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1. CANDIDATE’S WITHDRAWL AFTER ELECTION CREATES VACANCY. In all elections (including Justice of the Peace) if a candidate is elected and then decides that he or she does not want to serve in the position, this 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.
   
2. CANDIDATE’S DEATH CREATES VACANCY., If a candidate dies after his or her name is on the printed ballot, and that candidate receives the highest number of votes, the deceased person is the winner. However, the death then creates a vacancy that must be filled according to statutory procedures.
   
3. VOTED ABSENTEE BALLOT COUNTS EVEN AFTER VOTER DIES. If a voter who has requested an absentee ballot dies prior to election day, but after the voted ballot has been properly returned to the town clerk with the Certificate and signature completed by the voter, the ballot must 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). All absentee ballots properly returned should be counted.
   
4. WRITE-IN CANDIDATES CAN WIN. In any General Election race in which no candidate name appears on the ballot, the person with the highest number of write-in votes is declared the winner. There is no special rule for number of votes that must be received. So if there are only four names printed on your ballot for Justice of the Peace, and your town “votes for not more than five”, then the person who has the most write-in votes for Justice of the Peace is elected to the fifth Justice of the Peace position. Don’t be confused by the rules for the Primary election (see 17 V.S.A. § 2370—at least 50% of the signatures required on a primary petition for that office) or for local municipal elections [see 17 V.S.A. § 2682 – at least 30 or the votes of 1% of the checklist whichever is less).
   
5. CHECKLISTS MAY BE PURGED. We have now concluded the second general election after the changes to Title 17 which require Boards of Civil Authority to wait to remove names from the checklist of persons who have been notified in writing pursuant to 17 V.S.A. § 2150. Therefore, for all NOTICES mailed prior to the 1998 general elections, all of those persons who did not respond to the First Class Notice as described in section 2150 (d)(3) asking the voter to verify eligibility to vote or giving the Town permission to remove the name, you can now have the Board of Civil Authority meet to remove those names. For notices sent between November 8, 1998 and November 6, 2000, you must wait until after the 2002 General Election.
   
6. VOTER CHECKLIST IS A PUBLIC RECORD.  The voter checklist is a public record. This means that our law permits politicians, political groups, and marketers to use the list however they want - including, to send mail to the voters of a town. 1 V.S.A. § 317(b). People who receive unwanted mail solicitations should feel free to ask the sender to take them off of their list for future mailings.
   
7. SITE PLANS DECISIONS MUST BE MADE WITHIN 60 DAYS. 24 V.S.A. § 4407 provides that the development review board or planning commission must act to approve or disapprove a site plan within 60 days after the date upon which it receives the proposed plan. The failure to so act within such period shall be deemed an approval. However, the issue of what is required for a board to “receive a proposed plan” is an open question. This is because there is no case law that directly addresses the issue. However, given court precedent on other similar issues, it is a safe bet to treat the site plan as “received” as soon as a person with authority – like the clerk of the board – is in receipt of the document. This is certainly the conservative interpretation and best safeguards the intent of the legislature to ensure that site plan approvals are speedily decided.
   
8. PLANNING COMMISSION IS SUBJECT TO THE OPEN MEETING LAW. The planning commission is no different than other public bodies with respect to the requirements of the open meeting law. 1 V.S.A. § 310. If the board wants to go into "executive session" it must specify which exception applies and then move and vote to go into executive session. However, because the planning commission is a "quasi-judicial" bodys it may also go into a deliberative session to make decisions on permits, subdivisions, etc. A deliberative session is not an open meeting and does not need to be warned. In addition, so long as the decision is made in writing, it does not have to be adopted in open meeting (as is required with executive sessions.) 1 V.S.A. § 312(e).
   
9. ZONING BOARD CHAIR MAY APPEAL PLANNING COMMISSION DECISION IF INTERESTED PARTY. In one town the chair of the planning commission is an interested party who is appealing a zoning board decision. A person who serves on a board does not give up his or her rights to participate in matters before his or her own board or other boards. However, 12 V.S.A. § 61 prohibits acting in a quasi-judicial matter when a board member has a conflict of interest. This means that the board member may not decide his/her own case and thereforemust recuse himself when the matter comes before the zoning board.
   
10. SELECTBOARD MEMBER MAY SERVE ON BOARD OF ADJUSTMENT. There is no prohibition against a selectboard member serving on the board of adjustment or planning commission. A board member who does this, however, should be sensitive to possible conflicts of interests and must be prepared to recuse him or herself in particular situations involving a conflict or the appearance of a conflict. The goal is to maintain public confidence in our public institutions, so a member of multiple boards must take extra care to avoid the appearance of impropriety. Note that the selectboard already serves on the commission as an “ex officio“ (non-voting) member. The selectboard member must be appointed or elected to a voting seat on the board.
    
11. NONRESIDENT MAY SERVE ON THE ZONING BOARD. Nothing in Vermont law requires members of the zoning board to be residents of the town in which they are serving. While this is unusual, the lack of residency requirements will permit the selectboard to appoint board members who may have their residency in another town or state but who own property in the town. 24 V.S.A. § 4461.
    
12. MAJORITY OF PLANNING COMMISSIONERS MUST BE RESIDENTS. 24 V.S.A. § 4322 provides that “at least a majority of the members of a planning commission shall be residents of the municipality.”
    
13. SCHOOL MODERATOR WHO CANNOT ATTENDED SPECIAL MEETINGS DOES NOT HAVE TO RESIGN. A school moderator does not have to resign when she is unable to attend a special meeting. Rather, 16 V.S.A. § 493 provides that in the moderator’s absence the voters may elect a moderator pro tempore. It is polite to give the school board advance notice so that someone could come prepared to moderate.
    
14. VILLAGE CANNOT CONTRACT WITH TOWN TO COLLECT DELINQUENT TAXES. If the Village has an elected delinquent tax collector, that is the only person who has legal authority to collect the delinquent taxes for the village. The village trustees cannot shift this responsibility to the town by contract. However, if the town’s delinquent tax collector is also a resident of the village, the same person can serve in both capacities.
    
15. SELECTBOARD MAY FILL VACANCY IF DELINQUENT TAX COLLECTOR BECOMES INELIGABLE TO SERVE. If the tax collector has moved out of town he or she becomes ineligible to serve since one must be a voter in the town in which he or she serves. This ineligibility creates a vacancy that must be filled by the selectboard. 24 V.S.A. § 961 provides that “ When a town officer resigns his or her office, or has been removed therefrom, or dies, or becomes insane or removes from town, such office shall become vacant. Notice of this vacancy shall be posted by the legislative body in at least two public places in the town, and in and near the town clerk's office, within 10 days of the creation of the . . . finish the quote”
    
16. TOWN TREASURER CANNOT RESIGN AS SCHOOL TREASURER. 16 V.S.A § 426 provides that “the town treasurer shall be treasurer of the town school district unless, by vote of the town school district a town school district treasurer is elected.” This means that the treasurer cannot decide to resign as school treasurer – but remain town treasurer. Unless the school district elects a treasurer, the town treasurer must perform the school treasurer duties.
    
17. INVESTMENT OF FUNDS IS A JOINT RESPONSIBILITY. While the treasurer has control over the accounts of the town, how and where to invest the money (including decisions as to what bank to keep the town accounts in) are a joint responsibility of the treasurer and the selectboard. 24 V.S.A. § 1571(b) provides that “moneys received by the town treasurer on behalf of the town may be invested and reinvested by the treasurer with the approval of the legislative body.”
    
18. SCHOOL TREASURER IS NOT REQUIRED TO TURN OVER RECORD-KEEPING TO THE SUPERVISORY UNION. 16 V.S.A. § 426 sets out the school treasurer duties and gives the treasurer discretion (and indeed, the obligation) to ensure that only the treasurer or the assistant treasurer sign school district checks. As an elected official the treasurer is accountable, first and foremost, to the taxpayers. On the other hand, with the many employees that the school district oversees and the many towns involved in the supervisory union it is not unreasonable for the district to want a unified financial management system. It is a good idea for treasurers to work with the supervisory unions to see how to accommodate them if possible.
    
19. VOTERS CAN ELECT TO SPEND DESIGNATED FUNDS IN A DIFFERENT MANNER THAN ORIGINALLY VOTED. 24 V.S.A. § 2804 provides that at an annual or special meeting, a municipality may establish a reserve fund to be under the control and direction of the legislative branch of the municipality. The reserve fund must be kept in a separate account and invested as are other public funds and “may be expended for such purposes for which established, or when authorized by a majority of the voters present and voting at an annual or special meeting duly warned, for other purposes.”
    
20. ADVISORY BOARD DOES NOT HAVE TO FOLLOW QUORUM RULES. Vermont’s quorum rule can be found in 1 V.S.A. § 172. This law provides that "when joint authority is given to three or more, the concurrence of a majority of such number shall be sufficient and shall be required in its exercise." Because an advisory board is not given any authority – rather, by definition it is only providing a recommendation to the board who has the authority to act – this quorum requirement will not apply. This means that unless the board who creates the advisory committee instructs otherwise, no quorum rule will apply.
    
21. SELECTBOARD MAY SET WEBSITE POLICY. In one town the local church requested to have their church listed on the municipalities web page. The selectboard may set a reasonable policy. If the web site is a public forum that any business, service or entity in town can get linked to or listed on then including the church is fine. Otherwise, the board should carefully consider what standards it will use to determine whether a local business, service or association can be listed on the town’s web page.
    
22. CRECHČS, MENORAHS AND HOLIDAY DISPLAYS. As the holiday season comes upon us it is important to remember a few rules. Our constitution prohibits state endorsement of a particular religion. However, insofar as public property is a public forum the town may not discriminate on the basis of religion. As a practical matter this means that if the town allows community members to erect displays on town property it may not prohibit religious groups from erecting displays.

• A municipality that wishes to erect a holiday display cannot imply state endorsement of a particular religion. The municipality should avoid displays that include religious symbols and take care not to offend members of the community who are not of the dominant religious faith or who are not religious.
  
  
• If the town permits groups to erect displays on government property that are left there for a period of time, it must treat holiday displays in the same manner. Note that there is nothing in the law that requires a local government to allow unattended displays on public property. It is reasonable to require the group to comply with reasonably safety measures and to include a sign stating the identity of the group or individual who has put up the display. This will help prevent confusion on the part of the public about whether the message of the display is the government's message.

For interesting case law on these issues, see Lemon v. Kurtzman, 403 U.S. 602 (1971); Lynch v. Donnelly, 465 U.S. 668 (1984); Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573 (1989); Chabad-Lubavitch of Georgia v. Miller, 5 F.3d 1383 (11th Cir. 1993).

In our monthly Opinions we provide what we believe the law requires base upon our legal judgment, year of observing Vermont's local government practices, and Vermont court decisions. This information is intended as a reference guide. This information is not intended to replace the advice of legal counsel.

10,000 Vermont Students Cast Ballots On Election Day Students Vote Gore and Dean Yesterday over 10,000 students in Vermont cast their ballots as part of the new Kids Voting Vermont Program. The results of those elections are in, and there are a few surprises! In the Presidential election, students picked Al Gore with 48 percent of the vote over George Bush with 43 percent of the vote. In the Race for United States Senate, Jim Jeffords was the students’ pick with 45 percent of the vote over Ed Flanagan with 33 percent of the vote.

In a surprising result in the race for Governor, students picked Howard Dean by a wide margin with 52 percent of the vote over Ruth Dwyer with 29 percent of the vote. Anthony Pollina outperformed expectations by receiving 10 percent of the vote. Other statewide races had students picking Doug Racine for Lieutenant Governor, Jim Douglas for State Treasurer, Deb Markowitz for Secretary of State, Elizabeth Ready for Auditor of Accounts and Bill Sorrell for Attorney General. These results reflect the returns of 85 percent of the Kids Voting Vermont communities. Of the 15,000 students that participated in the Kids Voting curriculum in their schools, 67 percent cast ballots on Election Day. The chart below provides additional information on the results from Kids Voting Communities:

Community	President	U.S. Senator	U.S. Congressman	Governor	Other
Barton	Bush - 62 Gore - 29 Other - 9	Flanagan – 28 Jeffords – 32 Other - 40	Diamondstone - 10 Kerin – 16 Sanders - 34 Other - 40	Dean - 21 Dwyer - 56 Pollina - 10 Other - 13
Belvidere *	Bush - Gore - Other -	Flanagan – Jeffords – Other -	Diamondstone - Kerin – Sanders - Other -	Dean - Dwyer - Pollina - Other -
Bennington	Bush - 43 Gore -48 Other - 9	Flanagan –29 Jeffords – 39 Other -32	Diamondstone - 12 Kerin – 19 Sanders - 44 Other - 25	Dean -46 Dwyer -38 Pollina -5 Other -11
Blue Mtn Union School	Bush - 81 Gore -19 Other - 0	Flanagan – Jeffords – Other -	Diamondstone - Kerin – Sanders - Other -	Dean -56 Dwyer -44 Pollina -0 Other –0
Burlington CP Smith Mater Christi	Bush - 53 Gore - 46 Other - 1	Flanagan – 45 Jeffords – 33 Other - 22	Diamondstone - 12 Kerin – 27 Sanders - 49 Other - 12	Dean - 60 Dwyer - 29 Pollina - 8 Other - 3
Castleton	Bush - 64 Gore -28 Other - 8	Flanagan –25 Jeffords – 35 Other -40	Diamondstone - 12 Kerin – 26 Sanders - 26 Other - 36	Dean -40 Dwyer -28 Pollina -6 Other -26
Charlotte	Bush - 33 Gore - 55 Other - 12	Flanagan – 23 Jeffords – 71 Other - 6	Diamondstone - 6 Kerin – 14 Sanders - 66 Other - 14	Dean - 72 Dwyer - 19 Pollina - 5 Other - 4
East Haven	Bush - 78 Gore - 22 Other -	Flanagan – 24 Jeffords – 19 Other - 57	Diamondstone - 23 Kerin – 19 Sanders - 29 Other - 29	Dean - 19 Dwyer – 44 Pollina - 30 Other - 7
East Montpelier	Bush - 32 Gore - 62 Other - 6	Flanagan – 28 Jeffords – 37 Other - 35	Diamondstone - 12 Kerin - 19 Sanders - 38 Other – 31	Dean - 49 Dwyer - 24 Pollina - 17 Other - 10
Grand Isle	Bush -52 Gore -42 Other - 6	Flanagan –42 Jeffords – 38 Other -20	Diamondstone - 9 Kerin – 30 Sanders - 42 Other - 19	Dean -56 Dwyer -31 Pollina -8 Other –5
Guilford*	Bush - Gore - Other -	Flanagan – Jeffords – Other -	Diamondstone - Kerin – Sanders - Other -	Dean - Dwyer - Pollina - Other -
Montpelier	Bush - 23 Gore - 58 Other - 19	Flanagan – 44 Jeffords – 45 Other - 12	Diamondstone - 10 Kerin – 8 Sanders - 68 Other - 14	Dean - 62 Dwyer - 10 Pollina - 21 Other - 7
Newbury	Bush - 58 Gore -38 Other - 4	Flanagan – 25 Jeffords – 38 Other - 37	Diamondstone - 19 Kerin – 19 Sanders - 38 Other - 24	Dean - 44 Dwyer -44 Pollina -2 Other -10
Peacham	Bush - 28 Gore -68 Other - 4	Flanagan –36 Jeffords – 46 Other -18	Diamondstone - 14 Kerin – 28 Sanders - 41 Other - 17	Dean -51 Dwyer -28 Pollina -18 Other -3
Pittsford*	Bush - Gore - Other -	Flanagan – Jeffords – Other -	Diamondstone - Kerin – Sanders - Other -	Dean - Dwyer - Pollina - Other -
Randolph	Bush - 47 Gore -53 Other - 0	Flanagan –0 Jeffords – 0 Other –0	Diamondstone - 0 Kerin – 0 Sanders -0 Other - 0	Dean -0 Dwyer -0 Pollina -0 Other -0
Richmond	Bush - 40 Gore -49 Other - 11	Flanagan –44 Jeffords – 35 Other -21	Diamondstone - 12 Kerin – 16 Sanders - 48 Other - 24	Dean -61 Dwyer -26 Pollina -7 Other -6
Roxbury	Bush -55 Gore -42 Other - 3	Flanagan –40 Jeffords – 17 Other -43	Diamondstone - 5 Kerin – 29 Sanders - 24 Other - 42	Dean -38 Dwyer -40 Pollina -7 Other -15
Rutland City	Bush - 44 Gore -46 Other - 10	Flanagan –25 Jeffords – 48 Other -27	Diamondstone -6 Kerin – 24 Sanders - 44 Other - 26	Dean -48 Dwyer -32 Pollina -7 Other -13
Shelburne	Bush - 36 Gore -56 Other - 8	Flanagan –34 Jeffords – 56 Other -10	Diamondstone - 10 Kerin – 19 Sanders - 56 Other - 15	Dean -72 Dwyer -20 Pollina -6 Other -2
Sherburne	Bush - 59 Gore -37 Other - 4	Flanagan –35 Jeffords – 65 Other -0	Diamondstone - 29 Kerin – 42 Sanders - 29 Other - 0	Dean -25 Dwyer -64 Pollina -11 Other -0
St. Albans City -Including BFA	Bush - 43 Gore -40 Other - 17	Flanagan –38 Jeffords – 40 Other -22	Diamondstone - 9 Kerin – 17 Sanders - 55 Other - 19	Dean -49 Dwyer -31 Pollina -11 Other -9
St. Albans Town	Bush - 55 Gore -41 Other - 4	Flanagan –36 Jeffords – 47 Other -17	Diamondstone - 11 Kerin – 17 Sanders - 50 Other - 23	Dean -44 Dwyer -42 Pollina -10 Other -4
Starksboro*	Bush - Gore - Other -	Flanagan – Jeffords – Other -	Diamondstone - Kerin – Sanders - Other -	Dean - Dwyer - Pollina - Other -
Stockbridge	Bush - 32 Gore -61 Other - 7	Flanagan –18 Jeffords – 30 Other -52	Diamondstone - 26 Kerin – 12 Sanders - 18 Other - 44	Dean -42 Dwyer -26 Pollina -5 Other -26
Wallingford*	Bush - Gore - Other -	Flanagan – Jeffords – Other -	Diamondstone - Kerin – Sanders - Other -	Dean - Dwyer - Pollina - Other -
West Burke	Bush - 33 Gore -47 Other - 20	Flanagan –38 Jeffords – 31 Other -31	Diamondstone - 19 Kerin – 17 Sanders - 21 Other - 43	Dean -38 Dwyer -40 Pollina -8 Other -12
West Pawlet	Bush - 59 Gore -34 Other - 7	Flanagan –39 Jeffords – 32 Other -29	Diamondstone -32 Kerin – 25 Sanders - 7 Other - 36	Dean -48 Dwyer -27 Pollina -22 Other -3
West Rutland	Bush - 52 Gore -39 Other - 9	Flanagan –23 Jeffords – 42 Other -35	Diamondstone - 9 Kerin – 17 Sanders - 48 Other - 26	Dean -39 Dwyer -34 Pollina -6 Other -21
Williston	Bush - 41 Gore -53 Other - 6	Flanagan –43 Jeffords – 42 Other -15	Diamondstone - 21 Kerin – 15 Sanders - 50 Other - 14	Dean -52 Dwyer -23 Pollina -23 Other -2

 A round of applause for the Kids Voting Vermont Board Members! A special thanks to Caroline Dwyer, Executive Director; Margaret Picard, South Burlington City Clerk; and Jayne Pratt, West Rutland Town Clerk!

Kids Voting Vermont Results
Opinions    Volume 2  Number 12    December 2000
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FRIDAY 1 Last day to pay property taxes in towns that voted to collect interest on overdue taxes. 32 V.S.A. § 5136(a). THURSDAY 14 Last day for Listers to add omitted inventory to tax roles. 32 V.S.A. § 4086. MONDAY 25 Christmas Day. 1 V.S.A. § 371.	TUESDAY 26  (70 days before Town Meeting) First day to warn the first public hearing if a charter adoption, amendment or repeal is to be voted on at Town Meeting. 17 V.S.A. § § 2641(a), 2645(a). SATURDAY 30 Last day for listers to correct real or personal estate omission or obvious error in grand list, with approval of selectboard. 32 V.S.A. § 4261.  SUNDAY 31 Town fiscal l year ends, unless voted otherwise. 24 V.S.A. § 1683[c].
Looking Ahead to January...
MONDAY 1 New Years Day 1 V.S.A. § 371. WEDNESDAY 3 (First Wednesday after the first Monday of January) Legislature reconvenes. Vt. Constitution Ch. 2, § 7. FRIDAY 5 (60 days before Town Meeting) Last day to warn the first public hearing if a charter adoption, amendment or repeal is to be voted at Town Meeting. 17 V.S.A. § § 2641(a), 2645(a)(6).	MONDAY 15 Martin Luther King, Jr.’s Birthday 1 V.S.A. § 371. THURSDAY 25 State Withholding Tax Return is due (actual date by which return must be postmarked is shown on printed return) if reporting less than $600.00 per quarter; more than $600.00 requires a monthly report. 32 V.S.A. § 5842.

December Calendar of Events
Opinions    Volume 2  Number 12    December 2000
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