News coverage of the 2007-2008 legislative session has focused on the usual suspects: health care, energy, our aging transportation infrastructure, campaign finance, etc. A less noted, but nonetheless significant theme of the session is public records. A very cursory search of legislative bills turned up 20 bills relating to public records. Of these, eight address in whole or in part privacy issues and nine address access or disclosure.

This breakdown is an indicator of our ambivalence about records. On one hand we celebrate open records; on the other we worry about the disclosure of personal information within public records.

For example, H.452 (and S.76) proposes "to make available to the public the names of businesses, including dairy farms, registered with the agency of agriculture, food and markets." S.59 wants to expand the definition of public record to include audio and video tapes and DVDs. H.340 seeks to "permit, for any purpose, public access to criminal conviction records maintained by the Vermont criminal information center." S.236 would "clarify the manner in which electronically stored information is subject to court proceedings to discovery rules regarding the production of documents and tangible things."

On the other hand, H.35 seeks to exempt "information revealed by a participant in a counseling session conducted by a law enforcement agency or emergency services employee." H.335 seeks to "make confidential all reports, records, and other information obtained or produced by the victim’s compensation program during the processing or investigation of a claim." H.459 would prevent telecommunication companies from selling "subscribers’ personal information, or any other data pertaining to a subscriber, to a third party without the written authorization of the subscriber." S.246 would "prohibit the courts from allowing the general public to have unlimited electronic access to criminal and family court records." H.397 wishes to restrict "public access to information contained on a death certificate." S.220 would protect library patron records.

While many of these bills will not pass, the scope of the topics; their tensions between openness and privacy; and their ad hoc nature demonstrate why public agencies occasionally grapple with understanding access to records requirements. Which public records are open; which are exempt; and which are open but may contain exempt information?

A few bills attempt to step back and take a larger view of public records. H.826 proposes a study on "how the personal information of Vermonters is collected, how such information is used and shared with others, and if the personal privacy interests of Vermonters require additional protection." S.229 addresses access to records, including actual costs for copies; a public records act review committee to review exemptions to the public records act; and a public records advisory board to offer opinions when access to a public record has been denied.

S.351, a bill near and dear to my heart, takes a different tack by focusing on the effective management of public records. It proposes consolidating the state’s record management program, currently in the Department of Buildings and General Services, under the State Archives within the Office of the Secretary of State. The goal is to create a single, authoritative voice for assisting agencies in the management of their records. Within that goal is the need to provide such assistance from the point of record creation instead of the current system when agencies often seek help in retroactively managing records that have become too voluminous to handle effectively. In a digital world in particular it is impossible to retroactively apply management steps. The federal and the other state governments have recognized the need for consolidated records programs; Vermont is one of 13 states where archival and records management remains administratively fragmented.

I will address S.351, and what it means to you, in future columns. For now, I pose this question: can you articulate a balance between the desire for transparency and access to government information with concerns about personal privacy? I hasten to add that privacy concerns are not limited to public records as the business world constantly seeks to collect and mine data to track consumer trends, target potential customers, evaluate credit ratings, etc. It has often been remarked that a right to privacy is chimerical; there is so much data being collected and shared that privacy no longer exists.

A February 18th opinion piece in the New York Times, for example, noted how hard it is to delete voluntarily supplied personal information from Facebook, YouTube and other private sector services. It also noted the reaction to Facebook’s Beacon system that notified users’ friends—without the users’ consent—about online purchases. The piece explained how hard "identity management" is in a networked world and how voluntarily supplied personal information can come back to haunt you.

In terms of public records the rub, as always, is in the details. If you are convicted of a criminal offense have you waived a portion of your right to privacy and your conviction records should be available online? Or does posting the records create a burden on re-integration into society? Would the details of an individual’s death embarrass the family, or do you have a right to know any health issues in your neighborhood or state? Does putting your real property/grand list information online expose you to robbery or does it enhance your marketability of title by allowing potential buyers to know something about your property, town tax rates, etc? Should the library books you check out be protected information? What about the books your children check out; do they have an equal right to privacy or do you have parental rights that condition their right to privacy?

The balance is elusive. Legislative efforts to address openness and privacy can find themselves in conflict; more often than not they are addressed in an ad hoc manner that obscures potential conflicts or inconsistencies. Just as often the myriad bills that effect public records go unnoted by the public. So, I ask again: can you clearly define your right to know and your right to privacy?

1. Primary ballot includes candidates who have announced they were no longer running. In order to get on Vermont’s presidential primary ballot candidates were required to submit petitions and payment in January. Since that time some of these candidates have announced in the national press that they are no longer running for office. However, since the candidates did not withdraw their names from our ballot, Vermont voters will still have the option of voting for them. Politicking in the polling place is not allowed. This means that although it may be tempting to warn voters that a vote for a particular candidate will be "wasted," it is not permitted. Please remind your poll workers that it is never appropriate for election officials to comment about any candidates on the ballot – even those who have announced that they have dropped out of the race.

2. When voters elect a person who has withdrawn his/her nomination, the office will be considered vacant. Once the ballot is printed it is not possible to remove a person’s name as a candidate for office. Every year there are a few individuals who decide too late (i.e. after the ballots are printed) that they would prefer not to serve in the offices for which their names appear on the ballot. In this situation, the person simply declines the office if he/she wins, and then the office is considered vacant, and the board may fill the vacancy until the next election.

3. Person appointed to fill a vacancy must be qualified to serve. When a board fills a vacancy in a municipal office the person who is appointed must meet all the statutory requirements to be elected to the position. For example, if a school board member resigns, creating a vacancy, the board must fill the vacancy with a person who is a legal voter in the school district. 16 V.S.A.§§ 424, 558. Most town officers must also be legal voters in the town. 17 V.S.A.§2646. If the position is one for which there are no statutory requirements, such as library trustee, then the selectboard may even appoint a non-resident. For some boards, the statutes allow certain members to live out-of-town (see planning commission). Therefore, the selectboard needs to check on the qualifications for each position before making an appointment.

4. Town clerk is responsible for preparation of town meeting minutes. Vermont law makes the town clerk responsible for the preparation of the town meeting minutes 24 V.S.A.§1152. Even if the town clerk is not seeking re-election, it is the responsibility of the clerk whose term is ending to make a record of the town meeting. (Note that the new clerk will generally take office at the end of the town meeting.) The record or minutes must be approved and attested to by any two of the following: moderator, selectboard or justices of the peace. The clerk shall request approval within seven days after each town meeting and his/her request must be given prompt consideration.

5. Motion to reconsider must be made before next article is considered. If a voter wishes to move for reconsideration of an article during town meeting, the voter must make the motion BEFORE consideration of the next article on the warning. 17 V.S.A.§2661(a). After the motion has been made to begin consideration of the next article, it is too late to seek reconsideration during the meeting.

6. There is no reconsideration of elections of officers. 17 V.S.A. §2661 provides a method for reconsideration of public questions, and budgets. However, no law exists that will permit the reconsideration of election of officers. The only way to challenge or contest an election of an officer is by filing a petition with the appropriate Superior Court. (17 V.S.A. §2603) The statute sets out that you must allege either errors sufficient to change the outcome of the election, fraud in the process sufficient to change the result, or that for any other reason, the election is not valid. This applies whether the vote is at a floor meeting or is by Australian ballot.

7. Best practice is to provide absentee ballots for reconsideration vote to voters who requested them for the original vote. Although the law does not speak directly to requesting absentee ballots for reconsideration of an article by Australian ballot, we suggest that fairness dictates that the town clerk send absentee ballots for the reconsideration to all voters who had requested absentee ballots for town meeting. Reconsideration is really an extension of the original meeting, and we believe that absentee voters should be given the opportunity to continue to participate.

8. Votes requiring two-thirds instead of a majority at town meeting. There is a very short list of votes that require a two-thirds majority at town meeting: tax stabilization agreements relating to commercial or industrial property (24 V.S.A. §2741(b)) and when Robert’s Rules requires two-thirds for procedural motions such as motions to suspend the rules, to rearrange articles, to cease or limit debate; to adopt special rules of order; to allow a non-resident to speak after a voter has objected, to close nominations; and to postpone to a time certain (17 V.S.A. §2658).

9. Article passed over at town meeting may be re-warned for consideration at a later meeting. Articles that are voted to be either "passed over" or "postponed indefinitely" cannot be raised at a subsequent special or annual meeting without warning a new article. Likewise if an article is "tabled" (it could be removed from the table during that meeting) it cannot be considered at a subsequent special or annual meeting without being warned as an article for the new meeting. Voters rely on the warning to know what will be discussed.

10. Motion to adjourn to a date certain allows town to avoid warning delays. If voters want to continue a meeting to a later date it is generally best to make a motion to adjourn to a date and time certain so that the meeting does not need to be warned again. This will allow the meeting to take place expeditiously, without having to wait the 30 to 40 day warning period for a new meeting. A motion to adjourn to a date certain is most commonly used in the event of bad weather or other emergencies (like a broken furnace). It may also be used when the voters want to postpone a vote until they receive additional information that is not available at town meeting (as when an audit report is delayed). If the motion to adjourn does NOT contain a date and time certain, the next meeting will require full 30 to 40 day warnings.

11. When no one is nominated for an office, there is a vacancy to be filled by the selectboard. At a town meeting in a town that does NOT use Australian ballot for election of town officers, if no one is nominated from the floor, the office remains vacant and the selectboard must appoint until the next election. The selectboard or moderator cannot "force" the town meeting to keep nominating until someone accepts the nomination by stating that the next article will not be considered until the election is completed. If there are no nominations for an office, the selectboard appoints to fill the vacancy. If at a later date interest arises in the office, five percent of the legal voters may petition for a special election.

12. Union school must use paper ballot to dispense with Australian ballot. Union school district law states that "the votes whether to use the Australian ballot and whether to commingle the ballots shall be taken by written ballot." 16 V.S.A. §711e(b). Generally, when the adoption of an article is prescribed to take place in a certain fashion, the reconsideration or rescission of the article is voted in the same manner. Accordingly, a vote to discontinue the use of Australian ballot would be by "written" or paper ballot. Note, however, that if the union high school district voted to adopt all public questions by Australian ballot in its previous vote, the vote on whether to discontinue the Australian ballot would be taken by Australian ballot, since it is a public question. 17 V.S.A. §2680(d). (If the school district voted to adopt only the budget by Australian ballot, then the vote to discontinue must come at a traditional floor-type meeting.)

14. Budget reconsideration must be voted in same manner as initial budget vote. In one town, at the same meeting that voters rejected a school budget, it voted to adopt all budgets by Australian ballot. Despite the vote to go to Australian ballot, the budget re-vote must be a floor vote. Courts consider that the election is not complete until the budget issue is finally resolved. Any new budget votes – after the budget passes – must be voted by Australian ballot.

15. Roll call votes require a record of the particular votes of board members. Minutes of board meetings do not need to reflect which board members have voted in favor of or in opposition to a motion, unless a roll call vote is requested by a board member prior to the vote on the motion. 1 V.S.A. §312(b) (1) (D). If a roll call is requested, the public meeting law requires that the minutes indicate how each board member voted on the motion. Note that how a board member voted is still public information, so board members and other attendees of the meeting should be free to disclose how a particular board member voted. Indeed, a board member’s voting record may be a factor for town voters in deciding whether to reelect that particular official.

16. Many pets require a rabies vaccine. The Vermont Health Department reminds town clerks that dogs, wolf-hybrids, cats and ferrets must be rabies vaccinated in Vermont. 20 V.S.A. §3581a. Note that state law only requires dogs and wolf-hybrids to be licensed (and requires proof of vaccination), but towns may also pass animal control ordinances to license other domestic pets. A town that regulates other domestic pets may require proof of vaccine. 20 V.S.A. §§ 3581, 3549, 3550.

17. Selectboard may create a police department. A selectboard may decide to contract for law enforcement services or create a police department in the town. 24 V.S.A. §1931. This is true whether or not the town has an elected constable who has law enforcement authority. Because the decision of whether or not to establish a police department is given, by statute, to the selectboard or town manager, the voters may not require a public vote on the issue by petitioning an article for warning as part of the annual or special meeting of the town.

18. Voters may not petition to require elected constable to work full-time. An elected official has discretion as to how he or she performs the duties of the job. If the voters are unhappy they have the ability to let the official know, and ultimately they may elect someone else to fill the position. Although the voters may vote to increase the budget of the constable so that he or she could be paid for additional hours of work, the voters cannot, by vote, force the constable (or any other official) to work additional hours.

19. A vacancy in an elected constable position may only be filled by a person who would be qualified to stand for election to the position. If no one is elected to fill a constable position, or if the position becomes vacant for some other reason, the selectboard may fill the position until the next election. The board may not hire a sheriff in the neighboring town to serve as constable unless he or she is a legal voter in the town, and would thus, be qualified to stand for election to the position.

20. No conflict of interest exists when a person serves on both the planning commission and development review board (DRB). In many towns members of the DRB also serve on the planning commission. There is no conflict of interest in this dual membership because one board does not oversee or judge the work of the other. Rather, the experience of the board member on the DRB can help inform his or her work in developing the town plan or bylaws, and vice versa. On the other hand, it is always good for a town to engage a broad cross-section of the community on its boards, in part to prevent burn-out by the volunteers and in part to prevent a public perception that one individual is dominating local decision-making.

21. Ex officio notaries must file with superior court. Justices of the peace, town clerks and their assistants, municipal police officers, sheriffs and others who serve as ex officio notaries public cannot perform notarial services until they submit an application to the superior court and take the oath of office. 24 V.S.A. §441. A new application must be submitted every four years (at the time when all notarial appointments expire.) These officials do not need to pay the registration fee and their commissions expire once they leave office. Also, ex officio notaries provide notary public services without charge or fee. 32 V.S.A. §1403(b).

22. Delinquent tax collector adopts collection policy. Vermont law gives the delinquent tax collector the authority to adopt a collection policy and decide when or whether to conduct a tax sale. The selectboard has no authority to order the collector to take collection action; however, if the collector fails to do his or her job a court can assess penalties. 13 V.S.A. §3006.

1. FINISH THE MINUTES: The town clerk is obliged to prepare the minutes of town meeting and have them approved by two people from among the following officers-selectboard member, moderator, or justices of the peace. This must be done within seven days of the meeting. 24 V.S.A. § 1152.

2. GET ORGANIZED: "Forthwith," the statute announces, the selectboard must meet, elect a chair, a clerk (of the board), and let the town clerk know your decision. At this meeting, you will also need to appoint three fence viewers; a poundkeeper; inspectors of lumber, shingles and wood; weighers of coal; and a tree warden. 24 V.S.A. § 871. The same process should be followed by any board, including auditors, listers, the board of civil authority, the board for abatement of taxes, planning commission, and zoning board of adjustment, and any others. Take up the issue at your first meeting, elect a chair, set your regular meeting schedule and let the town clerk know about it.

3. SETTLE: Immediately after town meeting, if not before, auditors need to "settle" with former town officers. If a new delinquent tax collector has been elected, for instance, the former collector must pay over all funds collected to date and make a complete accounting of the taxes still owed. 24 V.S.A. § 1578. All papers in the collector’s hands are also to be turned over to the successor collector.

4. GET SWORN: Town clerks, select board members, constables, listers, grand jurors and fence viewers and the school board must be sworn in before taking office. 24 V.S.A. § 831. See the town clerk for forms, or look at the oath in Chapter II, Section 56 of the Vermont Constitution, in the first volume of Vermont Reports.

5. GET BONDED: School directors, constables, road commissioners, collectors of taxes, treasurers, and town clerk must be bonded before taking office. 24 V.S.A. § 832. The selectboard sets the amount. This is usually done through your insurance company. The town or school district pays for the bonds, not the officers. 24 V.S.A. § 835.

6. TELL WHO WAS ELECTED: Newly elected town clerks must file the certificate of their election with the county clerk, signed by the moderator of the meeting, within five days of the election. File a copy of your oath of office as well. 24 V.S.A. § 1151. The clerk should also write the state treasurer to tell him the name of the new town treasurer. 24 V.S.A. § 1166. Actually, this must be done before July 1, but why not do it now and get it out of the way? Within five days of town meeting, the clerk should also send each lister’s name, mailing address, and length of term to the commissioner of taxes. 24 V.S.A. § 1168. Send the name and address of the constable to the county clerk. 24 V.S.A. § 1169.

7. APPOINT ASSISTANTS: Town clerks and treasurers must have assistants. They should be appointed by the clerk and treasurer following the beginning of each new term, and the appointment recorded. 24 V.S.A. §§ 1170, 1573. Send the county clerk a copy of the appointment of the assistant town clerk and of the assistant’s subscribed oath. 24 V.S.A. § 1172.

8. LEARN THE OPEN MEETING AND PUBLIC RECORDS LAWS: Read them. They are found back to back in the first volume of the Vermont Statutes Annotated, at 1 V.S.A. §§ 310-320. Everything is open unless you can find a reason to close it in these laws. Don’t meet with a quorum of your board without public notice. That’s against the law. See the Pocket Guide To The Open Meetings Law as well as our publication A Matter of Public Record: A Guide to Vermont’s Public Records Law on our website for details.

9. LEARN HOW TO DEAL WITH THE PUBLIC: You are a public officer. That means you are available to help, answer questions, find official paperwork, and anything else people ask of you. There are limits, of course. You don’t need to be abused. But as long as the public remains civil, you should try to help.

10. LEARN HOW TO ASK FOR HELP: Everybody helps everybody in Vermont. Call those who held the office before you. Call those who hold the same office but in another town. Call us. Call the League of Cities and Towns. Call state offices. There’s no reason not to ask for help. Everything is complicated at first.

The 2008 Vermont Centennial Business Awards ceremony is scheduled for Thursday, March 27, 2008, 4:30 p.m. at the Vermont State House.

The Vermont Centennial Business Awards is a joint project of the Office of the Secretary of State, the Vermont Chamber of Commerce and Vermont Business Magazine. The award acknowledges Vermont’s oldest businesses for enriching our economic heritage. We also hope that this program will deepen our understanding of how Vermont’s businesses have enhanced our community life during the last hundred years.

Join us for this event!  Register online at www.vtchamber.com.

Join us in thanking the following clerks for their years of service and wishing all of them a happy retirement!

Table of Contents     |     Past Issues of Opinions     |     Secretary of State's Homepage

Table of Contents     |     Past Issues of Opinions     |     Secretary of State's Homepage

Table of Contents     |     Past Issues of Opinions     |     Secretary of State's Homepage

The Selectboard Institute is an annual program offered exclusively to Vermont Selectboard members. Designed for both newly elected and more seasoned members, the program is highly interactive and allows members to learn from each other’s experience. Staff members who report to the Selectboard are welcome as well. Please note this is a Saturday event!

Please register by March 14, 2008. Registrations received after March 14 should include a $10.00 late fee. Cancellations for a full refund must be received in writing by March 14, 2008.

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2008 Town Officers' Educational Conferences
Coordinated by the Vermont Institute for Government and the University of Vermont Extension

Time: Registration 8:15 am, sessions run until 3:30 pm

Contact: Mary Peabody at UVM Extension
Phone: (802) 223-2389
Email: mary.peabody@uvm.edu
Register Online: http://regonline.com/toec08