with a properly warned agenda and a quorum. When it's time to enter into executive session, make a motion that states the specific statutory reason for the executive session and includes the required finding that discussion in open session would “clearly place the public body or a person involved at a substantial disadvantage.” 1 V.S.A. § 313(a)(1). Next, vote in open session on the motion. The vote to enter into executive session must be made in the affirmative by two-thirds of the members present. Only then can the body move into executive session. The “substantial disadvantage” finding is not a formality. It is a statutory requirement that should be treated as a genuine, case-specific determination—not boilerplate.
Closure is limited: only certain topics qualify
Executive session is not a general “confidential” category. It is available only for the reasons the statute authorizes, which include discussions of contracts, pending litigation, mediations, negotiation of real estate leasing or purchases, discussion of hiring or discipline of employees, and security measures. A complete list of allowable reasons can be found at 1 V.S.A. § 313.
The best practice is to avoid shorthand (“personnel,” “legal,” “sensitive”) in the motion language and instead tie the motion to the specific statutory basis and the particular subject matter to be discussed. For example, a selectboard member could “Make a motion to enter into executive session with the inclusion of the Town Clerk and John Doe, a representative of the National Widget Corporation, for the purpose of discussing a contract with the National Widget Corporation for the purchase of new widgets pursuant to 1 V.S.A. § 313(a)(1)(A) since premature general public knowledge would clearly place the Town and the Corporation at a substantial disadvantage.” Such a motion can be long and quite wordy, so some municipalities may choose to break it up into two separate motions which would then each need to be voted on separately. An example of using two motions to enter executive session would look something like this:
- Selectboard member makes “a motion to find that discussion of a contract between the Town and the National Widget Corporation for the purchase of new widgets would clearly place the Town and Corporation at a substantial disadvantage.”
- The Selectboard then votes on that motion. If there is a two-thirds majority vote in the affirmative, the Selectboard can then move on to consideration of the second motion.
- The second motion, typically made by the same individual as the first motion, would then be “a motion to enter into executive session pursuant to 1 V.S.A. § 313(a)(1)(A) with the inclusion of the Town Clerk and the representative of the National Widget Corporation, John Doe, for the purpose of discussing a contract for the purchase of new widgets.”
- The second motion would then be voted on and executive session entered in the event of an affirmative two-thirds majority vote.
Either way of entering into executive session is acceptable so long as the reason for entering the session is clearly stated and a finding of placing a party at a substantial disadvantage is made.
Remember: executive session is for discussion, not decisions
A frequent misunderstanding is that anything discussed in executive session can also be decided there. As a general rule, boards should assume final action occurs in open session, unless the law clearly authorizes otherwise. Even if the public body makes a decision in executive session, returning to open session for an official public vote is typically the safer and more transparent practice.
Practical tip
If there is uncertainty about whether the topic qualifies, or whether the “substantial disadvantage” standard can be met, pause and narrow the issue. Often, the most defensible approach is to address the matter in open session with careful framing, or limit executive session to the discrete confidential portion.
Pitfall 2: Agenda Specificity and “Other Business”
Agendas are not merely administrative. Under the Open Meeting Law, the agenda is the public's notice of what the body will consider and potentially decide. The specific requirements for setting agendas can be found at 1 V.S.A. § 312(c) & (d).
The problem with vague agenda items
Labels such as “Old Business,” “New Business,” or “Other Business” may be convenient, but they can undermine transparency if they are used to introduce substantive issues without meaningful notice. Vague agendas increase the likelihood that the public is surprised by discussions or decisions they could not reasonably anticipate.
“Discussion” vs. “action”—and the danger of improvised votes
It can be tempting to add an item “because we're all here” or because it feels time-sensitive. But discussing, or especially acting on, matters that were not properly warned can create legal exposure and public frustration, particularly where decisions affect taxes, budgets, land use, employment, or municipal services.
Better agenda drafting: specificity that serves the public
A strong municipal agenda generally does three things:
- Clearly identifies the topic (e.g., “Discussion/possible action: Selectboard response to damaged culvert on Maple Street”).
- Signals the intended scope (discussion only, or discussion and possible action).
- Avoids surprises, particularly on controversial or high-impact matters.
If something truly arises unexpectedly, the more defensible approach is typically to determine whether a special meeting is warranted, post a properly warned agenda, and take action only after the public has meaningful notice.
Pitfall 3: The “Rolling Quorum” and Digital Communication
Vermont's Open Meeting Law applies to any meetings of a public body—not only formal gatherings in a meeting room. Modern communication tools can make it easy to inadvertently conduct municipal business outside a warned meeting.
What is a “rolling quorum”?
A rolling quorum can occur when members communicate in sequence (or in smaller groups) in a way that effectively involves a quorum in discussing public business, without ever gathering all at once. For example:
- Member A emails Members B and C about a policy decision.
- Member B replies to A and C.
- Member C responds with substantive views.
- Over time, a quorum has effectively deliberated, and all without a warned meeting.
Email, texts, and social media: the hidden meeting space
In our current day and age, digital communication is essential for scheduling and distributing information. The risk to public bodies arises when communications shift from one-way information sharing to two-way (or multi-party) deliberation, with members weighing options, advocating positions, or building consensus outside a noticed meeting. In one-way distribution, such as a clerk sending packets or a chair emailing about scheduling logistics, there is generally low risk of a discussion occurring between a quorum of members. But any email, text, or social media thread where there is back-and-forth discussion among members, is where the risk increases since members may be sorely tempted to discuss what the board should do about a particular situation.
Informal gatherings can become meetings
Community events, site visits, and casual conversations are normal in small towns. But when a quorum is present and the discussion turns to municipal business, the gathering can begin to resemble a meeting. If the public would reasonably understand the group to be deliberating public business, boards should proceed cautiously and either change the subject or separate themselves into groups that don't constitute a quorum.
Practical tip
Adopt a shared norm: avoid “reply all” on substantive issues and reserve deliberations for warned meetings. For the extra cautious, sending an email to the members by blind cc'ing them will help prevent any accidental “reply all” situations. If a message begins to invite deliberation between members, a safe response is often: “Let's place this on the agenda for discussion at our next warned meeting.”
Pitfall 4: Public Comment Management
Public comment is central to legitimacy and accountability. It can also derail a meeting if expectations and ground rules are unclear.
The balance: access and efficiency
Vermont's commitment to open government does not require meetings to be unstructured, unlimited, or dominated by a few voices. Boards may adopt and enforce reasonable rules of procedure that treat speakers fairly, keep comment relevant, and preserve the body's ability to complete its work. The specific statute allowing for this is 1 V.S.A. § 312(h).
Practical, legally mindful tools
Boards often manage comment effectively by using reasonable time limits per speaker (applied uniformly), sign-in sheets or an orderly speaker queue, a topic-based structure (e.g., comments tied to agenda items or a designated public comment period), rules against personal attacks, harassment, or disruptive conduct, and clear expectations that the board may listen without debating during comment. If the board intends to respond, it should do so in a way that does not drift into deliberation or action on an un-warned topic.
The chair's role
The chair of the public body sets the tone for the meeting and public comment period(s). A calm, consistent script can help explain to the public when public comment will occur, state time limits and expectations, keep remarks germane to the topic, and enforce rules neutrally.
Pitfall 5: Minutes and Posting Requirements
Every public meeting must have a record. While recordings (audio or audio-visual) have recently become a requirement of Vermont's Open Meeting Law (see 1 V.S.A. § 312(a)(6)), they have not replaced the requirement for written meeting minutes. Strong minutes are one of the simplest ways to demonstrate compliance with Open Meeting Law and reduce disputes.
Posting: treat timelines as a compliance system, not a suggestion
The Open Meeting Law imposes posting requirements for both agendas and minutes. 1 V.S.A. § 312(b), (c), & (d). Treat these as firm deadlines and build a routine that makes timely posting automatic. A few key points to remember: agendas must be posted in advance as required by statute and local practice, and minutes must be posted within five days of the meeting. Even when minutes are labeled “draft,” they should still be timely and sufficiently complete to meet statutory expectations. Once a final version of the minutes becomes available, they should be posted instead of, or in addition to, the previously posted draft minutes. It's generally good practice for public bodies to keep copies of both the draft and final minutes in accordance with the body's retention schedule.
What minutes must capture
Minutes should provide enough detail that a reasonable member of the public can understand what occurred. In order to comply with the requirements of 1 V.S.A. § 312(b)(1) and aid public understanding, minutes should include the date, time, and place of the meeting; members present and absent; motions made and the outcomes of votes; a clear record of actions taken; and when an executive session occurs, the motion and open-session vote to enter it, including the statutory basis stated in the motion. Verbatim transcripts are generally unnecessary unless the public body has chosen that approach as their standard practice. The goal of the minutes for any meeting are accuracy, completeness, and clarity—not exhaustive narration.
Practical tip
Use a standard minutes template and assign a clear responsibility for posting (e.g., the clerk, an assistant, or the board chair). One missed deadline can raise concerns about transparency and statutory compliance and distract from an otherwise well-run meeting.
Proactive Strategies for Compliance
High-functioning boards do not rely on memory or habit. They rely on systems. The best compliance tool is a repeatable routine shared by the chair and the clerk, and ideally written down so the steps can be followed whenever there are changes in leadership.
Quick Checklist for Public Bodies
- Before the meeting
- Chair
- Confirm the agenda provides adequate, specific notice to the public.
- Identify items that may require executive session and confirm the statutory basis.
- Clerk/Support Staff
- Post the agenda as required.
- Ensure meeting location and any remote access details (if applicable) are included.
- Prepare and distribute information packets in a manner that avoids member deliberation outside the meeting.
- Chair
- Opening the meeting
- Chair
- Call the meeting to order.
- Confirm a quorum.
- Follow the agenda.
- Keep discussion tied to warned items.
- Clerk/Support Staff
- Record attendance of members.
- Note the start time.
- Identify exhibits or documents discussed for the record, as appropriate.
- Chair
- Executive session (if applicable)
- Chair
- Make the motion in open session, stating the statutory reason and the “substantial disadvantage” finding.
- Take the vote in open session.
- Limit discussion in executive session to the stated topic.
- Return to open session for action when appropriate.
- Clerk/Support Staff
- Capture the motion language and the vote in the minutes.
- Note the time entering and exiting executive session.
- If present during the executive session, help ensure no unrelated topics are discussed in executive session.
- Chair
- Public comment
- Chair
- Apply rules consistently.
- Manage time.
- Maintain a professional tone.
- Avoid turning comment into deliberation or action on un-warned items.
- Clerk/Support Staff
- Track speakers if helpful.
- Note any board-adopted comment rules referenced.
- Document any recesses or disruptions neutrally.
- Chair
- Actions and votes
- Chair
- State motions clearly.
- Restate what is being voted on following discussion.
- Ensure votes are clear and understandable.
- Clerk/Support Staff
- Record the exact motion language and vote outcome.
- Note abstentions or recusals, if applicable.
- Chair
- Closing
- Chair
- Adjourn clearly.
- If the next meeting is discussed, ensure it will be properly noticed.
- Clerk/Support Staff
- Note the adjournment time.
- Begin drafting minutes promptly.
- Calendar the five-day posting deadline for minutes.
- Chair
- After the meeting
- Chair
- Review draft minutes for clarity and completeness.
- Identify follow-up items for the next agenda.
- Clerk/Support Staff
- Post minutes within five days.
- Retain records consistent with municipal practices.
- Prepare the next agenda with specificity and continuity.
- Chair
Conclusion
Vermont's Open Meeting Law is not designed to make local government harder. It is designed to make it trustworthy. The “grey areas” often arise not from bad intent, but from poorly formed habits—vague agendas, casual email deliberations, rushed executive sessions, or delayed minutes—that quietly undermine transparency and erode public trust.
Public bodies that build a culture of compliance gain more than legal protection. They gain smoother meetings, clearer decision-making, fewer misunderstandings, and stronger public confidence. While having the public's confidence is a good goal for any municipality, in the many small towns throughout Vermont, that confidence is not just a public-relations goal—it is the foundation that makes local governance work.