Voice From the Vault
by Gregory Sanford

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Opinions of Opinions

1. The deadline for major and minor party nominations for justices of the peace is now 5 p.m. on August 27, 2010. Justices may be nominated by major or minor party caucus, or if the caucus fails to meet, JPs may be nominated by major or minor party committee to be placed on the ballot for the General Election. 17 V.S.A. §2413. The Elections Division has sent a memorandum to all organized parties in Vermont outlining the procedures for nomination of justices of the peace. Generally, the major parties set a date for all town caucuses (the caucuses must meet before the first Tuesday in August). Each party can nominate a full slate of justices of the peace (as many JPs as your town has voted to elect). Historically, some town major party committees have had a gentlemen’s agreement to only nominate one-half the number of JPs but this is not legally required and is not a binding agreement. Town party committee chairs and party members should call state party officials for more information regarding nomination of justices of the peace. Whether your town party nominates by caucus or by committee, all statements of nomination of JP candidates must be received by your town clerk by 5:00 p.m. on August 27, 2010.

2. New voters may register to vote in primary until 5:00 pm on August 18. Applications to the checklist (voter registration applications) must be received by the town clerk where the applicant has his or her legal address (principal dwelling place) on or before 5 p.m. on Wednesday, August 18, 2010, in order to be able to vote in the 2010 Primary Election on August 24, 2010. 17 V.S.A. §2144 If you are assisting in a voter registration drive, please make certain that all applications are in the offices of the town clerks before this deadline.

3. Voter must register where his or her "principal dwelling place" is located. The law permits a person to vote only where he or she is domiciled (this is where their principal dwelling place is located). 17 V.S.A. §2122(b). Although a voter with more than one home can choose which home to consider as a principal dwelling place, a voter cannot claim that nonresidential property or undeveloped land is a residence for voting purposes. In addition, if a person’s property is located partly in one town and partly in another town, the person must register to vote in the town where the house or dwelling place is located.

4. Voters may sometimes remain on the checklist when they have moved from a town. Voters may remain on the checklist when they have temporarily moved out of a town so long as they have a specific intent to return. For example a person who moves to go to college or temporarily while a new home is being built or during the pendency of a divorce may stay on the voter checklist even though he or she no longer has a dwelling place in the town. In addition, registered voters who are serving in the military and U.S. citizens who live outside the United States may register and continue to vote in the jurisdiction where they last resided immediately prior to moving overseas. Even if a person was not on your checklist, if he resided in your town or city immediately prior to either joining the military or moving overseas, then that person can submit a voter registration form (application to the checklist) and request to vote by absentee ballot.

5. The clerk runs the election unless voters provide otherwise. The law provides that the town clerk is the presiding officer for elections unless the town, by previous vote at an annual meeting or by charter, has provided otherwise. 17 V.S.A. §2452(a). However, if a town clerk will be unavailable or unable to serve at a particular election, then the board of civil authority must promptly appoint a voter of the town to serve as presiding officer. Also, if the town has more than one polling place, the board of civil authority must appoint a presiding officer for each additional polling place. 17 V.S.A.§2452(b)

6. Polling places must be accessible. The law provides that each polling place must be in an accessible public place. The BCA may designate polling places in each voting district or can choose to have all districts vote at a single polling place. The law also permits the voters to designate different polling places at an annual or special meeting. 17 V.S.A. §§2501, 2502. No matter who is designating the polling places, these locations must be fully accessible to people with disabilities. In addition, it is also a best practice to have all polling places in nonsectarian buildings. Although courts in other states have upheld the use of a church all-purpose rooms for voting when absolutely no other public place is available, it is a best practice to take time between elections to find and designate a truly public place for voting.

7. Clerk should arrange a private space for voting early at the town office. The law gives voters the right to mark a ballot "conveniently and privately." 17 V.S.A. §§2502(b), 2504. Now that more voters are choosing to vote early in the town clerk’s office, private space should be provided so that the voter can vote secretly. Some clerks have set up voting booths in the office; others have purchased tabletop display boards they can take out when needed to give voters a private space to mark a ballot. A voter can also choose to take the ballot out of the office to complete and then return by 7:00 p.m. on Election Day.

8. In primary, early voter must return all three ballots. Because of the number of contested primaries on this year’s ballot we expect higher than usual voter turnout for this year’s primary election. Election officials should be sure to remind voters of the rules that apply to the return of absentee ballots to avoid having to unnecessarily treat ballots as defective. In this year’s election voters are being sent three primary ballots (a Democratic, a Progressive, and a Republican ballot). The law requires that the voter return all three ballots. The voted ballot must be returned in the voted ballot envelope. Please be sure to remind voters of this requirement! 17 V.S.A.§§ 2362, 2363.

Section 2547 of Title 17 provides that a ballot is defective and cannot be counted if "the voted ballot is not in the voted ballot envelope, or, in the case of a primary vote, the early or absentee voter has failed to return the unvoted portions of the primary ballots." The law does NOT say that the unvoted ballots must be in the unvoted envelope—ONLY that the unvoted ballots must be returned by the voter. The voted ballot must be inside the voted ballot certificate envelope. However, as long as the unvoted ballots are returned, it does not matter if the unvoted ballots are returned in either the unvoted envelope or loose in the larger envelope. In both cases, the voted ballot shall be counted. However, if the voter does not return the unvoted ballots, then the law requires that the voted ballot must be marked defective and may not be counted.

9. Ballots may be overnighted, faxed or emailed when necessary. If a military or overseas voter is concerned about the transit time for receiving and returning a ballot then the voter, a family member or friend can give the town clerk a prepaid overnight or express delivery envelope to speed delivery. A town clerk may also fax ballots to a military or overseas voter upon request along with a certificate to be affixed to a No. 10 Envelope to sign and then use to return the ballots. A town clerk may also email a PDF of the ballots to a voter along with a PDF of the certificate to be affixed to the return envelope. The voter must print the ballots, mark the ballots, complete the certificate, affix it to a No. 10 envelope, then place this in an express delivery envelope for return to the town clerk. Please contact Melanie Hodge at mhodge@sec.state.vt.us if you need a PDF of your ballots or a PDF of the certificate to email.

10. Citizens may observe or "pollwatch" on Election Day in polling places. Each party, candidate, or committee may have two representatives outside the guardrail (away from the voting booths and ballot boxes) for the purpose of observing voters check in at the entrance checklist table. 17 V.S.A. §2564. The presiding officer can set reasonable rules of conduct for observers, such as no use of cell phones and no talking when voters are present. The observers have the right to hear the name of each person seeking to vote. However, election officials do not have to do extra work for the observers. For example, if the observers leave the polling place for an hour, election officials do not have to go back and reread names of persons who voted during the observer’s absence.

11. Parties, candidates and committees may view checklist twice on Election Day in small towns. In towns with less than 500 voters on the checklist, each party, candidate, or committee may make a request in writing at least 12 hours before the opening of the polls to the board of civil authority, to have the right to view the checklist two times during polling hours. 17 V.S.A. §2572. This provision is intended to give an alternative way to ascertain who has voted in small towns where it might be difficult for a candidate or party to find a citizen who could observe or pollwatch during the entire day. The presiding officer can reasonably require that the viewing take place at times when the election workers handling the entrance checklist are not busy with voters.

12. Each town party chair is entitled to one free copy of the checklist within the 30 days prior to an election. Any person can request a copy of the checklist which must be provided at cost upon request. 17 V.S.A. §2141. Whether a campaign person or a salesman, the town checklist is a public record that can be obtained upon request and payment of the established fee. As campaigns increase activities as the elections draw nearer, you may receive more requests for checklists. You are not obligated to provide the checklist sorted by street address. Your only obligation is to provide the name and address of each voter on the checklist upon payment of the fee.

13. Exit polls may not be conducted in polling place. Exit polls, questionnaires, or surveys may only be handed out and completed outside the building containing the polling place, even if the survey is sponsored by the selectboard. 17 V.S.A.§2508. Even though it may be helpful in planning for the future, survey questions must be asked and answered outside the polling place.

14. Most candidates for office and their close relatives are excluded from helping to run the election. No candidate may serve as an election official in any election in which his or her name appears in a contested race (more than one candidate) for that office, unless the office is a town clerk, clerk-treasurer, moderator, justice of the peace, ward clerk or inspector of elections (an office in which being an election official is an integral part of the responsibilities of office). 17 V.S.A.§2456. In addition, any candidate disqualified to serve as an election official and any spouse, parent or child of such candidate, cannot deliver absentee ballots. 17 V.S.A. §2538.

15. BCA may appoint assistant election officials. If there are not going to be enough members of the board of civil authority available to staff the polling place(s), then prior to the day of the election, the board of civil authority shall appoint a sufficient number of voters to serve as assistant election officials in each polling place. 17 V.S.A. §2454. The board shall make an effort to appoint an equal number of legal voters of the town from each major party. These election officials must be sworn in before undertaking any election activity.

16. Minutes of a meeting of a public body should not attempt to be a transcript of the meeting or a complete restatement of all public discussion at the meeting. It is a better practice to keep the minutes short and sweet so that interested persons can tell what action was taken at the meeting, but do not become distracted by all of the comments or dialogue that might take place during a meeting. 1 V.S.A. §312. Too much detail can cause citizens and/or board members to spend more time at meetings debating the accuracy of the "transcriptions" and dialogue recorded in minutes of past meetings than on the new action items. 1 V.S.A. §312(b) provides a list of what must be included in minutes. In summary: record all motions whether adopted or defeated, name of the maker of the motion, number of votes on each side in a motion, names of board members present, names of active participants in the meeting. Do not record discussion or expressions of personal opinion. We suggest that you use the statutory list as your guide and do not try to capture individual statements except for motions made.

17. Town may vote to pay salary to tax collector in lieu of fees. A town may vote to pay a salary or other compensation for collection taxes in lieu of fees and commissions to the collector of taxes or collector of delinquent taxes. If this is voted at an annual meeting, the fees and commissions shall be turned in to the municipal treasurer at least once a month. 24 V.S.A. §1530.

18. The selectboard and school board may loan money to each other secured by a note signed by the selectboard or school board as the case may be. 16 V.S.A. §429. The note shall stipulate the terms and the notes shall be payable upon demand or mature within three months from the date of issue. Obviously, the boards need to have the funds available and be willing to cooperate, but we felt it was worth a reminder that this option may be helpful in some towns.

19. Selectboard may adopt own rules of procedure. Although Vermont law requires school boards to use Roberts Rules of Order, no law specifies what rules of order must be followed by selectboards. This means that boards can choose to use Roberts; they can use a modified version of Roberts; they can choose to use some other established rules of order or create their own rules.

20. We recommend that boards using Roberts use Roberts for Small Boards. Because Roberts Rules of Order was created for larger assemblies not all of the rules make sense for our municipal boards. For example, in boards with only three or five members it makes sense to allow every member to participate. The chair should not have to stay out of the discussions. The newer versions of Roberts Rules of Order include a modified set of rules that could apply to smaller boards. We recommend that municipal boards that use Roberts Rules of Order use the rules established for small boards.

21. Selectboard may shift spending. In towns where the voters vote the bottom line of the budget, we believe that the selectboard has the authority to diverge from the specific budget items contained in the budget proposal so long as it does not go over the bottom line amount appropriated by the voters. This means that if the board decides the zoning office needs a new photocopier, it might shift money from the recreation budget. Of course, the board may not use highway funds for non-highway purposes. In addition, we believe that a court would not permit the board to reduce the amounts voted to be paid as salary to the town clerk and treasurer or other elected officials, even if these amounts were incorporated into the overall budget of the town (and not separately voted.) 17 V.S.A. § 2664; 19 V.S.A. § 312.

22. Listers may not chase sales. Sales chasing occurs when listers revalue recently sold properties at the sale price and leave unsold properties alone. Spot listing violates the proportional contribution clause of the constitution and it also violates Vermont law which provides that "[t]axes shall be uniformly assessed on the lists of the persons taxed, unless otherwise provided by law." 32 V.S.A. § 4601. Spot listing violates these principles of fair taxation because it treats similar properties in the town differently simply because the property was newly sold. This is true even if the value set on sold properties is the sales price adjusted by the common level of appraisal (CLA). This is because the CLA developed for tax rate setting purposes is generally higher than the actual level of assessment in town.

23. Lister’s spouse may not sit on tax appeals. A member of the BCA who is married to a town lister may not participate in hearing any tax appeals. Remember that a tax appeal is an appeal of the listers’ decisions. It would be a conflict of interest for this BCA member to serve even if the BCA believed he or she could be impartial. 12 V.S.A. § 61. Board members must also step down from any appeal that involves a relative, by blood or marriage, who is a first cousin, niece, nephew, aunt, uncle, parent, grandparent, or sibling. Although the law is not specific, BCA members should take care to avoid the appearance of a conflict by stepping aside when former business partners, friends or enemies appeal their taxes, or any situation in which the member might not be able to render a decision squarely on the evidence and the merits, leaving all personal considerations aside.

24. BCA members who appeal their taxes are disqualified from participating in any appeal. BCA members who appeal their taxes or who have any interest in property under appeal are prohibited from serving on the board for tax appeal purposes during the year the property is under appeal. 32 V.S.A. § 4404(d). This means that if a BCA member’s spouse has a business property that is being appealed this BCA member may not participate in any of the appeals. Note that BCA members who have grieved to the listers and decided not to the appeal to the board are not disqualified from hearing tax appeals.

25. BCA members may not participate in an appeal involving a close relative or friend. Board members must step down from any appeal that involves a relative, by blood or marriage, who is a first cousin, niece, nephew, aunt, uncle, parent, grandparent, or sibling. 12 V.S.A. § 61. In addition, BCA members should avoid the appearance of a conflict by stepping aside when former business partners, friends or enemies appeal their taxes, or any situation in which the member might not be able to render a decision squarely on the evidence and the merits, leaving all personal considerations aside.

26. Public gatherings of over 2,000 require state permit. The organizers of a commercial public event or gathering expecting 2,000 or more attendees must apply for a permit from the Department of Public Safety at least 30 days before the event is held. The Department of Public Safety may grant the permit, deny the permit, or grant the permit with conditions, such as providing a bond or other financial security. If a town wants to regulate smaller assemblies, the town needs to enact local ordinances or regulations. 20 V.S.A. §§ 4501, 4502.

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Civics Behind the Scenes
by Missy Shea, Civics Education & Vote Outreach Coordinator

Election Calendar

August 1 (Sunday) Last day for political parties in towns of population more than 1,000 to publish notice of caucus to nominate candidates for justice of the peace in a newspaper having general circulation in the town (three days before caucus) 17 V.S.A. § 2413(d)

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