State of Vermont Office of the Secretary of State

RIGHTNESS AND WRONGNESS

Systems of right and wrong are all around us. There is a stop sign. Here is a high fiber diet. There is a bible. Here is a law book. Do this; don’t do that. Some of it is codified and enacted, and applies to everybody; that is the law. Codes of ethics on what constitutes correct behavior, on the other hand, are usually uncodified. Most of us principally rely on gut feeling to tell us how to behave (and judge how others behave). The penalty for violating such codes is not a fine or time in jail, but personal guilt, ostracism, bad feelings, or a stain on your reputation.

To codify, we write something down. We write, "This is right and this is wrong." Actually, more often we write what’s wrong. The Vermont Statutes is mostly written as a prohibition against some behavior—"You shall not drive more than 50 mph on a dirt road"--with a penalty attached to it, as if to say, "And we really mean it." Zoning bylaws are more direct. They say, "You must have at least two acres to build a house, and it must be 50 feet from the highway." But it’s the law, and it applies to everybody equally.

A great mass of advice, direction, and family and social rules form our ethical tradition, from the instructions of the parent, teacher, or boss, to the rule that the salad fork goes on the outside and the dessert fork goes on the inside. We haven’t legislated that behavior, not yet, but without its definition of proper behavior we’d be nothing more than uncivilized. From that diversity of uncodified right and wrong, culture is defined, and we disobey at our peril.

The trouble is when it isn’t written and made to apply to everybody, when somebody judges you in the wrong it’s hard to defend yourself. You can’t commit a wrong based on somebody else’s gut feeling, when it doesn’t stir anything in your own, but the accusation hangs in the air, and colors everything.

The laws on correct behavior of public officials are pretty slim. Most often the laws talk about the limits of authority and deal with particular subject matters, but avoid being comprehensive about issues of conflict of interest, for instance, or other ethical matters.

And so we get ourselves in trouble all the time, when people say, "It wasn’t right that the zoning administrator gave his sister a permit." "It was wrong of the selectboard to give the sand and gravel contract to the buddy of the chairman." "It was unfair that the one member of the ZBA I dislike the most got to sit on my conditional use permit." None of this is wrong, not in the sense that you can point to a law and say so with any certainty. This lack of specificity creates unnecessary tension in local government, as public officials are blamed for actions declared wrong only after they have occurred.

That can be changed, and it should be. Some communities have adopted ethics policies to define what is acceptable and unacceptable conduct among local officials. The impetus for the policies has come from the officials themselves, who want to know in advance where the line is drawn between official conduct and personal action, for their own protection.

Not every town has the present authority to adopt such policies, because today to do so requires special legislation. That’s the reason for the proposal of the Ethics Task Force, released last month: to enable all towns, cities, villages, and other municipalities to codify and enact ethical codes for local officials without the need for specific legislative approval.

After years of having the legislature try to find language suitable to every community, this proposal begins with the recognition that any ethical code must be adaptable to the needs of each community. Too often in Vermont what passes as a good law in one town is a bad law in another, because the conditions are different, the needs of the community are different. This proposal says a town can write and adopt its own model, to meet its experience and address its own problems, without having to use some template adopted in Montpelier for everybody.

The Ethics Task Force proposal mandates nothing. It recognizes that some communities can get along fine without any direction. It merely provides the authority for those who want such controls, and are willing to go to the effort of proposing and adopting them.

As soon as somebody mentions "ethics," somebody else gets upset. "Are you saying I’m not doing the right thing?" That’s the problem with ethics. Too often it’s all about blame, when the point really is responsibility.

In small towns, it’s inevitable that public officials will be put into positions where they have to make decisions that hurt—your tax appeal is denied; your attempt to thwart a development in a zoning challenge must fail; you do not qualify for a tax abatement. Sometimes all that hurt tends to burn and blister, until it becomes a major public infection, and nobody is believed to be trustworthy.

This is all so unnecessary, and so wasteful of scarce resources, the most notable being the wear and tear on the people who serve in local office. Too often we see good people driven out of local positions because they simply don’t feel appreciated, because life is too short to put up with the public criticism that accompanies any tough decision. Vacancies go unfilled, and good people stay in office longer than they want because the new people who should replace them refuse to serve.

Better laws on ethics may be a part of the solution. They may help restore civility in public affairs. They can give public officials an important protection against accusations of wrong based purely on the accuser’s personal beliefs. Once adopted, we will at last have a written code to use as a reference to define what constitutes appropriate behavior. Then we can fight over what’s done, without dwelling constantly on how it’s done.

The Selectboard Is Not Compelled To Hold A Special Meeting When It Receives A Petition For A Purpose Not Allowed By Statutes. A selectboard receives a petition asking for a meeting on whether a particular road should be open to snowmobiles. Although the language of 17 V.S.A. � 2643 seems to require the selectboard to put an issue to the voters whenever it receives a petition of 5% of the voters, case law makes it clear that the selectboard is only required to warn a meeting to vote on a petitioned matter if the issue presented is one which the electorate are empowered to determine. Royalton Taxpayers’ Protective Assoc., Inc. et al v. Wassmansdorf, et al, Selectmen of the Town of Royalton, 128 Vt. 153 (1969) (Not legislative intent to "compel the selectmen of a town to hold a special town meeting upon application of five percent of the voters for a useless, frivolous or unlawful purpose,") and Pominville et al v. Addison Central Supervisory Union, 154 Vt. 299 (1990). In this situation, because the statute sets out a specific method for opening a road for snowmobile traffic, the law does not empower the electorate to decide this issue by a vote at an annual or special meeting of the town.
A Town May Not Vote On A Public Question By Australian Ballot At The Same Meeting That The Voters Determine Whether To Allow Voting By Australian Ballot On Public Questions. 17 V.S.A. � 2680 (a), (d), and (e) provides that a municipality cannot use the Australian ballot system at the same election or meeting at which its voters decide that the Australian ballot shall be used. This means that to vote a question by Australian ballot a town that ordinarily votes its questions on the floor must hold two meetings. The first meeting will decide whether the town wishes to vote the issue by Australian ballot, and the second meeting will be the vote on the public question.
The Selectboard May Go Into Deliberative Session To Discuss Reclassification Of A Highway. The general rule is that a quasi-judicial board may deliberate outside of a public meeting, and its decision may be made outside of the public meeting so long as it is made in writing and is a public record. 1 V.S.A. � 312. Although at first blush the reclassification and laying out of highways may seem like an administrative task, the Vermont Supreme Court has clearly stated that "the Legislature has placed the selectmen in a quasi-judicial role to hear classification petitions..." David H. Hansen et al v. Town of Charleston, 157 Vt. 329 (1991). (See also, Dunn v. Town of Pownal, 65 Vt. 116, 119 (1893), "in laying out, altering and discontinuing highways, the functions of selectmen are more than administrative; they are largely judicial, and they proceed much after the manner of judicial bodies.") Accordingly, as the board is functioning in a quasi-judicial role, it may use deliberative session to reach consensus on the issues.
The Town Clerk Prepares Ballots For Local Elections No Later Than 20 Days Before Town Meeting. Interested citizens are starting to request absentee ballots earlier in our increasing mobile society. Although the requests can come in early, town clerks are not obligated to have the ballot ready more than 20 days before the meeting or election. So, although a voter might want to personally pick up his absentee ballot, he or she must provide an address for you to mail the ballot to him or her if he or she is leaving town more than 20 days before the election. Note that absentee ballots can only be given for Australian Ballot votes.

5. Tax Appeal Inspection Committee May Not Look At Listers Cards Or Comparable Properties. Neither the inspection committee, nor any member of the Board of Civil Authority, may consider information or evidence from sources outside of the testimony and exhibits which are submitted by a party to the appeal. Note that the only exception to this is 32 V.S.A. � 4404 which provides that an inspection committee made up of at least three members of the BCA inspects the property that is the subject of the tax appeal. The inspection committee report permits the BCA to better weigh the testimony of the listers and the appellant. The law does not permit the inspection committee to take additional testimony outside of the hearing nor examine any documents that were not presented as evidence. This is because the board of civil authority is acting in a quasi-judicial capacity, and when a trier of fact hears or reads information outside of the evidence the appellant is prejudiced by losing the opportunity to rebut or cross-examine. Brookline v. Newfane, 126 Vt. 179, 183 (1967). All ex parte (outside of the hearing) conversations raise a similar concern of lack of fairness or prejudice that can impact the appeal, even beyond the BCA.

An "Obvious Error" On A Listers Card Or Assessment May Be Corrected At Any Time, Even After Tax Appeal Period Has Passed. 32 V.S.A. � 4261 enables listers to correct an omission or "obvious error" in the grand list. A hypothetical "obvious error" is if listers transpose data for two neighboring lots. A mistake of this type is not a difference of opinion, but rather, as the statute puts it, an "obvious error". If the listers agree that an obvious error has been made it can correct the problem with approval of the selectboard. If the listers do not believe an obvious error has been made the taxpayer may use the ordinary appeal process to try to rectify the matter.
April 1^st Assessment Date Might Not Mark The Beginning Of The "Tax Year". The "tax year" question comes up every year; real estate attorneys involved in prorating taxes for closings debate with each other and clerks. As this office so carefully stated in the past, the "tax year" is a concept that varies depending on what interests the questioner has in the answer. 27 V.S.A. � 309(a) provides direction to attorneys for prorating taxes if they fail to agree on a proration on some other basis, to use the 12-month period following the April 1 assessment date in which the sale is consummated. This was a 12-month period selected to give certainty to proration, and does not create a "tax year". In fact, section 309(b) clearly states that the section "shall not abridge or affect any other provisions of Part 2 of Title 32 relating to the assessment of property taxes." For tax assessment and collection purposes, April 1 is the day on which appraisals are presumptively made, and no more and no less. Town officials more frequently use the term "tax year" to mean their fiscal year, which is either the calendar year, or another fiscal year set by the voters at annual meeting (most frequently July 1 to June 30, but it may be otherwise). See 24 V.S.A. � 1683(c). See also, A Book of Opinions, page 624,625.
Nonprofit Corporation Must Own Land To Be Exempt From Property Taxes. Under 32 V.S.A. � 3802(4), real estate used for public, pious or charitable uses is exempt from taxation. However, under 32 V.S.A. � 3832(7), the same real estate is not exempt if the property is used primarily for health or recreational purposes, unless the town votes otherwise. To qualify for the exemption by town vote, the owner of the property must be the same as the user of the property. This means that a charity that leases real estate, but does not own it, cannot qualify for the property tax exemption.

9. No Requirement To Include A Town Number On Property Transfer Return. The bottom portion of the Vermont Property Transfer Tax Return is completed by the town or city clerk. There is a box at the bottom right hand side of the clerk’s portion for the "Town Number." Typically, the number in the box is a combination of the year and the sequential number of the return. For example, 99-10 would mean the tenth return received in 1999. This portion of the form is there for the clerk’s convenience, and there is no legal requirement that the clerk insert a number in the Town Number box.

99-10

Town Agent Is Not Part of BCA Tax Appeal Deliberation. The town agent is given notice of tax appeals to be ready to defend or prosecute an appeal from the BCA. Usually, the town agent will attend the hearings, but the town agent does not have to since he or she can perform the agent job duties with the information made available from the hearing. Because the hearing is a "quasi-judicial" proceeding, the BCA can make its decisions in private. This is allowed under the open meeting law as a "deliberative session." If the BCA chooses to deliberate in private, then the public is excluded, including the town agent. Of course, the BCA may choose to deliberate in open session in which case any member of the public, including the town agent, may be present.

11. Voter Can Have Name Removed From Checklist. While the BCA is responsible for additions to the voter checklist, any voter can have his or her name removed from the voter checklist. All it takes is for the person to send a letter to the town clerk asking that his or her name be stricken from the checklist. 17 V.S.A. � 2150. If people are made aware of this at town meeting, perhaps those who move would remember to write to have their names removed and thereby help avoid voter checklist "clutter." In addition, some clerks send a letter to voters who have moved from town, reminding them to register in their new town and asking that they request removal from the checklist if they are no longer residing in the town.

Selectboard Sets Town Employee Pay Raises If Voters Do Not. Town voters may choose to fix the amount of compensation to be paid to its town employees. When the town voters do not do so, the selectboard determines how much to pay its employees within the general amount set by the voters in the town budget for employee salaries. Deciding how much to pay employees includes deciding which employees receive pay raises, and how much of a pay raise. Because the selectboard is authorized to make these decisions, they cannot be overturned by a special town meeting.
Motion Fails Without Majority Of Board Vote. Unless otherwise required, when authority is given to three or more persons, the concurrence of a majority of the total number is required to pass a motion, and not just a majority of a quorum. 1 V.S.A. � 172. For example, a five-member board can act only if the motion proposing the action receives at least three affirmative votes. Anything less, and the motion fails. If the motion is to grant a permit, for example a zoning permit, and it does not receive enough votes, the motion fails and the permit application is denied. Note that the Vermont courts have held that even if the motion is in the negative ("shall we deny the permit?") if a majority of the board does not vote to approve a permit it shall not be granted.
Public Meetings Are For Public Business. Under the open meeting law, a public meeting occurs when a quorum of the public body meets to discuss public business. If a majority of the members of a board want to meet for a social occasion because, in addition to being board members, they are friends, they can do so without it being an open meeting. As long as public business is not discussed, a quorum of a public board may be together without complying with the open meeting law. For example, a majority of the members of a selectboard can eat breakfast together as friends without it being a public meeting as long as they don’t discuss town business over their morning coffee.

15. Electorate May Petition For Special Meeting To Fill A Vacancy. According to law, a vacancy in local office is filled by the selectboard after notice of the vacancy is posted. 24 V.S.A. � 961. The law also allows the voters to petition to fill a vacancy. Accordingly, if the selectboard fails to act to fill a vacancy "forthwith by appointment in writing," as required by law, the voters may petition the board (with the petition signed by 5% of the voters) requesting a special meeting to fill the vacancy. See 24 V.S.A. � 962, 963 and 17 V.S.A. � 2643.

There Is No Statutory "Deadline" For A Town Clerk To Record A Deed. Although there are no statutory deadlines for recording a deed presented to the clerk, timely recording of documents is still a very important duty of the town clerk. The law provides a statutory remedy for damages that may accrue to a person by the neglect or default of the town clerk in 24 V.S.A. � 834. In light of the increase in the numbers of documents presented for filing in some town offices around the state, especially in light of the Bianchi decision and recent legislation, clerks who routinely get behind in recording must nevertheless log in the receipt of the deeds and other instruments received for recording so that it may be dated according to the day it was received in the office.
Adoption Of New Town Plan Does Not Invalidate Existing Zoning Bylaw. By statute, zoning bylaws have "the purpose of implementing the [town] plan, and shall be in accord with the policies set forth therein." 24 V.S.A. � 4401(a). While the court has recognized that zoning bylaws may vary from the plan because a town may be implementing the "lofty goals" of the plan slowly, they are nevertheless supposed to implement or reflect the town plan. A town plan is valid for five years. 24 V.S.A. � 4387. While the town plan expires after five years, unless re-adopted, a zoning bylaw remains in effect until amended or repealed. A zoning bylaw will never expire simply due to the passage of time or the adoption of a new town plan.
Zoning Bylaws May Not Be Useful In Act 250 Proceedings. Under Criterion 10 of Act 250, a development must comply with the town plan. When the town plan is ambiguous as to whether a development is allowed, Act 250 relies on the zoning bylaws as the implementation of the town plan. In a recent decision, the Environmental Board rejected the consideration of a zoning bylaw because it predated the town plan by sixteen years. This means that if the zoning bylaws are out-of-date with the town plan, then the zoning bylaws will be of no use in Act 250. Re: John A. Russell Corporation and Crushed Rock, Inc., Findings of Fact, Conclusions of Law and Order #1R0489-6-EB (Aug. 19, 1999).
A Non-resident May Serve On A Planning Commission Unless There Is A Local Charter Provision That Requires Residency To Serve. 24 V.S.A. � 4322 states that "at least a majority of the members of a planning commission shall be residents of the municipality." This means that a non-resident may be appointed to serve on the planning commission.
The Board of Adjustment May Reopen A Hearing In Order To Receive New Evidence. In one town, parties to a zoning board hearing discover new evidence that they would like to present to the board five days after the close of evidence. Although there is no statutory language addressing this issue, the Vermont Supreme Court has determined that a zoning board has discretion to reopen a hearing for additional evidence during the period before the written decision is issued, and within the 45 day deemed approval period. Virginia Nash v. Warren Zoning Board of Adjustment, 153 Vt. 108.
A Planning Commission May Propose A Series Of Amendments To Its Zoning Regulations Or Other Bylaws Rather Than Including All Of The Proposed Changes In One Amendment. In situations where the planning commission anticipates that one or more proposed changes may be highly controversial and may be rejected by the legislative body or voters, a planning commission might choose to put the majority of its "housekeeping" or non-controversial proposed changes into one amendment and use a separate amendment for each change which may be controversial. This will help avoid the defeat of the non-controversial changes as an unintended consequence of grouping all of the changes together. Note however, all of the requirements of 24 V.S.A. � 4403(a) through (f) must be met for each proposed amendment.
Unless A Municipality Has Adopted The Municipal Administrative Procedure Act, There Is No Requirement To Electronically Record Zoning Board Of Adjustment Hearings. Our general zoning law does not require the recording of zoning board hearings. However, if a town by its selectboard or the voters has adopted the Municipal Administrative Procedures Act for the zoning board hearing, then 24 V.S.A. � 1205(c) requires that the presiding officer "cause the proceeding to be recorded." Note, however, that a party or any member of the audience should be permitted to record a proceeding consistent with the spirit and intent of our open meeting law (so long as the recording can be done without interrupting the proceeding.)
Out-of-State Mobile Home Can Be Brought Into Vermont. To move a mobile home over Vermont highways a person must have a mobile home uniform bill of sale signed by the town clerk of the town in which the mobile home was located on the day of the move. 9 V.S.A. � 2602. If a person brings in a mobile home from out-of-state, the person will not have a Vermont bill of sale because the mobile home has never been in Vermont. Instead, someone who brings in a mobile home from out-of-state should contact the Department of Motor Vehicles to obtain an oversize/overweight single trip permit.

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