Office of the Vermont Secretary of State - www.sec.state.vt.us 26 Terrace Street, Montpelier, VT 05609-1101 : Phone 802-828-2363 |
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Voice From the Vault |
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My reading chair at home is surrounded by precariously stacked books that I work through in a rather desultory fashion. Recently, Charles Fish’s In the Land of the Wild Onion surfaced. Mr. Fish traces the course of the Winooski River, pausing here and there to reflect upon geology, stream dynamics, fish and wildlife, waste treatment, history and a host of other fascinating subjects. Two themes that flow through the book are management and professionalization. For example, in the chapter "The Deer Hunter," Fish examines the state’s long term efforts to manage the deer herd within changing contexts such as environmental trends (extensive forests to extensive clear cutting to reforestation), human populations and development, and the cultural role of hunting. Fish writes that "to look at the details and language of a profession is to see the world through different eyes. The only hope for the survival of a healthy deer herd or indeed many wildlife species, plant and animal, is through management broadly understood…[W]ildlife management is based on two disciplines: the biological sciences especially as they contribute to ecology (organisms in their environment) and the theory of management as control…Management as control assumes an instrumental relationship to the thing managed." Fish is not entirely comfortable with the concept of managed "wildlife," conscious of what is being lost. Still, "with an increasing human population and the physical and economic means to plant ourselves in ever more remote areas, management is critical." As Fish talks with Vermont’s botanists, geologists, fluvial geomorphologists, and other experts he is continually struck not only by the importance of trained professionals for understanding our complex world but also by the love these professionals bring to their work. This included the staff of the wastewater treatment plant in Montpelier, all of whom have to be certified in their work. Ron Mercier of the Montpelier plant exemplifies the professionalism and joy that Fish routinely encountered. Mercier felt he was a "lucky" man: "The work is varied. I do computer work, I do drawings, I figure things out and set things up…knowing that you’re really accomplishing something, keeping the river clean." As is often the case I found myself filtering the words before me through my current work at the Vermont State Archives and Records Administration (VSARA). Though it may be a stretch to equate public records with wildlife I found myself comparing records management with deer herd and other management activities highlighted by Fish. Unmanaged records cannot sustain a healthy "herd," as evidenced by our increasing difficulties in responding to public record requests, distinguishing records of short term value from records of long term legal, administrative, or information values, or in finding the resources ("bucks" if you will) to support the professional management/control needed for good recordkeeping. While the state has attempted to manage public records since at least the 1930s, professional skills and management techniques have not kept pace with the changing environments in which records are created and used; nor for that matter with new species of records. Many of the traditional management practices, for example, still reflect paper records and seek to manage voluminous paper files generated by an increasing array of public services. Though the vast majority of government records are born digital, there are still directives in place that require those that have to be kept ten years or longer to be printed out and, in some cases, microfilmed. Over the decades some 4,000 separate record series and 10,000 disposition orders have been approved, but many of them are for agencies and departments that have been abolished or combined into something new (for example Fish and Game is now Fish and Wildlife); some series are inactive; some have become catch alls for new types of records that only loosely, if at all, meet the original series description; etc. This makes it hard to even understand the size of the herd, much less its health. In a few cases established management practices lumber on despite the changing ecologies of government records. Take the humble time report, for example. Every two weeks state employees fill out their timesheets, often electronically, and then print them out so they can be signed. Agency business offices enter the data from the sheets into Finance’s database and then mail the signed timesheets to Finance, which in turn sends the records to VSARA to be filmed. The film is treated as a permanent copy, though access to the records is limited by the need to hand crank through the microfilm reels to find individual time sheets. After filming, the paper copies are sent back to Finance, which in most—but apparently not all—cases mails them back to the original creating agency where they must be retained three years. VSARA is addressing these management issues in a variety of ways. One was the creation of a professional class of record analyst. The record analysts work directly with agencies, through our Targeted Assistance Program (TAP), to update or create more current, standards-based management plans (we are currently talking with Finance about a TAP initiative). The analysts work with agency attorneys, business officers, and IT staff to understand the "natural habitats" in which records are created and used. Similar to the classification systems used by the botanists and other professions visited by Fish, the analysts have developed a common vocabulary so similar activities and the records they create are consistently described across bureaucratic boundaries. We are also working with the Department of Information and Innovation’s Enterprise Project Management Office and the Attorney General’s Office, through a collaborative effort known as iSTART, to develop guidelines from managing digital records as digital records (the most recent example is a best practice for imaging found at: http://vermont-archives.org/records/standards/pdf/ImagingGuideline2008.pdf). We are now exploring a program, similar to Connecticut’s, where agencies can self-certify that they meet these standards and can therefore dispose of the paper records once scanned. Like Mr. Fish, I am impressed by the professionalism and joy of the many agency and VSARA personnel who are making all this possible. Like the flora and fauna of the Winooski Valley, I strongly believe that we will all benefit from the improved flow of government records and information. To keep pace with the work of VSARA please visit our website at: http://vermont-archives.org/records/ A note regarding last month's column: The elections have passed and I am happy to report that Chester A. Arthur did very well. Several readers contacted us after last month’s column and chided me for not including President Arthur among Vermonters who had sought or attained the Oval Office. Mr. Arthur did not make the list (nor did Calvin Coolidge) since I had restricted the list to those who were Vermont residents at the time of their campaign or presidency. President Arthur was a New Yorker at the time of his presidency. Upon re-reading the column I realized that I did not make this point as explicitly as I should have; for that I apologize. Table of Contents | Past Issues of Opinions | Secretary of State's Homepage
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2. Town may vote to permit interest on overdue water/sewer fee. Water or sewer commissioners can charge interest on delinquent payments for water and/or sewer ONLY if the voters of the municipality have approved an article in the warning to collect interest on overdue water or sewer bills. 24 V.S.A. §5151 and 32 V.S.A. §5136. The article must be voted in the same manner as the vote to collect interest on delinquent taxes, and likewise stays in effect until voted otherwise at a subsequent meeting. 3. Petition for office must specify position sought prior to circulation. In municipalities using the Australian ballot system for election of officers, Vermont law requires that candidates clearly indicate on the petition both the office and term length prior to circulating it for signatures. 17 V.S.A. §2681(b). For example, a candidate cannot circulate a petition for selectboard without indicating which term he or she is seeking. It is permissible for a person to circulate two or three different petitions for selectboard, one petition for the one-year seat, one for the remaining year of a three-year term, and one for the three-year term, and then wait until the filing deadline to decide which petition to submit to the town clerk. However, a candidate cannot circulate a petition for signatures without a term length and then add or change the term length after signatures have been obtained. 4. Clerk and treasurer are separate offices, requiring separate petitions and separate votes. Unless you have a town charter that combines the clerk-treasurer office, the town clerk and the town treasurer are separate statutory offices and candidates must circulate a separate petition for each office and each office must be listed as a separate race or contest on your town ballot. We have still had reports that some towns continue to combine these two offices on the ballot even though there is no town charter that combines the offices. 17 V.S.A. § 2646(2) and (3). 5. It is permissible for the same person to be elected to serve as town clerk and treasurer and also as village clerk and treasurer. There is no statutory conflict and in many situations each municipality benefits from the knowledge and experience of the candidate who has already served in one of the positions. 6. Land can be donated to a municipality and acquired by action of the legislative body for any of the purposes set out in 10 V.S.A. §6301. These purposes include to encourage and assist the maintenance of present uses of agricultural, forest, and other undeveloped land and to prevent the accelerated residential and commercial development; to preserve scenic natural resources; to strengthen the base of the recreation industry and to increase employment, income, business, and investment; and to plan for orderly growth. 7. There is no power of attorney or guardianship order that allows a guardian to cast a vote for another person. A family member or authorized person can request that an absentee ballot be sent to another voter, but each voter must vote his or her own ballot. A voter can also ask for assistance from any person of his or her choice, but no one can "substitute" vote for another. 8. There is no limit on who can return a voted absentee ballot. After a voter has voted his or her ballot, placed it into the inside envelope and sealed it, completed the certificate and then placed the inside envelope into the outside envelope, the entire package can be returned to the town clerk’s office by anyone. There are no restrictions on who can deliver the sealed ballot to the clerk because the ballot is sealed in the envelope and could not be tampered with by the deliverer. This includes candidates on the ballot in the election. This applies for town meeting Australian ballot votes as well as the primary and general elections. 9. An absentee ballot that has been returned to the town is considered voted and cannot be taken back nor altered by the voter. Once a voter has returned his or her voted ballot to the town clerk’s office, the ballot cannot be returned to the voter for any reason. A voter cannot change his or her mind and ask for the ballot back. 10. Although justices of the peace have been elected on November 4 th, 2008, the term of office for the newly elected JPs does not begin until February 1, 2009. However, it is a good idea for town clerks to send out a copy of the oath form when you send out the Certificates of Election. A person elected as a JP can take the oath and return the oath of office to the town clerk at any time after receipt of the Certificate of Election, but please remind newly elected justices that no duties, including marriages, of a JP can be performed until February 1, 2009. If you want to perform a marriage before February 1, 2009, you can contact our office to become a temporary officiant for a particular marriage.11. If a JP declines the office after the election there is a vacancy to be filled. In all elections, including justice of the peace, if a candidate is elected and then decides that he or she does not want to serve in the position, this creates a vacancy that must be filled according to statutory procedures. It is never possible to have a person decline an election so that the person receiving the next highest amount of votes becomes the winner. The provisions for filling vacancies for statewide, legislative, and justices are set out in 17 V.S.A.§2623. For local offices, the selectboard makes appointments to vacancies in town offices, and the school board appoints to fill a vacancy on the school board. 24 V.S.A. §963 and 16 V.S.A. §424 and 706l. 12. The time to purge your voter checklist is now! The law requires boards of civil authority to wait until a challenged voter has missed two general elections before it can remove the voter’s name from the checklist when the town believes the voter has moved, after the town has notified the voter pursuant to 17 V.S.A. §2150. This means that the BCA may now purge the names of voters who were sent NOTICES prior to the 2006 general elections, who did not respond to the notice by verifying eligibility to vote. Remember, only those voters who were sent this notice, and who did not respond, and who did not vote in the 2006 and the 2008 general elections may be removed from the checklist by direction of the board of civil authority. Once the BCA directs the clerk to remove those names those voters can be moved to the purged/archived field on the statewide checklist. 13. JP can withdraw from race in the event of a runoff. If a race for JP or local official election ends up with a tie vote, then either one of the candidates that was tied can file a written withdrawal within five days of the election or, if none is filed, then a runoff election must be held pursuant to 17 V.S.A. §2682(e). This was a recent change to the statute so that a town would not need to spend the time and money on a runoff if one of the candidates was willing to withdraw and let the other tied candidate be declared the winner. 14. Citizens may not petition for a town vote to change the classification of a road. If the people who live on a road wish to have it reclassified (usually from class four to class three) they must petition the selectboard to consider the change. The law provides that if at least five percent of a town’s voters and/or landowners petition to have a highway laid out, altered, reclassified, or discontinued the board must begin the statutory process to consider the change. Note that even if the process is started by petition in the first instance, it is within the board’s discretion whether to grant or deny the requested change. The board’s decision can be appealed to the district court. 19 V.S.A. §708. If the board agrees to the request to reclassify, it may order that the petitioners pay the costs of upgrading a class four town highway to the class three town highway standards. 19 V.S.A. § 711. 15. Selectboard considers the public good when deciding whether to reclassify a road. In deciding whether to reclassify a road the selectboard makes a decision according to what it deems is the public good and necessity. The law specifically provides that a class four highway need not be reclassified to class three merely because there exists within a town one or more class three highways with characteristics similar to the class four highway. In considering whether to reclassify a class four highway to class three, consideration may be given as to whether the increased traffic and development potential likely to result from the reclassification is desirable or is in accordance with the town plan. 19 V.S.A. § 711. 16. Citizens cannot force selectboard to change road policy. In one town, citizens on a particular road were unhappy about the level of service they received from the road crew. After complaining to the selectboard and receiving a less than enthusiastic response they wanted to petition the selectboard to warn a meeting to discuss the road maintenance policy for the town. The law does not require the selectboard to call such a meeting as decisions about road maintenance are left to the discretion of the board (who may delegate the decisions to the road commissioners). Of course, the citizens can always raise these types of concerns during the "other business" portion of town meeting. 17. Town should not have policy of bidding at all tax sales. One town made the mistake of adopting a policy of bidding at all tax sales in the amount of taxes, penalties, and interest due. 32 V.S.A. § 5259. This policy resulted in the purchase of a mobile home of no value, which cost the town money to remove. The best policy is to have the delinquent tax collector describe, in advance of the sale, each parcel to be sold so that the selectboard can decide on a case by case basis whether it is in the interest of the town to bid on the property. 18. Tax sale may include water and sewer delinquencies. According to 24 V.S.A. §§ 3504, 3612, delinquent water and sewer charges can be collected in the same manner as delinquent property taxes. This means that when a person is delinquent in both taxes, and water and sewer charges, all of these delinquencies may be combined and collected together. Of course, the collector should set each delinquency out separately in the notice of delinquency that is sent to the taxpayer so they know the basis of each delinquency. 19. Board may determine that committee executive sessions may exclude non-committee members. When a board sets up committees the open meeting law will apply to the meetings of the committee. 1 V.S.A. § 312. Committees may go into executive session where appropriate. The law does not directly address whether a committee may exclude members of the board from its executive session. However, the board has the authority to establish its own rules or policies about who may attend committee executive sessions. It may be particularly important to have a clearly defined rule for large boards that have personnel committees that conduct employee evaluations. The law would permit a board to decide that only members of that particular committee may attend an executive session, or that any board member may attend. 20. No law silences participants in an executive session. There is no law that prohibits board members who participated in an executive session from telling others what went on in the closed meeting. That being said, there are important public policy reasons for permitting private discussion of executive session matters. It is poor practice and could result in liability for the town, and serious problems between board members when individuals disclose what went on in the confidential session. 21. Board member who discloses confidential information cannot be kept from executive session. The law governing executive sessions does not require board members to keep the discussions confidential – although this is certainly best practice. Consequently, there is no authority to keep any board member out of an executive session — even if that board member breaches confidentiality. Note that where a board member has breached confidentiality – particularly in a personnel matter - it may be wise to ask the board’s attorney to send that board member a letter explaining the potential liability the municipality could face as the result of the breach. In our monthly Opinions, we provide what we believe the law requires based upon our legal judgment, years of observing Vermont's local government practices, and Vermont Court decisions. This information is intended as a reference guide only and should not replace the advice of legal counsel.
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Civics Behind the Scenes |
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In the presidential election, students chose Barack Obama with 72 percent of the vote over John McCain, who received 24 percent. As the incumbent candidate for both major parties, Peter Welch was decisively re-elected to Vermont’s lone Congressional seat with 67 percent of the student vote.In the three-way race for Governor, students re-elected Governor Jim Douglas with 51 percent of the vote. Gaye Symington earned 21 percent, and Anthony Pollina trailed with 15 percent.The race for Lieutenant Governor was a very close one. Students chose incumbent Brian Dubie over challenger Tom Costello, with respective margins of 40 percent over 39 percent of the vote. In other statewide races, students picked incumbents across the board. Jeb Spaulding was chosen as Treasurer, Deb Markowitz as Secretary of State, Tom Salmon as Auditor of Accounts, and William Sorrell as Attorney General. These results reflect the returns about 55 percent of the school communities that held mock election using the Vermont Votes for Kids model. Over 300 Vermont schools have participated in the Vermont Votes for Kids civics education program in some way during this historic presidential election year. Response to the Mock Election program was overwhelmingly positive. About 7,000 more students voted in the 2008 election than did in 2004, which is an increase of approximately 25 percent. Parents and educators around the state commented on how pleasantly surprised they have been by the high level of interest kids had in the election this year. As a result, Vermont students have become increasingly knowledgeable about the electoral process, as well as the candidates and issues of this year’s election. We know that student enthusiasm for voting increases adult voter turnout, because kids talk about the election, and make sure their parents vote. Therefore, kids can impact the outcome of the election even though they are not old enough to vote. The goal of the Vermont Votes for Kids civics education programs is to make the power of democracy clear to kids. From this year’s results, it looks like they get it. Thanks to all that help make it happen. To see the complete results table, go to www.sec.state.vt.us/kids/vtvotes/2008_Mock_Election_Results.pdf
Visit www.sec.state.vt.us or contact Missy Shea at 802-828-1296 or email mshea@sec.state.vt.us
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Another tool to keep the checklist up-to-date: In Walden, Diane creates a list of everyone who did not vote at the General Election, and checks the Statewide Checklist for duplicates based on this list of the approximately 30 percent who did not cast ballots. To create a list of voters who did not vote: • In the Statewide Checklist reports module, export a participation report (choose the option "Entire Checklist") in Excel. • Open the Excel doc, and sort it by the "Voted" column. • Delete all of the records that are "true" and you are left with everyone who did not vote! Please send your Tip of the Month to John Cushing of Milton at jcushing@town.milton.vt.us or call him at 802-893-4111. Table of Contents | Past Issues of Opinions | Secretary of State's Homepage |
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Calvin Coolidge
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Vermont has had two federal cases involving challenges to religious displays on public property. In 1988, the trustees of the village of Hyde Park settled a challenge by agreeing to no longer place a cross on the Hyde Park court house lawn. In 1989, the second circuit court of appeals held that based upon the specific facts of the case, the display of the menorah in City Hall Park in Burlington would violate the Establishment Clause of the First Amendment. A more recent 1997 second circuit case, Elewski vs. the city of Syracuse, held that the challenged placement of a creche in a public park along with a menorah in a nearby public park and other secular decorations throughout the town was not unconstitutional and did not violate the separation of chuch and state required by the first amendment. This court went through a detailed description of the cultural, social, and economic motivations of the downtown merchants and city officials in its analysis. What do we learn from these cases? First, and foremost, the definitive U.S. Supreme Court case, County of Allegheny vs. ACLU (relied upon by lower courts to decide challenges to displays on public property), makes it clear that any decision will be extremely fact specific and the outcome will depend on the presentation of the various facts to the judge. In fact, in Allegheny, the Supreme Court justices wrote five separate opinions joined in whole or part by various members of the court because the nine justices drew different conclusions based on the facts as presented. After the Allegheny decision, the judge must determine "would a reasonable observer of the challenged display in its particular context perceive a message of governmental endorsement or sponsorship of religion?" This endorsement test focuses upon the perception of a reasonable, informed observer who must be deemed aware of the history and context of the community and forum in which the religious display appears. Therefore, after Allegheny, not every city-owned and/or displayed creche or menorah violates the Establishment Clause. The issue is now, would a reasonably informed observer perceive the display as a message of endorsement of a religion or perceive a celebration of the diversity of the holiday season? In a nutshell, we believe that if municipal officials wish to permit holiday displays on public property, the physical display(s) itself and all of the historical and cultural facts surrounding the placement of the display(s) must support the conclusions that the display(s) are a celebration of the diversity of the holiday and not an endorsement of a particular religion. |
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December 2008 1 - Last day to pay property taxes in towns that voted to collect interest on overdue taxes. 32 V.S.A. § 5136(a). 4 - Last day for U.S. Congressional candidates to file FEC 30-day post-general reports (Oct. 20-Nov. 28), 2 U.S.C. § 434(a)(2). 14 - Last day for listers to notify persons of omissions from inventory. 32 V.S.A. § 4086. 15 - Deadline for filing forty-day post election campaign finance reports with the Secretary of State by candidates for statewide office, state senator, state representative, political committees, and political parties who have expended or received $500.00 or more. Also deadline for filing forty-day post election campaign finance reports by county office candidates who have made expenditures or received contributions of $500.00 or more. County candidates (probate judge, assistant judge, state’s attorney, sheriff, high bailiff and justice of the peace) shall file with the county clerk with whom his or her nomination papers were filed. Copies of these reports must be forwarded by the county clerks to the secretary of state within five days of receipt. 17 V.S.A. §§ 2811, 2821(c), 2831 If a filing deadline falls on a Saturday, Sunday or legal holiday, then the deadline shall be extended to the next business day. 17 V.S.A. § 2103(13) Candidates for the state senator or state representative must also file such reports with the clerk of the candidates’ respective senate or house district (the same clerk where the candidate files nominating petitions). 17 V.S.A. § 2811(e) 15 - Electors shall meet at the state house to vote for president and vice president agreeably to the laws of the United States (first Monday after the second Wednesday in December following the general election). 17 V.S.A. § 2732. 23 - (70 days before Town Meeting) First day to warn the first public hearing if a charter adoption, amendment, or repeal is to be voted on at Town Meeting. V.S.A. 17 §§ 2641(a), 2645(a)(3). 25 - Christmas Day V.S.A. 1 § 371(a). 30 - Last day for listers to correct real or personal estate omission or obvious error in grand list, with approval of legislative body. V.S.A. 32 § 4261. 31 - Town fiscal year ends, unless voted otherwise. V.S.A. 24 § 1683(c). January 2009 1 - New Year's Day. V.S.A. 1§ 371(a). 2 - (60 days before Town Meeting) Last day to warn the first public hearing if a charter adoption, amendment, or repeal is to be voted at Town Meeting. 17 V.S.A. §§ 2641(a), 2645(a)(3). 7 - (First Wednesday after the first Monday of January) Legislature reconvenes. Vermont Constitution Ch 11 § 7. 15 - Last day for tax collector to deliver upaid real and personal property tax lists to town treasurer. V.S.A. 32 § 5162. 15 - Last day for town clerk to remit to state treasurer an accounting of dog and wolf-hybrid licenses sold and remit the license fee surcharge for a rabies control program. V.S.A. 20 § 3581(f). 19 - Martin Luther King, Jr.'s Birthday. V.S.A. 1 § 371(a). 22 - (Not less than 40 days before Town Meeting) Last day to file petitions signed by at least five percent of voters with town clerk for articles to be included in Town Meeting warning. V.S.A. 17 § 2642(a). 22 - (40 days before Town Meeting) First day for the legislative body to warn the meeting by posting the warning and notice in two public places and in or near the town clerk's office. V.S.A. 17 §§ 2641(a), 2642. 22 - (40 days before Town Meeting ) Last day for board of civil authority to designate polling places and, if necessary, divide the checklist according to geographic boundaries. V.S.A. 17 § 2501(a). 22 - (10 days before first public hearing) Official copy of proposed charter amendments must be filed in town clerk's office if vote is to be taken on Town Meeting Day. V.S.A. 17 § 2645(a)(2). 25 - State Withholding Tax Return is due (actual date by which return must be postmarked is shown on the printed form) if reporting less than $2,500 per quarter. More than $2,500 requires monthly report; more than $9,000 requires semi-weekly report. V.S.A. 32 § 5842. 26 - (Sixth Monday before election) 5:00 p.m. deadline for filing with the town clerk nominating petitions for town offices to be voted on by Australian Ballot. V.S.A. 17 § 2681(a). 27 - (Within 24 hours of receipt) Town Clerk must return nominating petitions found not to conform, stating in writing the reasons why they cannot be accepted V.S.A. 17 § 2681(e). 27 - Last day for auditors to post 10 days notice of their meeting to examine town accounts. V.S.A. 24 § 1681. 28 - (Wednesday after filing deadline) 5:00 p.m. deadline for candidates to file written consent for the candidate's name to be on the ballot. V.S.A. 17 § 2681(a). 28 - (Wednesday after filing deadline) 5:00 p.m. deadline for a person to withdraw after he or she has consented to be nominated. V.S.A.17 § 2681(d). 28 - (Wednesday after filing dadline) 5:00 p.m. deadline for candidates to file supplementary petitions if initial petition was not accepted. V.S.A. 17 § 2681(e). 30 - Last day for town clerk in municipality with fiscal year ending December 31 to publicly disclose fees kept as compensation for that fiscal year. V.S.A. 24 § 1179. 31 - Last day to file Form 941 (Quarterly Withholding Return) with the IRS. 31 - Last day to mail W-2 Withholding Forms to employees. The Municipal Calendar is provided by the Vermont League of Cities and Towns/Chittenden Bank and the Secretary of State's Office. The Secretary of State's 2008 Election Calendar is available online here. The Secretary of State's 2009-2010 Elections Calendar is available here. Table of Contents | Past Issues of Opinions | Secretary of State's Homepage
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Help us keep our mailing list up to date! Let us know if: Send us a note via fax: 802-828-2496, Thank you for helping us keep Opinions running efficiently! Table of Contents | Past Issues of Opinions | Secretary of State's Homepage
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