State of Vermont Office of the Secretary of State

In Tribute To Town Clerks

In the morning, the town clerk opens the office, and prepares for the first visitors. The vault is unlocked, lights turned on, and the work of the day begins.

All day long that office is open, until the closing hour arrives, and the clerk locks up and goes home. In all seasons, in all kinds of weather, the same ritual continues, day after day, year after year.

The records in this office stand as a testament to the office of town clerk. These volumes, from the earliest land conveyances in the town to last year’s town meeting minutes, are here preserved and in order purely and simply because a town clerk accepted the responsibility of keeping them up.

The quiet, diligent work of assembling, organizing, indexing, and preserving these records goes on every day, in between distractions. Somebody calls about a birth certificate. A lawyer comes in to do a title search. People stop by to inquire about the grand list of land they’re thinking of buying. The rhythm of the day is established by the pace of interruptions, but the clerk goes on.

Selectboard members come and go. So do planning commissioners, zoning administrators, and administrative assistants, but the clerk usually remains the same, for decades. I have seen fifty year pins awarded at ceremonies, and watched the incumbent, soon to retire, stand to the applause of other seasoned peers.

The point is not the length of service, but the constancy and loyalty to official service that makes a good clerk. Service is the whole point. Where else can you go? You can’t deny it: you come in that door for a purpose, and you leave satisfied. How often does that happen anywhere else today?

The town clerk’s office is frequently the liveliest place in town. A researcher, staring at an ancient record, hears all sorts of different sounds--shrieks of laughter, raised voices proclaiming the latest nonsense from Washington or Montpelier, the gentle cooing of everyone over a new baby.

Sometimes it’s so quiet I hear the clock ticking. Other times what’s happening in front of me is far more interesting than any deed. The stories are all interesting, the jokes only sometimes funny. I had a slobbering dog stick its face in the deed book I was using one day in Warren, and every time I go to Calais, Eva’s cats sunbathe on top of whatever volume I have open, gently licking their paws and inviting a chuck or two under the chin. Mary Lou shared her holiday cookies with me last year in Dover.

Clerks are good people. You can tell by the way they’re treated by those who stop by the office. Of course they are a source of information obtainable nowhere else, but listen to them talk to those who stop by and you begin to appreciate how many townspeople treat the clerk is a wise councilor, confidante, and very often a friend. Look at how you’ve been treated. Everything you wanted you got, instantly, with good humor and a helpful smile.

If we thought about it for even a minute, we’d have to realize that a good town clerk is worth ten times the salary we’re likely to budget for the office.

Some clerks are feeling a little down these days. They wonder whether they’re really appreciated. Look at the movements in various places to make the elective town clerk an appointive office, or places where voters deny clerks even modest increases in salary, or when the selectboard says something critical, and the clerk hears about it the next morning from a stranger, and is wounded by the treatment.

The town office can be a mighty lonely place for a clerk under fire, whether from cranky citizens or selectboards uncertain of where the line is drawn between the offices and their duties, or from the loneliness of a winter afternoon, wondering what it would have been like to live some other life than that of clerk.

The people who serve as town clerk are a special species of human being, a self-selected class of independent people whose sense of dedication to the regularity of official (and often the unofficial) side of town life is plainly inspiring. They earn our respect every day the office is open.

Tomorrow morning the town clerk’s office is opening in your town, the way it has for more than two centuries. During the day the clerk will do very much what clerks have done in that office for all those years. Think about what the town owes the clerk. Don’t you think a little gratitude is due?

1. Public Record Request For Electronic Database Is At Actual Cost. When a member of the public asks for a copy of a public record the municipality may charge its actual costs of making the copy. This rule applies whether the request is for a paper copy or an electronic copy. The selectboard of a town may set the cost for copies of public records by determining what the town spends to make the copy (electricity, paper, ink, etc . . .) after it holds a public hearing to discuss the matter. Note that the town may not add into the calculation the cost of creating the database since that is done for the benefit of the town overall, and not for the benefit of the particular individual who is requesting a copy. If a municipality does not want to calculate its own actual costs, the municipality may use the Secretary of State’s uniform schedule of charges. No matter which schedule of charges is used, this information must be posted in the town offices. 1 V.S.A. � 316(e) and 32 V.S.A. � 1671.

2. Public Agency May Require Payment In Advance For Public Records. Vermont law permits a public agency to require a member of the public to pay, in advance, for copies of public records. It would benefit the clerk to adopt and post his or her policy regarding advance payments so that people coming in for records know in advance what will be required. 1 V.S.A. � 316(c).

3. Voter Checklist Is Public Information. Voter checklists are public information. Special treatment is given to the entrance checklist in the 90-day period following an election. The public may have access to the entrance checklist during the 90-day period after an election, but only under the town clerk’s direct supervision. Thereafter, the town clerk has to file a copy of the entrance or exit checklist and preserve it as a public record for at least five years from the date of the election. This checklist must be made available to the public upon request. 17 V.S.A. � 2583(a) and 2590(e).

4. Board Of Civil Authority May Do Away With Exit Voter Checklist. As of July 1, 1999, the Board of Civil Authority can vote to not use an exist checklist. However, the entrance checklist requirement remains. The change in law is to 17 V.S.A. � 2507 -- and 17 V.S.A. � 2496 has been repealed.

5. Uniform Bill Of Sale For Mobile Home Must Show Payment Of Taxes. A uniform bill of sale for a mobile home must show that all real and personal property taxes assessed against the owner have been paid before it can be signed by the town clerk. This requirement is found in 32 V.S.A. � 5079. Note that 9 V.S.A. � 2602 sets forth what must be in the uniform bill of sale.

6. Spouse Of School Teacher May Serve On School Board. Any legal voter in a school district can be elected to the school board if the person is not regularly employed by the school district or by a school district within the same supervisory union. This means that a teacher’s husband or wife can serve on the school board. The teacher’s spouse cannot, however, vote on contracts in which the teacher has a direct or indirect interest, including teacher employment contracts. 16 V.S.A. � 557(c) and 558(a). Note that under 17 V.S.A. � 2647 a town manager, auditor or spouse of an auditor may not hold office as a town district school director, and a school director may not also be the constable, tax collector, town treasurer, lister, auditor or town agent.

7. Sewer District May Serve Areas Outside Of District. A sewer district can sell its services outside of the sewer district area. The decision to do so does not need voter approval. Instead, the district’s board must vote to do so at either a regular or special meeting. While the board can sell services outside of the district, any contract for services out of the district must comply with the district’s sewage capacity allocation ordinance. If the ordinance sets aside capacity to service district needs first, then services cannot be sold outside of the district unless there is excess capacity. 24 V.SA. � 3611(a), 3618, and 3625.

8. No Alternate Water Commissioners Allowed. There is no legal authority for voters to elect, or the selectboard to appoint alternate water commissioner. According to Vermont law the selectboard appoints three water commissioners members unless the town votes to elect them. The water commissioners may be members of the selectboard. 17 V.S.A. � 2651(b).

9. Number Of Water Commissioners Can Be Same As Selectboard. As of July 1, 1999 a town may have three water commissioners unless a town votes to elect additional selectboard members, in which case the number of water commissioners shall, at the discretion of the selectboard, be the same as the number of selectboard members. A town can elect their water commissioners by ballot; otherwise they are appointed by the selectboard. The amendments are to 17 V.S.A. � 2646(17) and 2651(b).

10. Voters Cannot Compel The Sale Of Municipal Property. The voters of a municipality cannot compel the sale of municipal real estate. Rather, the decision belongs to the selectboard. Once the selectboard decides to sell municipal real estate, it has to publish a notice of the terms of the proposed sale and then wait thirty days to see if the voters petition for a vote on the matter. In the alternative, the board may simply put the matter before the voters. Only the selectboard may decide which option to use. 24 V.S.A. � 1061.

11. Private Meeting Attended By Selectboard Is Public Meeting. A selectboard cannot attend an invitation-only meeting called by a corporation to discuss public business. A public body can only discuss public business at a meeting which is noticed and which is open to the public. Instead of going to the private meeting, the selectboard can invite the corporation to come to a selectboard meeting to discuss the public business. In the alternative, a single member of the board (or two members of a five member board) may attend the private gathering and then report back to the public body, in open session. 1 V.S.A. � 310.

12. A Town Treasurer Can Be A Village Trustee. There is no rule against a town treasurer serving as a village trustee because a village trustee cannot order a town treasurer to spend funds. In comparison, a town treasurer cannot be a selectboard member because the selectboard decides how to spend funds administered by the town treasurer. It is also prohibited under 17 V.S.A. � 2647.

13. Public Is Entitled To Speak At Open Meeting. At all open meetings, the public must be given a reasonable chance to speak on the issues under consideration. The chair of the public body may set reasonable rules to maintain order during the meeting when the public is speaking. 1 V.S.A. � 312.

14. Administrative Assistant Is Not Town Or Village Manager. A town or village can employ an administrative assistant. The administrative assistant employed by the municipality is an assistant to the selectboard or trustees and may perform only those functions specifically delegated by the board. The administrative assistant does not have the statutory authority given to town or village managers to act. This manager system can be adopted by a vote of the municipality. 24 V.S.A. � 1241.

15. School Bookkeeping Services Do Not Have To Be Bid Out Even If Over $10,000. Vermont law requires school to bid out all contracts for school building, improvements, supply, equipment, maintenance, repair or transportation service when the cost exceeds $10,000 16 V.S.A. � 559. Services such as bookkeeping do not have to be bid out even if the cost of the contract exceeds $10,000.

16. Special Fire District Meeting Called By Few. According to Vermont law a special meeting of a fire district may be called "on application of three or more voters of the district or by 5% of the voters of the district, whichever is greater." Note that an application is like a petition and must be presented to the district clerk who must verify that all who signed are voters of the district. 20 V.S.A. � 2483.

17. Listers Can Hear Grievances Even If They Have Grieved Their Own Listing – BCA Members May Not Sit On The Board If They Are Appealing Their Own Appraisal. There is always some confusion about whether listers and members of the Board of Civil Authority can hear tax appeals if they have appealed their own appraisal. Under 32 V.S.A. � 4404(d) a person who has appealed the final decision of the listers may not sit on the board of civil authority to determine appeals. This however, does not apply to listers because there is no similar law prohibiting listers from participating in the grievance process, even if they have grieved their own appraisal. Note that when a lister grieves his own listing he may not participate in any way in the decision on the matter.

18. A Quorum Of The Board Of Civil Authority Is Three Members. The board of civil authority operates with a special quorum requirement (less stringent than for other municipal boards.) For the purpose of election, a quorum of the board is made up of those members present and voting at a meeting, except that action may not be taken without the concurrence of at least three members of the board. 17 V.S.A. � 2103(5). In other matters, the act of a majority of the board of civil authority present at a meeting is treated as an act of the board. 24 V.S.A. � 801.

19. Advisory Committees Are Exempt From Quorum Rules But Not Open Meeting Law. In one town a selectboard has appointed a committee of the public to give the board advice on a number of matters. Because this advisory committee has no authority to take official action, the quorum rules found in 1 V.S.A. � 172 do not apply to this board. Note that the open meeting law will apply to this committee’s meetings. 1 V.S.A. � 310(2).

20. Board Member Who Moves Out Of Town While He Is Building His House May Remain On The Board. A selectboard or school board member is only eligible to serve on the board so long as he or she is on the voter checklist for the town. Accordingly, when a board member moves out of town it usually means that their seat becomes vacant. However, a board member who temporarily moves from town while building a new house on land in the town remains eligible to vote in that town. He or she may remain on the board, even though he or she may live out of town while the new house is being constructed. 17 V.S.A. � 2122(b).

21. It Only Takes A Majority To Pass A Bond Vote. There is a rumor going around that a super-majority vote is required to pass a bond vote. Not true. In 1969 the law was amended to say that a simple majority of those voting is sufficient. 24 V.S.A. � 1756.

22. A Taxpayer Who Wins Appeal May Not Insist On Return Of Overpayment. When a town loses a tax appeal, it does not have to immediately repay the overpayment of taxes. Rather, the balance of the taxes owed to the victorious taxpayer can be held by the town and be applied as a credit to future years’ taxes. A taxpayer who wants the town to return the money is out of luck! 32 V.S.A. � 4468.

23. A Town Officer Or School Director Can Be Fined For Not Performing His Or Her Duties. A town officer or school director who does not perform his or her duties may be fined $1000 and sent to jail. 13 V.S.A � 3006 –7.

Bianchi Revisited
(As of 6/7/99, sections II and III have been modified.)

NOTE: For the original version of "Bianchi Revisited", please see /secdesk/opinions/1999/bianchi.htm

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In 1997, the Vermont Supreme Court made a decision in a case entitled Bianchi v. Lorentz. This case established that violations of local land use regulations are a cloud on the title of property. The result of this decision was that, before any real estate could be sold, the attorneys involved in the transaction had to determine whether the property was in compliance with local zoning and subdivision regulations and permit conditions. This was not a bad result for municipalities since, when problems were discovered, the landowners were highly motivated to cure the violation so that clear title could be transferred. However, this ruling made it costly and time consuming to search title, and prevented many land transactions. This is because in some towns, municipal zoning record keeping was spotty, at best, so it was difficult to determine whether a property had received required permits.

In the 1997,legislative session, a fix was adopted that required municipal land use permits, or memoranda of those actions, to be recorded with the town clerk. It also created a statute of limitations on enforcement of certain municipal permit violations. Unfortunately, because of some exceptions to this law, the legislative fix created more confusion. Consequently, this year the legislature passed Senate Bill 144 which tries again to amend the law to create a permanent fix to the Bianchi decision. Note that the language of this bill was crafted and brought to the legislature by a committee comprised of representatives of many of the parties interested in the law, including VLCT, municipal attorneys, the Vermont Bar Association and attorneys who represent developers, realtors and banks.

Highlights of the new law are:

I. Definition of Municipal Land Use Permit. In order to clarify when the zoning office must record permits with the town clerk, the law adds definition of a "municipal land use permit" to 24 V.S.A. � 4303(24). Under the definition, a "municipal land use permit":

a zoning, subdivision, site plan, or building permit or approval which has received final approval; or
a septic or sewage system permit; or
final official minutes of meetings which relate to permits or approvals; or
a certificate of occupancy, certificate of compliance or similar certificate which relate to permits or approvals; oran amendment of any of any of the above.

*Note that the town may still choose to record a notice of a municipal land use permit instead of recording the entire permit. The requirements of what must be included in the memorandum or notice of permit have not changed. See 24 V.S.A. � 1154(c). With the definition of municipal land use permit, and the flexibility to use a notice of permit, there should be far less confusion over what should be recorded in the land records.

II. Record or Waive Enforcement. The law requires that municipal land use permits, or a notice of a permit, be recorded. Towns that fail to record a permit or a notice of permit will not be allowed to enforce violations of that permit. This law relates back to July 1, 1998.

This means that a town cannot enforce a violation of a municipal land use permit which received final approval after July 1, 1998, unless the permit or a notice of the permit was recorded in the land records of the municipality within 30 days after the permit had been issued.

III. Statute of Limitations. Under the new law, there is an absolute statute of limitation of 15 years in which to bring an enforcement action. This applies to the person who created the violation as well as any new purchasers.

IV. Summer Study Committee. The new law requires the Secretary of State’s office to convene a summer study committee. We need your help! The committee is to study the maintenance of, location of, indexing of, costs relating to, and access to the municipal land use permits issued by municipalities, and to develop and recommend a simplified and standardized process for recording permits in Vermont's land records so that those permits may be more easily, more reliably, and less expensively searched. As part of the committee’s charge, we will also investigate the use of technology to expand access, and obtain information on how to maintain, index, and make available land use permits. We would appreciate your thoughts and comments! Please contact Gregory Sanford at 828-2363.

In the next month we will be sending out a more in depth discussion of the Bianchi law and what it means for your town.

NOTICE

Please note that not everyone in your town office is sent a copy of Opinions. While we would like to be able to provide a copy to everyone, we do not have the resources to do so. Opinions is generally sent to the town clerk, selectboard chair, and town manager. We ask that you make available your copy of Opinions for other town officers who might be interested in them, including the zoning administrator, listers, treasurers, etc... Thanks!

Opinions is also available on the web at http://www.sec.state.vt.us

Tuesday, June 1, 1999

(90 days after Town Meeting Election) In towns using Australian Ballot, the town clerk may open and destroy used Town Meeting ballots and tally sheets, except as otherwise provided by law. 17 V.S.A. � 2590(d).

Tuesday, June 15, 1999

Educational Forum on
Vermont’s Campaign Finance Law.
Pavilion Auditorium, Pavilion Building
109 State Street
Montpelier, Vermont
(see flyer for more information)

Wednesday, June 30, 1999

End of fiscal year for state and school districts and for municipalities that have adopted July 1 through June 30 fiscal year calendar. 32 V.S.A. � 1 and 24 V.S.A. � 1683(b)(c).

UPCOMING WORKSHOPS

VLCT Municipal Law Center Workshops

Thursday, June 3 Zoning Basics
The LaGue Inns, Berlin

Thursday, June 10 Law Enforcement
The LaGue Inns, Berlin

Thursday, June 17 Cafeteria Plans
The LaGue Inns, Berlin

Thursday, June 24    Advanced Selectboard
                                    Training
                                    Capitol Plaza, Montpelier

OTHER VLCT Workshops and Events

Thursday, June 10 Safety & Wellness
Lincoln Inn, St. Johnsbury

SPONSORED by the

Vermont League of Cities and Towns (VLCT)
89 Main Street, Suite 4
Montpelier, VT 05602-2948

For more information, to confirm dates and locations, or to register: call the VLCT at

1-800-649-7915 or 1-802-229-9111.

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For further information, please contact Web Editor, Editor, Opinions at 802-828-2363 or email webeditor@sec.state.vt.us
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