1. Entrance checklist is public record. The law provides that the entrance checklist from each election must be kept for five years following the election and a copy shall be made available upon request at cost to the public. 17 V.S.A. §2590. Although the ballots and tally sheets may be destroyed 90 days after a local election, and 22 months after an election including federal offices, the entrance checklist must be retained for five years.

2. Clerk may not reject documents based on a neighbor’s complaint. A town clerk must record properly submitted deed and survey (conforms to statutory requirements in 27 V.S.A. §341) even if an abutter objects that it contains incorrect information. The recording function is a ministerial duty that allows the documents to provide notice to others. If a correction needs to be made, a new corrected deed or survey must be submitted for recording.

3. Board should take care not to discuss business outside public meeting. In one town a public board was reported to "recess" its meeting for a brief time in order for board members to leave the room to continue to discuss board business in private. This violates the open meeting law. All board business must be discussed in public unless it meets one of the two exceptions to the open meeting law: executive session or deliberative session. It is perfectly appropriate for a board to take a brief recess to allow members to use the facilities, take a stretch, or return an important telephone call. However, the recess should not be a ruse so that board members can discuss board business outside of the hearing of the attending public.

4. Record custodian can require records to be reviewed in the presence of a town employee. A public agency may make reasonable rules to preserve the security of public records or documents, and to protect them from damage. 1 V.S.A. §316. It is not unreasonable for the custodian of public records to require the presence of a town employee when records are being reviewed to ensure that no papers are removed from the office.

5. Custodians of records are not required to find and fax. The public records law does not require the custodians of records to fax copies of documents to anyone, or require that the custodian conduct research to find documents. While each custodian can establish additional office practices, we caution clerks and others to be aware of potential risks of liability for the town if a requested document is missed or the wrong document is sent. 1 V.S.A. § 316(a).

6. Clerk is not the custodian of all town records. Although the clerk controls the town vault, and is responsible for many of the records of the town, the clerk is not the custodian of all town records. For example, the clerk is the custodian of town meeting minutes (24 V.S.A. § 1152), oaths of office, (24 V.S.A. § 831), the land records for the town (Vt. Const. Article 62 ); but not selectboard minutes (1 V.S.A. § 312 (b)(2)), listers cards or planning and zoning files (except to the extent that they are required by law to be filed or recorded with the clerk. See 32 V.S.A. § 4111; 24 V.S.A. § 4323(b); 24 V.S.A. § 4449(c)(1)(A).)

7. Officials must pass records on to successors. Vermont law provides that "When a town or town school district office becomes vacant by expiration of the term of office of the incumbent, or otherwise, and a successor is elected or appointed, on demand, he shall be entitled to receive from the last incumbent of the office or anyone having possession of the same the records, files, books and papers of such office, or property of the town or the town school district, as the case may be." 24 V.S.A. § 991

8. Active duty military get a break on delinquent taxes. The Service Member Civil Relief Act (formerly the Soldiers and Sailors Relief Act) limits the interest and penalty that can be charged for delinquent taxes of a member of the military who is on active duty. This federal law limits interest to six percent annually and prohibits the assessment of a penalty. In addition, property belonging to a person on active duty with the military can only be sold at tax sale by permission of the court. If property is sold the owner has a right of redemption up until six months after leaving the military. This law will apply to property jointly owned by a service member and a dependent. 50 USCA § 560.

9. Open-air cremations are prohibited and permits will not be issued. In a prior issue of Opinions (October 2006), the Vital Records’ Office had been informed that open-air cremations (e.g., "on private property") were allowable if the appropriate permits were obtained, including permission from the Air Pollution Control Division at DEC.  That determination has now changed.  Based on a memorandum issued June 14, 2007, and additional clarification on January 31, 2008, the Air Pollution Control Division has determined that open-air cremations are prohibited in Vermont.  A cremation must occur within an enclosed vessel and subject to the regulations for operating a crematory.  The Attorney General’s Office has reviewed the statutes and is in agreement.  Based on this decision, the Air Pollution Control Division will not be issuing any permits for open-air cremations.  If town clerks have any questions, they should contact the Vital Records’ Office at the Vermont Department of Health.

10. There is no reconsideration of election of officers. While 17 V.S.A. §2661 provides a method for reconsideration of public questions and budgets, the election of officers cannot be reconsidered by filing a petition with the legislative body. 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.

11. The legislative body must call a special meeting within 60 days of the submission of petitions to reconsider that are properly filed. (17 V.S.A. §2661). We hope that town, school, and union school officials will all coordinate the setting of special meeting dates to minimize voter confusion.

12. Best practice is to send absentee ballot for reconsideration to voter who requested one for 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. A reconsideration is really an extension of that town meeting, and we believe that absent voters should be given the opportunity to participate in the entire vote. A voter who was sent a ballot but shows up at the polls to vote or requests a ballot be sent to a new location can be accommodated by asking them to sign a statement that they did not vote the ballot that had already been sent to them.

13. Adjourned meeting can only discuss articles warned for the original meeting. When a meeting is adjourned to a date certain, the adjourned session can only include completion of voting and discussion of articles which were in the original warning. New articles cannot be added during the recess. The adjourned session is a continuation of the original meeting. If the deadline for posting of the warning has passed, and your board has thought of another article, the board will need to either warn a special meeting or save it for next year.

14. Selectboard fills vacancies when no one runs for an office at town meeting. 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 has been had. If there are no nominations for an office, the selectboard appoints. If at a later date other interest arises in the office, five percent of the legal voters can petition for a special election.

15. Delinquent tax collector may be elected for three-year term. 17 V.S.A. § 2646 permits a town to elect a delinquent tax collector for a term of three years. When a town chooses to elect a delinquent tax collector for a three-year term, that term length will remain in effect until the town rescinds it by the majority vote of the legal voters present and voting at an annual meeting, duly warned for that purpose.

16. Only actual attorney fees may be charged to delinquent tax payer. When the delinquent tax collector uses an attorney to begin the tax sale process, the delinquent tax collector may add the actual and reasonable attorney fees that it has incurred to the fees owed by the delinquent taxpayer. 32 V.S.A. § 5258. The amount charged for attorney’s fees may not exceed 15 percent of the total tax owed. Note that past practice of some towns was to simply pay an attorney 15 percent, no matter how much time was spent on a particular sale. An amendment to section 5258, adopted in 1995, makes it clear that this can no longer be the practice – a town may only charge the taxpayer for the expenses actually and reasonably incurred by the tax collector for legal assistance in the preparation for or conduct of said sale.

17. Tax collector must have selectboard’s approval to hire attorney. Although the delinquent tax collector may choose whether, when and where to hold a tax sale, the collector does not have authority to contract with an attorney to assist in conducting the sale. Even though an attorney, in this instance, is not generally paid from town revenues, the law requires the delinquent tax collector to seek the selectboard’s approval before obtaining legal assistance.

18. E-mail may be used for deliberation for quasi-judicial decision. Ordinarily, decisions made by a board outside of a public meeting – whether they are made at a party or through use of e-mail - will violate the open meeting law. However, because deliberations of a quasi-judicial body (when the board is acting like a court), where the decision will be in writing, can be held outside of a public meeting, there is no prohibition against a board conducting its deliberations through e-mail by passing draft decisions back and forth between board members.

19. Beware: e-mails sent between board members about public business may be public record. Even if two board members e-mail to and from their home computers, those messages will be subject to the requirements of the public record laws. This means that if the subject matter of the e-mail is not exempt from the public records law, by, for example, being about a personnel matter, then it must be disclosed upon request.

20. E-mail may be used for routine communication. Boards must take care not to violate the open meeting law through use of e-mail. Decisions about town business must be made at the public meeting – as should information gathering and discussion of the town business by a majority of the board occur only at the public meeting. This means that e-mail should play a limited role in the conduct of town affairs. In one town the manager sends daily or weekly reports to board members – this is appropriate. In another, board members e-mail the chair with items for the meeting agenda and the chair e-mails the board members to discuss when the best time is to schedule a special meeting of the board.

21. Board must reschedule meeting if less than a majority are present. In most cases, when less than a majority appear at a hearing or meeting, the hearing or meeting must be rescheduled for a new date. In one town, when the zoning board fails to achieve a quorum for a hearing on a matter it opens the hearing and then adjourns to a date certain. However, because it is unclear whether less than a majority can "act" to open the hearing at all – even just to adjourn to a date certain, the best practice is to re-warn the hearing. 1 V.S.A. § 172. Note that there are some exceptions to the rule above when the law provides a special quorum rule. For example a BCA can meet with only three members present.

22. Dissenting members may add written opinion or explanation. Whenever a written opinion is required, the minority is free to write a dissenting opinion to explain their vote. Every once in awhile a dissenting member of a board feels so strongly about a matter that he or she wishes to attach to the written decision an opinion explaining why he or she did not vote with the majority. There is no law prohibiting this, and indeed, it may give the public a better understanding of the complexity of the situation, and the different viewpoints of the board.

23. Member of the public cannot force board to amend minutes. In one town a member of the public believes that the minutes of a meeting of the board misquoted her. Although this individual may go to the board to request they amend the minutes — whether minutes are approved or amended is solely in the discretion of the board. In such a case it might be appropriate to allow the individual to lodge her objection in writing, and file that writing with the meeting minutes.

24. Town clerk is not required to be clerk of the board. In many communities the town clerk also serves as the clerk of the selectboard. Law does not require this arrangement. This means that the board can only appoint the town clerk to serve as clerk of the board if he or she is willing to serve in that capacity.

25. Secretary of State has no authority over local officials. In Vermont there is local control of town affairs. This means that neither the Secretary of State’s Office nor the Department of Education has authority to investigate complaints or force local officials to take particular actions. However, if a local official fails to perform mandatory duties, the State’s Attorney or the Attorney General can bring an action against the official. 13 V.S.A. § 3006 provides that "A state, county, town, village, fire district or school district officer who willfully neglects to perform the duties imposed upon him by law, either express or implied, shall be imprisoned not more than one year or fined not more than $1,000.00, or both.." Of course, very often the real way to solve the problem with a board member is political – voters have an uncanny way of not re-electing those officials who are unresponsive!