|Local officials are easy targets for those seeking to
criticize the way government does business. Many times people who serve in local office
are those with business ties to the community. In some towns, everyone who appears before
a board is known to every member of the body. This creates appearances of conflict of
interest at every meeting, and a good deal of confusion when local officials try to figure
out how to deal with such conflicts.
Consider these examples: a member of the planning
commission switches sides at the table to present a site plan for a commercial project
hes planning. A select board member appeals her grand list. The town clerk wants to
hire his daughter to work for him during the summer. The person who always gets the
contract for gravel is underbid by an out-of-town competitor nobody really knows. A zoning
administrator needs a zoning permit for her new garage.
In each of these situations, local officials are thrown into a quandary. How should
they act? The laws governing public officials concentrate mostly on what they have to do,
not on how they are expected to do it. There are open meeting laws, of course, and access
to public records laws, but rules of conduct are not part of the municipal code. Although
a handful of towns and villages have adopted ethics policies, most of Vermont gets by on a
sense of whats right at the time, without any overriding direction on conduct.
This report offers several ideas to address some of the problems facing local
officials. It begins by recognizing that the laws we have in place are generally good for
what they attempt to do, but that there is a dearth of good law on the way local officials
should behave while holding public office.
1. The Law We Have.
School districts have the most comprehensive laws on conflict of interest. All
purchases of goods over $5,000 must be put out to public bid. No member of a board may
vote on any issue involving a direct benefit to himself or herself. Towns have no similar
statutes to guide them.
Officials acting in a quasi-judicial capacity are also governed by a law on conflict of
interest. No one with a direct or personal interest in the outcome of a decision may
participate in that case. The law even proscribes hearing a case involving near relatives,
by blood or marriage, and defines where to draw the line. 12 V.S.A. § 61. This law
applies to zoning boards, planning commissions, boards of civil authority, and select
boards when they act in a quasi-judicial capacity.
There are several laws limiting dual office holding. See 17 V.S.A. § 2647; 24 V.S.A.
§ 1622. Select board members on planning commissions have no voting authority. 24 V.S.A.
§ 4322. The Municipal Administrative Procedure Act, which is available for use by
Development Review Boards, contains a section on conflict of interest. Thats about
it for statutes.
The Vermont Constitution, of course, applies to every public office. It declares all
local (as well as state) officials, the trustees and servants of the people, and holds
them, at all times, in a legal way, accountable to the people. Vt. Const. c. 1, Art. 7.
The common law echoes this idea. In 1877, the Vermont Supreme Court ruled that select
board members who acquire a "a pecuniary interest in any claim allowed, whereby they
reaped a profit to themselves, the town would be entitled to the benefit of such profit,
upon the familiar doctrine that applies to agents, trustees, administrators, and all other
persons who stand in fiduciary relations to others, that such persons shall make no profit
to themselves against those for whom they act." Davenport v. Town of Johnson,
49 Vt. 403, 407 (1877).
From this wooden language in an old case there is a rule for conduct of all public
officers. Any profit made while serving, which the town could earn, through the action of
an officer, belongs to that town, and not the officer.
This does not mean that no one may bid on a town contract, but if a benefit accrued to
a public officer on account of his or her position, that benefit would belong to the town.
2. What We Lack.
Vermont does not have laws that define what constitutes a conflict of interest for local
public officials. General laws directing local officials in a code of conduct are
nonexistent. While the legislature has considered such legislation frequently in the past,
there is still a general belief that Vermont towns should not be dictated to by the state
in this matter.
Perhaps such decisions should be made locally. How then can Vermont law encourage and
enable the adoption of such local laws? The answer is very simple: by providing a
mechanism for the adoption of ethics policies in towns that want them, and good models to
serve as the foundation for local codes of conduct.
The state also needs to look at several procedural problems. Suppose a majority of the
members of a board has a conflict of interest. Who makes the decision? Suppose some go
south for the winter. This should not be a problem. In either case, the remaining board
members should be able to appoint temporary, alternate members to replace those who have
a. Conflict of Interest. Vermont law ought to provide a general
enabling statute defining what constitutes a conflict of interest, which municipalities
who wish to adopt ethics policies or ordinances may use. The definition ought to include
at least the following: that anyone with a personal or financial interest in the outcome
of any decision that would affect an officers ability to render a fair and impartial
judgment or decision ought not to participate in the decision. Towns should be free to
adopt their own additional features for local ordinances, including further defining when
a personal or financial interest would affect an officers ability to render a fair
and impartial decision. The law should be changed to allow the decision on whether a
member has a conflict to be made by a majority of a remaining members, as well as the
individual member. Beyond that, Vermont law should leave the particulars to local ethics
ordinances or policies.
b. Ethics Ordinances. The Village of Essex Junction and the Town of
Colchester are among the communities who have drafted their own ethics policies. These
policies are strong endorsements of the idea that the best laws come from those who are
closest to the problem. Rather than telling towns what policies they should have, state
law should authorize towns to adopt ethics ordinances either by direct action of the
legislative body or through a petitioning process.
This would take the form of three short legislative changes, first, by
adding a new subsection (20) to 24 V.S.A. § 2291, to read that a town, city or village
shall have, among its powers, the power to "define, regulate and prohibit conflicts
of interest of local officials by ordinance." Secondly, to authorize towns to include
conflict of interest and other ethical directions to town officers in their personnel
policies. 24 V.S.A. § 1121(a).
A change is also required in 24 V.S.A. § 1972, by adding a new
subsection (d) to read, "Voters of a municipality may also file a petition proposing
the adoption, amendment, or repeal of any ethics ordinance, by a petition signed by at
least five percent of the checklist. The method of adopting the ordinance described in
this chapter shall otherwise be followed." This change would allow towns where voters
recognize the need for an ethics ordinance to require their town officials to be bound by
it, even if the officials are unwilling to propose the same themselves. Once an ordinance
is adopted, it should be available for amendment as any local legislation.
This idea has an added benefit of enfranchising voters to propose and
adopt local ordinances. Without this authority, voters have no direct authority to propose
changes they feel are needed.
c. Secretarys Role. The Secretary of States office ought to
include among its services a compilation of examples of ethics policies from the various
towns. It should offer educational programs and pamphlets relating to conflicts of
interest and other ethical challenges, in order to sensitize everybody to the impact even
appearances of conflict have on public trust of government.
d. Alternates for Every Office. When two or more members of a board or
commission have a conflict, there is an impact on the ability of these bodies to function.
There ought to be a general state law authorizing boards to appoint temporary alternates
for appointive positions, to be chosen by the remaining members of the board (or the
legislative body) for the purpose of ensuring that every decision has a full quorum of
members to decide it. The law might also provide for the election of alternates to
elective positions, such as the select board. This could apply whenever a member must step
down or is unavailable for any purpose. It may inspire people to serve in local office.
e. Oaths for Every Officer. It must be an oversight that not all public
officials have to take the oath of office, swearing or affirming that:
. . .you will be true and faithful to the State of Vermont and the
town, and that you will not, directly or indirectly, do any act or thing injurious to the
Constitution or Government thereof. [That] you do solemnly swear or affirm that you will
faithfully execute the office of ______ for the Town of __________, and will therein do
equal right and justice to all men and women, to the best of your judgment and ability,
according to law.
Vt. Const. c. 2, § 56.
But the present law dictates that only clerks, the select board,
constables, listers, grand jurors, fence viewers, and the school board take the oaths. Why
not treasurers, auditors, moderators, zoning board members, planning commissioners, zoning
administrators, town managers, and every other local office?
What difference will it make? Read the words again, and think about them. Thats
what every public officer will do for every term he or she is elected or appointed. It