The international collapse of financial markets and a declining economy and job market forced Vermont state government to cut programs. The question was, what services should be cut? In his 1933 inaugural Governor Stanley Wilson explained the problem.

"The great increase in the cost of our government aside from war time expenditures and those due to the [1927] flood has come about because the people acting through their representatives in previous legislatures have been constantly demanding that more be done for them through state agencies. We speak of essentials of government. The actual essentials of state government are few. Not long ago the state spent nothing for highways, public health, care of the insane, care of tubercular persons, public welfare, conservation, agriculture, forestry, industries, and supervision of public service corporations and but little for education and debt service. If we should eliminate expenditures for these endeavors now, we could run state government for a tenth of its present cost.

For practical purposes we must now define the essentials of state government to be those endeavors which are either necessary for the continuance of the constitutional functions of the state or which may properly be handled by the state and which the people had rather pay for and have the state carry on than to go without the service or provide for it through local taxes.

…To shift burdens from the towns to the state does not relieve the burden of taxation, although it may effect a different distribution of that burden and may secure greater efficiency. To cut off a state endeavor that is deemed essential will not relieve the burden, it will simply cast it on the several communities.

Probably we have no state endeavors that do not have merit. Some are absolutely essential to the continuance of our functioning as a state. Others are essential according to modern standards. Some are desirable only if we can afford them."

Governor Wilson’s need to reduce the cost of government sounds familiar as does his rather plaintive ruminations on what constituted the "essentials of state government" and which services to cut. Wilson’s statement that "not that long ago the state spent nothing on highways," etc. did not recognize the incremental growth of state responsibilities for the services he noted. For example, the 1777 Constitution gave the courts jurisdiction over "the Care of Persons and Estates of those who are non compotes mentis." The 1779 "Act for relieving…Idiots; impotent, distracted and idle Persons" required state support for the mentally ill who could not be provided for by either their families or towns. In 1835 the state began to periodically make appropriations for the Brattleboro Retreat and in 1841 made the first general appropriation for the insane poor. In 1884 the state assumed responsibility for the support of mentally defective paupers and in 1891 opened the Vermont State Hospital for the Insane in Waterbury.

The same incremental growth of state services occurred with education. For example the state provided free textbooks starting in 1894; took over the State Normal Schools (now the Vermont State Colleges) in 1896; created a state school fund of $1.2 million in 1906; and between 1925 and 1933 routinely appropriated money for a Community School House Fund which provided towns with matching funds of up to $100 to improve rural schools. Such long term incremental growth applied to all the services Wilson mentioned.

In a few cases Governor Wilson actually expanded the costs of some of the services he enumerated. He supported appropriations to forestry and highways in order to create jobs for unemployed Vermonters. He also had the commissioner of forestry employ men to cut wood on state land to be distributed to the unemployed for heating their homes.

The incremental growth of essential services was not linear and at various times state support was reduced. Starting in the 1923, for example, education experienced a series of cuts reducing the clerical staff of the Department of Education from 10 to six and reducing the department’s cost of administration from $31,000 to $29,000 by 1928. Still, local pressure for educational support continued and by 1932 state expenditures for education had grown by 21½ percent since 1924 (during the same time period state expenditures for highways grew by 186 percent).

Wilson noted the tensions among services that could be provided more effectively by the state rather than by individual municipalities and the risk of dumping the costs of some services on the towns. Under Vermont’s one town/one representative apportionment system the poorer rural towns had long used their vast legislative majorities in the House of Representatives to centralize the collection and redistribution of funding for services. In the 1890s the legislature passed levies on town grand lists for the support of highways and education to the advantage of the poorer towns. In 1931 those smaller towns supported the inauguration of a state income tax rather than levies on the grand list in order to alleviate local property taxes. They also supported creation of a state highway system in 1931 and other measures that increased the state’s responsibilities and costs for essential services. It was not until the reapportionment of the house in 1965 that the smaller communities lost their ability to shift costs from the towns to the state.

In turn the state, despite its Republican fealty, was quick to respond to federal programs by passing enabling legislation to benefit from New Deal programs. Wilson, for example, successfully encouraged the legislature to pass enabling legislation so Vermonters could take advantage of housing loans through the Federal Home Loan Bank. Wilson also supported new sources of taxation and celebrated a new tax on electric energy that generated $239,154 in 1932, further noting that the "tax has not been passed on to the consumers through increased rates."

While it is easy to draw parallels between Wilson’s Vermont and ours, it is his core question that remains important to us today: what are the essential services of government?

To read Governor Wilson’s 1933 inaugural speech, visit our website at: http://vermont-archives.org/govhistory/gov/govinaug/index.htm.

1. Voted absentee ballot cannot be returned to voter once received by clerk. If an early voter mails or returns in person a voted ballot in the sealed, signed envelope and the unused ballot envelope to the town clerk, the voter cannot ask for the ballot back so he can "change his mind." 17 V.S.A. §2543. The law states that "once an early voter absentee ballot has been returned to the clerk in the sealed envelope with the signed certificate, it shall be stored in a secure place and shall not be returned to the voter for any reason." It is just as if the ballot had been deposited in the voted ballot box on Election Day.

2. Spoiled absentee ballot can be returned and new ballot will be given to voter. If an early voter discovers that (s)he has made a mistake and spoiled a ballot prior to returning the ballot to the clerk, (s)he can return all of the spoiled ballots and envelopes to the town clerk and request another set of ballots to vote, just the same as a voter in the polling place can request up to three sets of ballots if (s)he spoils or makes a mistake in marking or tearing the ballots. 17 V.S.A §2568

3. There is no restriction on who may return absentee ballot on behalf of voter. Anyone - a neighbor, a delivery boy, even a candidate - can return voted ballots sealed in the voted ballot envelope with the signature of the voter to the town clerk (or polling place on Election Day) before the 7 p.m. closing of the polls. Vermont statutes do not limit the means by which voted ballots are returned. Although it may seem unusual, it is permissible.

4. Sick voter may not have ballot delivered unless request was made prior to Election Day. In order for a voter to have a ballot delivered to herself on Election Day the voter must be either sick or disabled, and the request for ballot delivery must have been made by 5:00 p.m. or the close of the clerk’s office on the day before Election Day. 17 V.S.A. § 2531. This means that a person who falls ill on Election Day will be out of luck unless she can make it to the polls, or unless she had already received an absentee or early voting ballot.

5. When voter dies after casting absentee ballot the vote still counts. If a voter who has requested an absentee ballot dies prior to Election Day, but the voted ballot has been properly returned to the town clerk with the certificate and signature completed by the voter, the ballot should be commingled and counted with all of the other ballots. The statute provides that absentee voters shall be treated as "present and voting" on Election Day. 17 V.S.A. §2550. Therefore all absentee ballots properly voted and mailed prior to the death of the voter should be counted.

6. Ballots are delivered by politically balanced pairs. Vermont law requires that absentee ballots be delivered to disabled or sick voters by politically balanced pairs of justices of the peace or other legal voters designated by the BCA. No pair shall consist of two justices from the same political party. The non-justices are picked from lists of registered voters submitted by the chairs of the town committees of political parties, and from among registered voters who in written application to the board state that they are not affiliated with any political party. No candidate or spouse, parent, or child of a candidate is eligible except justices of the peace to deliver absentee ballots unless the candidate is running unopposed. 17 V.S.A. § 2538, 2546.

7. BCA members can be added to work on an election to create party balance on the board. The town political committee or three voters may make a request to the board of civil authority to have additional members added to the board of civil authority if there are less than three members of a major party serving on the BCA. The procedures are set out in 17 V.S.A. §2143. If a written request is filed with the town or city clerk, the legislative body shall appoint from a list of names submitted by the underrepresented party to bring the number of representatives from the party up to three members. Note that these BCA members may only perform election related duties.

8. Clerk should set reasonable rules for poll watchers. Poll watchers generally come to the polls to see who has come in to vote (they have their own checklist and take notes as people check in) so that at the end of the day candidates can be sure to get their voters to the polls. Sometimes poll watchers can distract election workers which can lead to errors. Consequently we suggest that the presiding officer set reasonable rules for poll watchers. (These should be told or be given in writing to each poll watcher so they know what is expected of them.) Some suggested rules include:

• No cell phones in the polling place (for all election workers – not just poll watchers)

• No talking to voters

• No politicking in the polling place

• No talking to election workers when voters are present

• Sit or stand behind guardrail or tape-marks on floor

No one has the right to see the entrance checklist during the election except the election workers, except in towns with less than 500 voters on the checklist when a written request has been made at least 12 hours before the polls open. We also suggest that the presiding officer instruct the election workers to speak loud enough for the poll watchers to hear them, and to instruct the poll watchers to let the presiding officer know as soon as there is a problem with audibility.

9. No political literature, buttons, or other political materials can be handed out or displayed inside the polling place. 17 V.S.A.§2508. However, any voter can bring a small brochure, card, or paper into the voting booth with him or her to assist the voter in casting his votes. The voter must remove the literature and take it out of the polling place when he or she has finished voting. We strongly suggest that presiding officers arrange to have either an election official or volunteer check the voting booths frequently to make sure that no literature has been left in the booths.

10. Registered voters in Vermont shall not lose residence for voting purposes solely by living outside of the United States. Until the voter returns to reside in the United States, the voter can remain on the checklist and vote by absentee ballot in the town in which the voter last resided, regardless of his or her reason for living outside of the United States.

11. However, once a person moves back to the United States, the person must register to vote in the jurisdiction of his or her current residence. For example, if a member of the armed forces has been in Germany for 20 years and then retires and moves back to the United States, that person must register to vote in the place in which he or she now resides. If you send a challenge letter as part of your purging process and the person returns your form giving another town or state as his or her residence, you can remove that person from your checklist.

12. A citizen who wishes to be added to the checklist cannot refuse to take the voter’s oath. When the court struck down Vermont’s durational residency requirement as unconstitutional, the court found that the constitutional requirement to take the voter’s oath was fine. A voter only need to take the oath once, but each citizen must take it before being added to the checklist for the first time in Vermont. (If you move to another town in Vermont, you do not need to take the oath again.) The law was changed effective July 1, 2008, so now a voter or any person over 18 can complete and sign the form to attest that the new voter has sworn or affirmed the oath. The form must be received by your town clerk before the new voter can receive an absentee ballot or vote in person for the first time in Vermont.

1. Board should adopt a policy that outlines rules for using public buildings. It is a best practice for each legislative body, selectboard, school board, or other public body that owns buildings, to adopt a policy outlining its requirements for use of town or school property by other groups. It is constitutionally permissible for a board to prohibit any and all use by outside groups. However, it is not good policy, and may cause discrimination claims, to allow use of the buildings by certain categories or types of groups and not other groups, unless there is a real difference in the type of use being requested. For example, it is reasonable and acceptable to limit use of certain rooms or spaces to groups of less than 30, or to meetings ending not later than 9 p.m. However, it may be discriminatory to allow the boy scouts to meet in a room, but to turn down a political caucus or a religious organization.

2. BCA may raise or lower value of property when deciding tax appeal. As tax appeals are being held in a number of towns, remember that on appeals from the listers decision to the board of civil authority, the BCA may increase, decrease or sustain the appraisal. 32 V.S.A. §4409. Once the taxpayer raises the issue of the property’s valuation, the BCA must make findings to support what the BCA believes to be the correct valuation of the property, even if that amount is higher than the listers’ assessment. The same is true for further appeals to the state board of appraisers or the Superior Court.

3. Appeal from lister’s determination of tax exemption goes to Superior Court not BCA. The initial decision about whether a property qualifies for tax exemption is made by the listers. The statutes do not set out an appeal process, and do not expressly authorize the BCA to hear appeals of this issue. 32 V.S.A. Chapter 125. Although it is logical that an appeal of a determination of exemption could go to the BCA, the law does not give the BCA authority to decide tax exempt status. Rather, the statutes authorize the BCA to address issues of value and equalization. Whenever the law does not articulate an administrative appeal, the rules of civil procedure provide for an appeal to Superior Court. And, indeed, there are many cases decided by the Superior Court (and Supreme Court) involving whether a particular exemption is appropriate.

4. Property tax exemptions for volunteer fire department property must be voted at town meeting. There is no automatic tax exemption, but law permits a town to vote to exempt the property and buildings owned and used by a volunteer fire department. 32 V.S.A. §3840. The exemption can be voted for ten years the first time and thereafter for five-year periods. The Vermont Listers Handbook provides a good discussion of property tax exemptions including a chart giving the source of funding for education property tax liability for locally voted exemptions. The handbook also includes a chapter on properties that are exempt under state or federal law, and another chapter on exemptions that must be voted by the town.

5. Building rented by church for recreational program is not exempt from property tax. The law permits property owned or "kept" by a church to be exempt from local property taxes if it is used for specific purpose listed in the law. Even if rental property can be considered property "kept" by the church, the recreational center would not be exempt because the law does not exempt property held by a church for recreational uses. 32 V.S.A. § 3832(2) It is an open question whether it may be possible to exempt the property from taxation through town vote. That is because although property used for recreational purposes may be exempt by vote of the town, the use of property is generally determined by looking at the owner – not the occupant. In this case the owner is using the property as rental property, which is not exempt. 32 V.S.A. § 3832(7)

6. Property purchased by a church after April 1st is not exempt until the next tax year. Although churches and other property used for religions purposes are exempt from property tax, when a church purchases property this exemption does not begin to apply until April 1st following the purchase. The law does not provide a mechanism for changing exempt status in the middle of a tax year. Indeed, a church cannot even seek abatement of these taxes since the change in status of the owners is not a statutorily recognized reason to grant abatement. 24 V.S.A. §1535 Only when the listers prepare the next year’s grand list, the property can be listed as exempt under 32 V.S.A. §3802(4) and 3832.

7. BCA has flexibility when scheduling tax appeal hearings. 32 V.S.A. §4404 requires tax appeal hearings to start within the 14 days after the last date allowed for a notice of appeal, but it does not require that the hearing be completed on that date. This means that the BCA can use the initial hearing to set a schedule of hearings to be held at later dates. The BCA must then "continue" the hearing to each subsequent date. Note that whenever a hearing is postponed at the request of an applicant rather than convened and then continued to a date certain as described above, the board should obtain a waiver from the appellant. It is within the discretion of the BCA to allow postponement to a later date at the request of the appellant or insist on going forward on the scheduled date.

8. BCA must hold hearing even in absence of appellant. If a person bringing a tax appeal to the BCA chooses not to attend the hearing, the BCA must still hold the hearing, consider the appellant’s written submission, inspect the property and render a decision. However, if the appellant refuses to allow an inspection of the property (both interior and exterior of any structure), then the appeal will be considered withdrawn. 32 V.S.A. §4404(c) If this were to occur the applicant must be clearly told the consequence of his denial of inspection and a follow up letter indicating that the appeal was deemed withdrawn should be sent to him or her.

9. Acting zoning administrator reviews application for zoning administrator’s property. When a zoning administrator has a conflict of interest, or needs a permit for his own property, or is absent for any reason the planning commission may nominate and the selectboard can appoint an acting zoning administrator "who shall have the same duties and responsibilities as the administrative officer in the administrative officer’s absence. If an acting administrative officer position is established, or, for municipalities that establish the position of assistant administrative officer, there shall be clear policies regarding the authority of the administrative officer in relation to the acting or assistant officer." 24 V.S.A. §4448.

10. The age requirements for state representative and state senator are not clear in the Vermont Constitution. In discussions with staff at Legislative Council and the Office of the Attorney General we agree that Vermont’s constitution and statutes do not clearly articulate if a person must be 18 in order to qualified to serve as a house member or a senator. However, the law is clear that the decision is to be made by the house, for house members, and the senate, for members of the senate. 17 V.S.A.§§ 2605, 2606.

The consensus of several attorneys familiar with the General Assembly is that if a person is 18 before the beginning of the session, the House or Senate would likely find that person qualified to serve. If a person was not yet 18 in January when the session begins, it is more likely that the House or Senate would find that person not qualified to serve.

Our office does not have any authority to determine a candidate’s qualification to be on a ballot. If petitions and a consent form are properly submitted, the name will be placed on the ballot. It is possible that the House or Senate may adopt rules or that legislation may be proposed to address the age qualification issue in the future.

11. When a candidate wins and then withdraws, a vacancy is created that must be filled according to statutory procedures. In all elections for office in Vermont, including justice of the peace, if the candidate who received the most votes and is elected decides that he or she does not want to serve in the position, the candidate’s withdrawal or declination of the office 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.

12. Town clerk and town treasurer are separate offices. Unless a town’s charter provides otherwise, the position of town clerk and the position of town treasurer MUST be listed separately on the March town meeting ballot. Of course the same person may run for both offices. There has been some confusion about this rule because in many towns the same person holds both offices.

13. Terms of office for clerk and treasurer is either one or three years. The term of office for town clerk or town treasurer is one year unless the town has voted to make it a three-year term. If a town wants to switch back to a one-year term, the selectboard can place an article on the annual town meeting to change back to rescind the change to a three-year term and go back to a one-year term for either office. 17 V.S.A.§2646(2) and (3).

14. Runoff required if tie vote for justice of the peace or local official. If a recount for justice of the peace or local official ends up with a tie vote, then a runoff election must be held pursuant to 17 V.S.A. §2682(e). This happened in a justice of the peace race in 2004. The town warned a runoff election as required by the statute, and the final election result occurred on November 30, 2004, in plenty of time for the beginning of the justice of the peace term on February 1, 2005.

15. Selectboard may borrow for highway equipment without vote. The municipal financing law was amended as of July 1, 2001, so that a selectboard can now approve borrowing for purchases of highway equipment without going back to the voters for approval. 24 V.S.A. §1786(a). This is a very limited delegation of powers and can only be used for equipment to maintain or construct highways or bridges within the town.

16. Unused highway funds may be carried into the next fiscal year, but they may only be used for highway purposes. 19 V.S.A. § 312 provides that "the funds raised from town highway taxes shall not be used for any purpose other than that for which the tax was voted, subject to the provisions of this chapter. If in any year money so voted is not expended, it shall be applied for the same purpose the following year." Accordingly, unlike other town funds which may not be carried forward from year to year, a town with excess highway funds may spend them in the next year without additional voter approval.

17. Selectboard can decide to pave a road without town vote. It is the responsibility of the selectboard to construct and maintain the roads of the town. Although there is a public process involved when a board wishes to change the classification of a town highway, no public process is required (beyond a decision made during a public meeting of the board) when the board decides that a particular road should be paved. 19 V.S.A. § 304.

In the game of life it’s a good idea to have a few early losses, which relieves you
of the pressure of trying to maintain an undefeated season. — Bill Baughan

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