State of Vermont Office of the Secretary of State

1. Public Library Accounts, Revisited. In February’s Opinions, we wrote that public library trustees are not in compliance with state law if they keep the money in an account controlled by the trustees and write their own checks on that account. We realize that this opinion may have caused some confusion, and we apologize. Not all public libraries in Vermont are departments of town government. Some are nonprofit corporations which, while they receive money from the town (or village), operate independently of the town or its officials. In these cases, the accounts should be handled the way the trustees decide they should be handled, without the involvement of the town treasurer.

A word of further explanation is also needed to answer questions about the role of the selectboard when a public library is a town department. Although funds collected from various sources (whether by gift, bequest, book and bake sales, grants, or town appropriation) have to be kept in the accounts overseen by the town treasurer, the library trustees have full and exclusive authority to decide how those funds are used (subject to whatever controls may have come with the vote of the town or the will or trust that directed the moneys be paid to the library). The selectboard has no role over the financial decisions of the town library. That job belongs to the trustees, whose "full power" is theirs to exercise.

2. A Town May Hold Its Australian Ballot Voting In The Same Building As Town Meeting If The Meeting Does Not Discuss The Matters Voted By Australian Ballot. In March’s Opinions we wrote that Australian Ballot voting must be held in a different building than Town Meeting because 17 V.S.A. § 2508 prohibits, "within the building containing a polling place" any "campaign literature, . . . or other political materials to be displayed, placed, handed out or allowed to remain . . . and no person distributes election materials, solicits voters, or otherwise campaigns."

We heard from many of you who have long held balloting in the same building as your meeting, but who have been very careful to not speak about matters voted on by Australian ballot. Only if Town Meeting discusses the budget and other topics that may be the subject of Australian Ballot voting must balloting take place in a separate building.

I am interested in hearing from you about whether you believe that the ban on talking about Australian Ballot items during Town Meeting (if you vote on them in the same building) depresses participation in the meeting – particularly for towns that vote their budget by Australian Ballot.

3. Listers Must Make Records Available For Public Inspection. This is the time of year when we get a lot of questions about the accessibility of lister’s cards. Some listers keep their cards in the clerk’s office so that they are available for public inspection whenever the clerk’s office is open. There is no requirement, however, that listers do this. Other listers keep their cards in a locked file in the clerk’s office or at another location.

Note that the Supreme Court has said that listers’ cards are public records, and as such, must be made available for public inspection. Matte v. Winooski, 129 Vt. 61 (1970). Because the listers are custodians of these records, it is their responsibility to make these public records available to the public at reasonable times.

4. The List Of Properties In A Town Which Are Subject To Reassessment Is A Public Record. In Vermont everything is considered a public record unless it fits into an exception to the public records act. 1 V.S.A. § 317. Because a list of properties targeted for reassessment do not fall under any of the exceptions, this is a public record.

5. A Planning Commission Member May Be A Member Of The Selectboard. In Vermont, a single individual may serve in a variety of official capacities unless the offices are listed as incompatible under 24 V.S.A. § 2646 and 2647. A planning commission member may also be a selectboard member or a spouse of a selectboard member because the law do not list these as incompatible offices. (Of course, the selectboard member should not participate in the decision to appoint his or her spouse to the board.) Note that the selectboard may, by statute, serve as non-voting members of the planning commission. 24 V.S.A. § 4322. This will not, however, preclude a member of the selectboard from being appointed or elected a voting member of the board.

6. A Selectboard Does Not Have To Use Roberts Rules For Its Meetings. There is no requirement that a selectboard use as its rules of procedure Roberts Rules of Order (note: state laws, however, require school boards to use Robert Rules). If your board chooses to use Roberts, you should use the rules for small boards. The small board rules permit the chair of the board to participate in all votes – ordinarily Roberts permits the chair to vote only to make or break a tie vote.

Remember that the purpose of rules of procedure is to ensure that meetings run in an orderly and fair manner - and not to provide individuals with an ability to create outcomes by manipulating the process. Because a municipal board may make up its own rule of procedure, if a rule of Roberts does not work for you, your board can choose to change it! It is important, however, to keep a record of your board's variations on the rules so that you can ensure consistency.

7. The Planning Commission Reviews Site Plans For Uses Other Than One And Two Family Dwellings. Sometimes a person applying for a permit for a single family dwelling or for a duplex will submit a site plan for the project along with their application. Because 24 V.S.A. § 4407(5) states that site plan review may only be required for uses other than a one and two family dwelling, this site plan should not be sent to the planning commission or development review board for formal review. This site plan may be used, however, to inform the zoning administrator about whether the side yard and set backs will be met for the project.

8. Urban Municipalities May Appoint A Planning Director Who Takes Over The Duties of The Planning Commission. In an urban municipality (population over 2500) the selectboard may create a planning department as a substitute for a planning commission. This is a very different way of doing business than communities that have a traditional planning commission. The planning director is appointed by the selectboard and is accountable to the board. The planning director performs all of the functions of the planning commission. In these communities the planning commission acts as an advisor to the planning director. See 24 V.S.A. § 4321.

9. Selectboard Meetings May Be Videotaped So Long As It Does Not Interrupt The Meeting. The open meeting law requires all meetings of a public body to be open to the public. 1 V.S.A. § 310 et seq. Although the chair of the board may make reasonable rules with respect to public participation in order to maintain control over the meeting, the law does not permit the board to prevent a member of the public from taping or videotaping a meeting if it is done without interrupting or disturbing the meeting.

10. A Planning Commission Member Should Recuse Himself From A Matter If He Acted As The Realtor For The Parcel That Is The Subject Of The Application. According to law, a member of the planning commission or zoning board may not act on a matter in which he or she has a real or financial interest. 12 V.S.A. § 61. A planning commissioner who acted as the Realtor for a parcel that is the subject of the application has a real interest in the outcome and should therefore recuse him or herself from the matter. Even if the sale took place years earlier, since the "real" interest is not linked to the financial remuneration but to the relationship the board member has with the landowner, the board member should still step down. Note that, when a member of a board recuses himself or herself from a matter this means that they do not participate in either the discussion or in the vote.

11. A Sub-committee Of A School Board Must Provide Public Notice When It Meets. Under the Open Meeting law, the definition of a public body includes any sub-committee of a board, council or commission. A school board sub-committee meeting is subject to the Open Meeting. The sub-committee may adopt a regular meeting schedule or it may warn each of its meetings as a special meeting. Special meeting must be publicly announced at least 24 hours before the meeting, with notice given to a newspaper or radio station serving the area, and to those news media that have requested to receive notice of special meetings. In addition, municipal public bodies must post notices of special meetings in or near the municipal clerk’s office and in at least two other public places in the municipality at least 24 hours before the meeting.

12. A Library Established And Maintained By A Municipality Is Subject To The Open Meeting Law. Under 22 V.S.A. § 141, a municipality may establish and maintain a public library. By doing so, the municipality has created a public library which, under the Open Meeting law, is an "instrumentality" of the municipality. As such, the library board meetings are of a public body, and the meetings must comply with the Open Meeting law.

13. Sewer Commissioners May Impose An Application Fee Without Amending The Ordinance. Sewer commissioners have the authority to impose an application fee. 24 V.S.A. § 3507. This means that an application fee can be imposed or changed without amending the sewer ordinance.

The commissioners, at a special meeting under the Open Meeting law, must adopt a resolution authorizing the application fee. Note that the fee must be reasonably related to the actual cost of the services to be provided.

14. A Mass Transit Authority Is A Public Body For The Purpose Of The Open Meeting Law. A Mass Transit Authority is "a body politic and corporate with the powers incident to a municipal corporation under the laws of the state of Vermont. 24 V.S.A. Chapter 127. This means that not only does the Authority have the benefits of a municipality, but it also carries the burdens – one of which is the need to comply with the Open Meeting law. Note that it is less clear whether a "Nonprofit Public Transit System" is subject to the open meeting law. A Nonprofit Public Transit System is defined in 24 V.S.A. § 5088 as "a domestic corporation . . . having the majority of its governing board appointed by the legislative body of the municipality or municipalities served." A good argument can be made that because a majority of the board, by law, must be appointed by the involved municipalities, that this corporation is an instrumentality of the municipalities, and that, consequently, the Open Meeting law would apply.

15. All Meetings Held In A Public Building Are Not Necessarily Public. Just because a meeting is held in a public building does not mean that the meeting is a public meeting subject to the Open Meeting law. The controlling factor is whether the meeting is a meeting of a public body. A meeting of a private club or a citizen’s group is not subject to the Open Meeting law.

16. A Member Of The Zoning Board Of Adjustment Does Not Have To Reside In The Town In Which He Or She Serves. Vermont law does not require the selectboard to appoint only residents to the Zoning Board of Adjustment. 24 V.S.A. § 4461. In contrast, 24 V.S.A. § 4322 provides that a majority of the members of the planning commission be residents of the municipality. Since the zoning board is designed as a community review board, the best practice would be to have zoning board members live in the town in which they serve. However, a person who temporarily moves out of town is not automatically disqualified from serving on the board.

17. The Selectboard May Appoint Alternates To The Zoning Board. A recent change in Vermont law gives the municipal legislative body the power to appoint alternates to the zoning board. 24 V.S.A. § 4461(b). In the event that a member of the zoning board has a conflict of interest, or is temporarily unable to serve, the selectboard may assign one of the alternates to serve on the board. Interestingly, there is no similar authorization for the appointment of planning commission members.

18. When An Elected Official Takes Office Depends On A Number of Factors. At a traditional meeting where candidates are nominated from the floor and elected by voice vote or paper ballot, an election to office becomes final immediately if the candidate is present and does not decline, or if he or she is absent but has consented to the candidacy. If the candidate is absent and has not consented to the candidacy, the election becomes final when the candidate is notified of his or her election, provided that the candidate does not immediately decline. If the town uses Australian ballot to elect its officers, when the results of the election are announced after the close of the polls, the officer is elected. Note, however, that if the officer has to take an oath prior to serving in office, he or she is not "qualified" until the oath has been taken.

19. Village Voters Vote At Town Meeting. One town with a village within its boundaries had never allowed the village voters to vote on the town highway budget. Unless a town has a governance charter with provisions which restrict village voters, village voters are qualified voters in town meeting and may vote on all articles.

20. Delinquent Tax Collector Is Paid 8% Fee Unless Voters Authorize Salary. State law provides that the delinquent tax collector can charge an eight percent penalty. 32 V.S.A. § 1674(2). Unless the voters have authorized the town to pay the delinquent tax collector a salary in lieu of fees, the eight percent penalty is the collector’s compensation. 24 V.S.A. § 1530.

Note that where the collector gets paid fees in lieu of a salary, the delinquent tax collector usually pays for the expenses of collection, such as postage and letterhead. Some lucky collectors have towns that will cover these expenses. Note that the law is not clear on either account.

21. Planning Commission Members May Be Elected. State law provides that the selectboard appoints planning commission members. As an alternative to appointment, however, a town may vote to elect its planning commissioners. Voters may petition, with five percent of the voters, to place the article on an annual or special meeting warning, or the selectboard may place the article on a warning on its own initiative. If the town chooses to elect its planning commissioners, the voters must also choose the length of term for planning commission members. The statute also specifies that terms on the planning commission be filled only as current terms expire or as vacancies occur.

22. Voters May Not Petition An Ordinance. In one town, voters decided they would petition to compel the selectboard to adopt an ordinance when the selectboard decided not to pursue the matter on its own. While the voters could submit an advisory petition, asking the selectboard to reconsider its decision, the voters cannot compel the selectboard to adopt an ordinance. 24 V.S.A. § 1972. Voters may only vote to disapprove an ordinance approved by the selectboard. 24 V.S.A. § 1973. However, if you live in a town or city with a governance charter, check your charter. Some charters permit petitioned ordinances.

23. The Selectboard May Refuse A Petition. The selectboard does not have to accept and place on the warning every petition signed by five percent of the voters. The Vermont Supreme Court has written that voters cannot compel the selectboard to hold a special town meeting for a useless, frivolous or unlawful purpose. Royalton Taxpayers Association v. Wassmansdorf, 128 Vt. 153 (1969). Before you go to the trouble of circulating a petition, make sure that the voters actually have the authority to weigh in on that particular issue.

24. Reconsideration/Zoning Bylaws. The rules governing reconsideration votes apply to a vote on zoning bylaws. This is because a zoning bylaw amendment article is a public question. A public question is "any question, issue, proposition, or referendum (whether binding or advisory) submitted or required by law to be submitted to the voters of the state or any political subdivision of the state, for a decision." 17 V.S.A. § 2103(27). The reconsideration law states, in part, "Where a petition signed by not less than five percent of the qualified voters of a municipality requesting reconsideration or rescission of a question considered or voted on at a previous annual or special meeting, the legislative body shall provide for a vote by the municipality . . .." 17 V.S.A. § 2661(b).

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