According to the lawsuit, a formal records request was made to town manager Scott Murphy on September 13, 2013, “for all documents and records since September 1, 2011, regarding the operation of the town of Wilmington zoning office, or Tropical Storm Irene, or any actions of the zoning administrator.”
Herrick claims that these records are important in ascertaining whether the planning commission acted outside its authority during a recommendation process in January 2013 that saw her reappointment as zoning administrator put on hold. The lawsuit also said the records were sought for reviewing the selectboard’s actions in soliciting feedback as it came about the decision to not reappoint her as zoning administrator on January 23, 2013. Under Vermont statute, a town’s planning commission has the authority to nominate and recommend an individual for the position of zoning administrator.
Herrick, who had been zoning admistrator for six years, was reappointed as acting zoning administrator rather than to the full-time position by the selectboard on January 23, 2013. According to the court documents, Herrick learned that prior to January 15, 2013, when the planning commission made their recommendation, the commission had “solicited information, comments, and feedback from Wilmington residents regarding the zoning administrator’s job performance, including actions and information given by the zoning administrator relative to permit requests after the devastation of Tropical Storm Irene.” Herrick claims she was given no opportunity for meaningful responses to the board or commission’s concerns.
The selectboard eventually appointed Herrick zoning administrator by a vote of 4-1 on July 3, 2013, with the dissenting vote coming from planning commission liaison Susie Haughwout.
According to court documents, Herrick says that Murphy only partially responded to her request, and told her that she would have to seek out and request records from the individual planning commission members past and present. Herrick claims she did not receive full responses from commission members and in some cases was provided no answer at all.
The suit also alleges that a number of the documents Herrick requested may be housed at the office of town attorney Bob Fisher. Herrick is also claiming knowledge that other records do exist, and she has not been allowed to see them. “I have requested to see some original documents from the town and have not been provided access to those documents,” said Herrick, when reached for comment. “I’ve been very surprised it has gone this far because my personal experience with town government is that it’s usually more open.”
According to the lawsuit, a failure to provide documents pertaining to her job performance is a violation of Vermont statute 317(c)(7), which reads: “Personal documents relating to an individual, including information maintained to hire, evaluate, promote, or discipline any employee of a public agency, shall be made available to that individual employee or his or her designated representative.”
Herrick’s lawsuit also claims that the failure of the town to produce public documents violates a statute that says the custodian of public record shall promptly produce the record for inspection. “The town manager of Wilmington is the custodian of said records,” says court documents. “His (Murphy’s) refusal to compile and produce the requested documents amounts to an impermissible denial under the statute. No denial was afforded in writing as required, nor was any date and time afforded for the petitioner to inspect the records.”
The lawsuit claims that this is a violation of VSA 318 which states that the custodian of a public record shall promptly produce the record for inspection. As town manager, Murphy is the custodian of the records, but Vermont Deputy Secretary of State Brain Leven says that a town may require that a public records request be made to each individual agency. This is often seen in towns that do not have a town manager, however, the planning commission is a directly appointed subcommittee of the selectboard. The town website states: “ The selectboard serves as the town’s chief elected legislative body and the town manager acts as the municipality’s chief administrative officer. Under this system, the selectboard sets local policy, while the manager implements policy and oversees the day-to-day operations of town government.”
According to a state statute in Chapter 117, Title 24, a planning commission shall keep a record of its resolutions and transactions, which shall be maintained as a public record.
VSA 318 also states that if a record is in storage, the records custodian must schedule a date within one week’s time for examination. The custodian must also state in writing if he or she believes a document to be exempt from public viewing, and the record is then inspected. If a record does not exist, the custodian must also provide this fact in writing. Because Murphy did not provide a written denial of records sought and did not invoke a need for additional time beyond the allotted statutory time limit for compliance, the lawsuit is claiming wrongdoing.
According to the court documents, the suit is asking for an injunction to stop the town from withholding public documents, as well as a mandate stating all documents be made available within 10 days, and costs and attorney fees.
Murphy could not comment on the specifics of the case, saying it is a personnel matter for the town. Town attorney Fisher did not return phone calls as of publication time.