|VERMONT SECRETARY OF STATE - Jim Condos|
|State of Vermont
Office of the
Secretary of State
Volume 2 Number 2
|Table of Contents|
February is a busy month in Vermont's
town offices. Everyone is scrambling to get ready for town meeting.
The warning is set, ballots printed, the BCA must meet and go over
the checklist one last time. In all the busyness it is easy to
forget that town meeting is not just budgets and ballots, but it is
Town meeting is about the people who make up the town. Those who have lived in the town for generations - and those who may have just moved here from another community, or another state. At town meeting we get to see neighbors we may not have run into since the last farmer's market in the fall - or maybe even the last town meeting. . It is a time to welcome newcomers who are coming to town meeting, perhaps for the very first time.
We also note who has not made it this year - those who may have moved away - or who may be wintering in warmer climates. And we notice the absence of those who have passed away during the year. Town meeting is also the day when we welcome new officials into the ranks of public service, and when we honor and say farewell to those who are retiring. This year we have more than a few farewells to make. Eight Town Clerks are retiring. Sara Grey from Castleton, Donald Meyer from Chittenden, Olga Hallock from Huntington, Richard Goodro from Middlebury, Rachel Westover from Newport, Rosemary Finley from Rutland, Ruth Morrison from Topsham and Gloria Tansey from Windsor. All will be sorely missed, not just in their own towns but in the community of local officials that make up Vermont.
Deborah L. Markowitz
Secretary of State
For further information,
A Voice from the Past
The Town In Person
This is an exercise in the naming of parts. Suppose the Town were a person. The selectboard would be the head, the brain; the town clerk would be the heart. I suppose we'd assign the road crew to the feet, to break ground or fresh snow so we could move. And the police, rescue, and fire departments would be the hands.
Of course, this kind of game can only lead deeper into the body. The auditors are the spleen, liver, and kidneys; the weigher of coal is the appendix, which hasn't been used since we ate seeds for sustenance; and the moderator is the mouth, for obvious reasons.
Every morning, this person who is our town wakes up, stretches, has its coffee, and gets to work: clearing the roads, issuing copies of birth certificates, and keeping the systems working. It's a miracle, that a person with so many different parts, independent parts really, linked together by community and the law, can function as well as it does.
It gets the flu now and again, and wastes a good deal of energy fighting within itself for control, but generally speaking that old body just keeps working, year to year, never wearing out, never breaking down.
It does that because of replacement parts. I thought of the idea of replacement parts this week on learning that Dick Goodro and Sara Grey are both retiring after many years as Town Clerks. How could there be a Middlebury without Dick Goodro and his fine wit behind the counter? How could Castleton possibly survive without the steady hand of Sara Grey? Their leaving seems almost too much, but then there will be somebody else who will do the job, with perhaps less understanding of the history of the town, but someone who will do the work and grow into the kind of professional, competent clerks these good folks have become.
It happens. People get done, and they go on to other things, and who can blame them? But it does take getting used to, because towns have character, based on the characters who make up their cast. Chairs of selectboards, clerks, even listers, put a face on a town and come to stand for the municipality in the minds of those who deal with them on a regular basis.
How often do we hear complaints from disgruntled citizens, saying "The town won't listen to me" or "The town thinks otherwise," when it's one official who has done the offensive act. This happens in the Legislature and in the U.S. Congress, where representatives come to symbolize the places they represent. Vermont has its own face. George Aiken, Ethan Allen, Calvin Coolidge-they are more than people. They have given Vermont a character, just as the town clerk gives every town a face and a personality.
People say, "She's our town clerk," with an unchecked sense of ownership and possession. When I'm standing out in the driveway, shoveling, and the town truck goes by and dumps a foot of heavy snow gristle where I just cleaned, I don't always feel that same sentiment, but I'm glad to have the road plowed. This morning, our roads were plowed, but not the next town's.
Our roads, our town clerk, our community, all bind us to one another in a way that makes you think maybe the town is a person. Not just our celebrated officials, but everyone of us residing in this six mile square is a part of one organism, one living thing. It's formulaic, it's clumsy at times, but it's ours, and it works. It's dependable.
We live here, we vote here, we pay taxes here for schools and roads, and we have full license to complain about what happens here. We'll laugh at other towns, but don't run down my town in front of me, because attacking this town is an attack on my person.
"Voice from the
Past" by Paul Gillies
|February Opinions "Table of Contents"||Secretary of State's Home Page|
1. Constable Is Delinquent Tax Collector When None Is Elected At Town Meeting? Every once in awhile we find two statutes that seemly conflict. This is the case with 24 V.S.A. § 1529 and 32 V.S.A. § 4799. The former provides that when the town fails to elect a tax collector at town meeting and does not provide any other method (i.e. town manager), the constable automatically becomes the collector of these taxes. In contrast, title 32 clearly provides that "whenever a town is without a tax collector, the selectboard may appoint someone to fulfill this role." When faced with two conflicting statutes the court will first try to find a way to interpret to be consistent with one and other. In this case, it is possible to give effect to both statutes by holding that if the town fails to elect a delinquent tax collector, the constable becomes the collector, but if some time after the election there is a vacancy in the office, then the selectboard may fill the vacancy.
2. Appointed Tax Collector Does Not Need To Be Resident. In contrast to an elected tax collector who must be a legal voter of the town, 32 V.S.A. § 479 provides that the selectboard may appoint "any qualified person" to act as tax collector for the town. The statute goes on to say that the "person hired need not be a resident of the town."
3. Delinquent Tax Collector Should Inform Taxpayer Of The Right To Seek Abatement Of Taxes. When the delinquent tax collector sends first notifies the taxpayer of the delinquency, this correspondence should inform the taxpayer of his or her right to seek abatement of the taxes. This is advisable because at least one Superior Court in Vermont has held that a taxpayer's right to due process was violated when his property was sold at tax sale without first informing him of the right to seek abatement of the taxes.
4. Board Of Abatement Exercises Discretion When Deciding Whether To Abate Taxes. 24 V.S.A § 1535 sets out a number of circumstances in which a board of abatement may choose to abate the taxes of a property owner. The statute does not require abatement under any circumstances, and the courts have affirmed the boards right to exercise discretion in these matters. Abatement is meant to be an equitable remedy, used only in the most unusual cases - as in a fire or where a survivor is temporarily unable to access the assets of an estate while it is in probate. It is not meant to be a way for the town to subsidize taxpayers who can no longer afford the taxes on their property. On occasion the delinquent tax collector may request an abatement to clear up his or her records when a delinquent tax payer cannot be found or if the taxpayer's property has no value and the delinquent tax payer has no other assets to be taken.
5. Board Abatement Cannot Abate Only Interest And Penalty. 24 V.S.A. § 1535 contemplates that the board of abatement may only abate interest and penalty proportionately to the taxes abated. Abatement should not be used to remove interest and penalty from a late payer (even one who had a very good excuse for being late) unless tax is also being abated.
6. Amounts Refunded By Board Of Abatement Must Include Interest When The Town Collects Interest On Overdue Taxes. When the board of abatement orders abatement of tax, penalty and interest if the municipality collects interest on overdue taxes (pursuant to 32 V.S.A. § 5136), then it must pay interest in a like amount to the person for whom abatement has been ordered. 24 V.S.A. § 1535.
7. Town Should Pay Interest On Tax Refund If Town Collects Interest On Overdue Taxes. State law provides that a town that is required to refund money to a taxpayer because of a redetermination of the grand list, after appeal must pay interest on the amount due at the same rate it charges on over-due taxes. 32 V.S.A. § 5136(b). Although this statute does not expressly address the situation in which a town refunds tax money because it is correcting an error (thus avoiding a tax appeal or abatement), it is likely that a court would require the payment of interest because this is analogous to other situation in which payment of interest is required.
8. New Property Tax Bill Should Be Sent Out When A Property Value Is Changed After Appeal. When a property value is changed as the result of an appeal after tax bills have gone out it is best to follow the rules set out in 32 V.S.A. § 4605. The statute provides " . . . the treasurer shall forthwith assess the tax on the amended list . . . and mail to the taxpayer at his last known address a notice stating the amount of his grand list, the tax rate, the amount of taxes due from him and when the same are payable." The tax must be payable "not less than five nor more than fifteen days after such assessment."
9. CORRECTION: Property Transfer Tax Return and Mobil Homes. Opinion 9 in the Secretary of State's Vol. 2, Number 2, "Opinions" dealing with property transfer tax returns upon the sale of mobile homes needs correction and clarification. The Vermont Department of Taxes has addressed by regulation the issue of if and when a mobile home will be considered "property" for purposes of requiring a property transfer tax return to be filed with the town clerk (Section 1.9601 (10) - 1). The regulation lists factors that tend to show that a mobile home has become affixed to the land, and can therefore be considered property requiring the filing of a property tax return form. For further clarification contact the Vermont Department of Taxes. The March edition of Opinions will also correct Opinion 9.
10. Vote On Zoning Bylaw Can Be Forced If No Selectboard Hearing Is Held. Vermont law gives the voters the power to force a vote on proposed zoning bylaws, amendments or repeals when no action has been taken to approve or reject a proposal within one year of the date of the final hearing of the planning commission. To force a vote, five percent of the voters of the municipality must file a petition within 60 days of the end of that year requesting a vote on the proposal. Such vote must be by Australian Ballot. If no vote is forced by petition, the proposal is considered rejected. 24 V.S.A. § 4404(I).
11. Minutes Of Public Meeting Must Be Available Within Five Days. According to Vermont's open meeting law, minutes of a meeting of a public body must be available for public inspection within 5 days of the meeting. 1 V.S.A. § 312(b). A failure to make minutes available is a violation which can be prosecuted by the Attorney General or may be enforced by a private action brought by the person who believes his or her rights have been violated.
12. Governance Charters Provide Special Laws. There are two kinds of charters for a town - a land grant charter and a governance charter. Every town has a land grant charter - this is the act that created the town and set out its boundaries. In contrast, a governance charter is a special set of laws that applies only to a particular town. The charter can establish different rules about local governance than the general law provides. For example, a number of charters make the clerk and treasurer appointed positions. In order to adopt a governance charter the town must vote to approve the charter and then the legislature must adopt the charter as law. Note that, in a few instances the legislature has adopted a special law that applies only to one community. This is a way for a town to vary from the requirements of the general law without adopting a full-blown governance charter.
13. Town May Replace Auditors With CPA. A town may vote by ballot at an annual meeting to eliminate the office of town auditor. If a town votes to eliminate the office of town auditor, the selectboard must contract with a public accountant, licensed in this state, to perform an annual financial audit of all funds of the town. The selectboard is then responsible for preparing the town report. 17 V.S.A. § 2651b.
14. Selectboard May Not Ordinarily Hire CPA Without Vote Of The Town. The question arose whether the selectboard can hire a CPA to perform an audit for the town without a vote of the people. Ordinarily, the board must bring this issue to a vote of the people. This is because 24 V.S.A. § 1690 provides a mechanism for the board to ask the voters to decide this issue. The specific article warned is: "To see if the town or village will vote to instruct the selectmen or trustees to employ a certified public accountant or public accountant to aid the work of the auditors." Of course, extraordinary situations can arise that might require the hiring of a CPA without such a vote -- as in an audit by the IRS or embezzlement of funds by an employee.
15. Three-Year Term In Place For Office, Not Individual. A long serving clerk who is retiring and the selectboard wish to change the term to one year so that the town can see how a new clerk does before committing for three years. 17 V.S.A. § 2646 provides that once a town has voted for three-year term for the office of town clerk, that term remains in effect until the town rescinds it by the majority vote of the legal voters present and voting at an annual meeting, duly warned for that purpose. This means that the new town clerk will be elected to a three-year term unless the town is able to hold a special town meeting prior to the annual meeting to change the term back to one year.
16. E-mail Exchanges May Be Public Record. E-mail messages between public officials, relating to public records is considered public record and can be requested under Vermont's public records law. Vermont's public records law was amended in 1997 specifically to reach electronic records. 1 V.S.A. § 317 now defines "public record" or "public document" as "all papers, documents, machine readable materials or any other written or recorded matters, regardless of their physical form or characteristics, that are produced or acquired in the course of agency business." (emphasis added). Consequently, unless an exception to the public records law applies, e-mail messages will be public record.
17. Town Should Allow Videotaping Of Meetings. It is not surprising that selectboard members balk at having their meetings broadcast on the public access station. It is easy to feel self conscious in front of a camera. However, Vermont's open meeting law does not give a board authority to deny a member of the public (or press) the right to record or videotape a meeting. Of course, the chair of the meeting may keep order and may ensure that the person operating the camera does not disrupt the meeting. Permission to videotape may also be denied if the taping would cause a physical disruption to the meeting (ie there is not enough room for the equipment.) 1 V.S.A. § 312.
18. No Law Requires Employees To Be Paid On Town Meeting Day. Town meeting day is a state holiday. What this means is that state employees may take the day off - with pay. The law does not require private employers to give their employees a paid day off.
19. Non-Voters May Only Speak At Annual Meeting Upon 2/3 Vote. Town meeting is a voter's meeting. Accordingly, a non-voter has no right to address the meeting unless a motion to suspend the rules to permit the non-voter to speak has been passed by a 2/3 majority of the members.
20. A Town That Does Not Vote Public Questions By Australian Ballot May Not Take Non-Binding Public Question Vote By Australian Ballot. 17 V.S.A. § 2680 prevents a community from using Australian Ballot to vote a public question unless, at an earlier meeting that town has elected to vote the question (or all public questions) by Australian Ballot. Note that this rule applies even though a proposed question is "non-binding" because “ section 2680 applies to all public questions, and “public question” is defined to include both binding and non-binding questions see 17 V.S.A. § 2103 (27). you.
Opinions of Opinions
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Getting Ready at the Polls
- Town clerks should furnish presiding officers with one or two certified copies of the checklist, depending on whether the town has opted not to use an exit checklist. 17 V.S.A. § 2507.
- Town clerks must also deliver sufficient quantities of the ballots (presidential primary ballots prepared by this office, as well as any ballots prepared by the clerk for Australian Ballot voting) to the presiding officer. 17 V.S.A. § 2479.
- The presiding officer should assign specific duties to each election official, ensuring that the election officials work in pairs, with each pair containing members from different political parties if possible. 17 V.S.A. § 2562.
Public Discussion and Politicking in the Polling Place
- In an Australian Ballot Election (and the Presidential Primary), the presiding officer declares the polls open on the day of the election between 6 a.m. and 10 a.m. (the specific time is set by the board of civil authority or by the voters), and declares the polls closed at 7 p.m. 17 V.S.A § 2581.
- Town meeting begins at a time designated by the legislative body, unless the town has voted a specific time at a previous meeting. 17 V.S.A. § 2655.
Maintaining Order at Town Meeting
- In towns that start their annual meeting on one of the three days preceding the first Tuesday in March and use the Australian Ballot system on Tuesday, public discussions of Ballot issues and all other issues appearing in the warning, other than election of officers, is permitted at the Saturday, Sunday or Monday meeting. 17 V.S.A. § 2640(c).
- Neither the warning, the notice, the official voter information card, nor the ballot itself shall include any opinion or comment by any town body or officer or other person on any matter to be voted on. 17 V.S.A. § 2666.
- In an Australian Ballot Election the presiding officer should ensure that within the building containing the polling place no campaign literature, stickers, buttons, information on write-on candidates or political materials are placed, handed out, or allowed to remain and that no candidate, election official or other person distributes election materials, solicits voters or otherwise campaigns. 17 V.S.A. § 2508.
- Outside the building, the presiding officer must ensure that voters can enter and leave the polling place without interference from candidates or other citizens. 17 V.S.A. § 2508. The provisions of this section apply equally to election of candidates as to votes on public questions, including the budget, if done by Australian Ballot vote.
Accessibility of Town Meeting
- In traditional town meeting the moderator must follow reasonable and necessary procedures to ensure that people who are not voters of the town do not vote. 17 V.S.A. § 2656.
- The moderator must preserve order in the conduct of business and debate. If a person, after notice, continues to be disorderly and refuses to withdraw from the meeting, the moderator may order him to be removed by the constable or some other person. 17 V.S.A § 2656. A person who disturbs town meeting may be fined $200 by the district court.
- Remember that while Roberts Rules of Order or some other rules of procedure must be followed at town meeting, these rules have been modified by state law. Additional reminders include: avoid reconsidering articles already voted once consideration of another article has begun; take no binding action during the "other business" portion of the meeting; allow sufficient time for voters to cast paper ballots whenever that method of voting is to be used. 17 V.S.A. §§ 2660(d); 2661(a).
Election of Officers
- The legislative body must take reasonable measures to ensure that elderly or disabled voters may conveniently attend town meeting. Sign Language interpreters must be provided, if necessary. 17 V.S.A. § 2667 and the Americans with Disabilities Act. Town Meeting must be held in an accessible location.
- The board of civil authority must take reasonable measures to ensure that disabled and elderly voters may conveniently and secretly cast their votes. If it is not possible to hold the election in an accessible location, election officials must be permitted to carry a ballot to an elderly or disabled person in order to permit that person to mark his or her ballot while in a motor vehicle adjacent to the polling place. 17 V.S.A. § 2502.
- A voter who declares to the presiding officer that he or she needs assistance voting may bring a person of his or her choice into the voting booth (so long as it is not the voter's employer or union representative) or the voter can ask the presiding officer to direct to elections officials to assist the voter. Those rendering assistance may not divulge information about the choice of the voter or manner in which the vote was cast. 17 V.S.A. § 2569.
Voting in the Presidential Primary.
- In order to be elected as a write-in candidate in an Australian Ballot election when no other candidate has received a greater number of votes, a candidate must receive 30 votes or the votes of 1% of the registered voters of the town, whichever is less. 17 V.S.A. § 2682 (c).
- The offices of selectboard, lister and auditor must be elected by paper ballot (unless it is done by Australian ballot). The offices of road commissioner and water commissioner, if elected, must also be elected by paper ballot. 17 V.S.A. § 2646.
- When there is a single candidate, unless any voter opposes this, the town may agree to ask the clerk to cast one ballot for the candidate. 17 V.S.A. § 2660(b).
- A majority of those present and voting is required to elect an officer. This means that if there are three candidates, none of whom receive a majority of the votes by the third ballot, you must eliminate the candidate with the least votes and repeat the procedure until someone receives a majority of the votes. 17 V.S.A. § 2660(c).
- For the March 7, 2000 Presidential Primary, there are only two major political parties: Democratic and Republican.
- A person voting in the primary will be required to ask for the ballot of the party in which the voter wishes to vote and an election official must record the voter's choice of ballot. A voter can only vote in one primary election. 17 V.S.A. § 2704.
- The checklist for the primary shall be the checklist to be used at town meeting, except that the names of residents of unorganized towns and gores shall be added to the checklist if required by law (see 17 V.S.A. § 2123.) Next to their names the clerk shall indicate that they may only vote in the primary, and not for town meeting or Australian ballot items. 17 V.S.A. § 2705.
1. Forming A Planning Commission.Unless a municipal charter provides otherwise, a planning commission made up of three to nine voting members may be created at any time by an act of the legislative body of a municipality. 24 V.S.A. § 4328. The energy coordinator, if there is one, and the selectboard of a rural town, or not more than two elected or appointed officials of an urban municipality chosen by the legislative body, serve as non-voting ex officio members. 24 V.S.A. § 4322. At least a majority of the members of a planning commission must be residents of the municipality. This rule lets the municipality appoint non-residents who may have particular expertise in planning to sit on the board.a) Appointment / Election.Planning commissioners may be either appointed by the selectboard or elected by the voters. When planning commissioners are appointed, the term of each member is four years, however, municipalities that choose to elect its commissioners may do so for terms of one to four years. The proposal to elect, and the length of terms to be filled is determined by a vote at an annual or special meeting of the municipality.
b) Removal Of Planning Commissioners.A planning commissioner that has been appointed may be removed at any time by unanimous vote of the legislative body. Note that elected commissioners may not be removed by action of the legislative body. 24 V.S.A. § 4323.
c) Compensation.Planning commissioners may be compensated and reimbursed by the municipality for necessary and reasonable expenses. As a practical matter, most planning commissioners volunteer their time and are paid a stipend to cover expenses such as phone calls and travel.
d) Appropriation, Reports and Records.A municipality may appropriate and spend funds for its planning commission. The planning commission must keep a record of its business, which should be included in the annual report of the municipality. A planning commission may also accept and use grant money or other donations. 24 V.S.A. § 4326.
2. Organization.At its organizational meeting the planning commission establishes its regularly scheduled meeting, elects a chair and a clerk and also adopts rules of procedure (such as Roberts's Rules for Small Boards). Note that the board may make its own rules, but the rules may not contradict provisions of state law. In re Lionni, 160 Vt. 625 (1993). A planning commission must keep a record of its resolutions and transactions, which shall be maintained as a public record of the municipality.3. Powers and Duties of Planning Commission.
The Opinions Zoning
Tuesday, February 1, 2000
(Within 24 hours from receipt) Town clerk must return nominating petitions found not to conform, stating in writing the reasons why they cannot be accepted. 17 V.S.A. § 2681(e).
Wednesday, February 2, 2000
(Wednesday after filing deadline) 5:00 PM deadline for candidates to file written consent for the candidate's name to be on the ballot. 17 V.S.A. § 2681(a).
(Wednesday after filing deadline) 5:00 PM deadline for candidates to file supplementary petitions if initial petition was not accepted.17 V.S.A. § 2681(e).
Sunday, February 6, 2000
Last day to hold first public hearing on charter amendments if article is to be voted at Town Meeting. 17 V.S.A. § 2645(a)(3).
(Not less than 30 days before Town Meeting) Last day for municipality to post warning and notice of Town Meeting. 17 V.S.A. §§ 2641(a), 2642.
The most recent checklist of the town should also be posted at this time, wherever the warning and notice is posted. In towns that divide their checklist, that portion of the checklist that applies to the district should be posted. 17 V.S.A. §§ 2141, 2501.
Friday, February 11, 2000
(25 days before Town Meeting) Town officers must settle accounts with auditors to be eligible for re-election. 24 V.S.A. § 992.
Wednesday, February 16, 2000
(In towns using Australian Ballot 20 days before election) Under direction of the town clerk, ballots must be back from printer. 17 V.S.A. § 2681a(a).
VLCT Local Government Day in the Legislature.
Saturday, February 19, 2000
(Not later than 17 days before the election) Last day to receive applications for addition to the checklist from people requesting absentee ballots. Town clerk shall mail a blank application along with a full set of absentee ballots to the person requesting such. Absentee ballots and applications must be received by the town clerk before the closing of polls and election day, to be considered valid. 17 V.S.A. §§ 2103(13), 2532(c).
Monday, February 21, 2000
Washington's Birthday The Office of the Secretary of State is CLOSED!
Friday, February 25, 2000
Last day for legislative body to post warning for public informational hearing on any public question to be voted by Australian Ballot at Town Meeting. 17 V.S.A. § 2680(g).
Saturday, February 26, 2000
Town clerk's office must be open from 10:00 AM or earlier until at least 12:00 PM for the purpose of receiving applications for addition to the checklist. 17 V.S.A. § 2144(a).
Last day (up to 12:00 noon) for people who are not eligible to register by this date, but who will be by election day, to file a written notice of intent to apply with the town clerk. 17 V.S.A. § 2144(b)(c).
First day (after 12:00 noon) for Board of Civil Authority to revise checklist resulting from application deadline for Town Meeting. 17 V.S.A. § 2142.
(At least 10 days before Town Meeting) Selectboard must mail or otherwise distribute Town Meeting warning in annual town report by this date to avoid publishing warning in newspaper. 17 V.S.A. § 2641(b).
Last day for town clerk to post sample ballots and official voter information cards in the same places they have previously posted copies of the warning, notice and checklist. 17 V.S.A. § 2522(a).
Monday, February 28, 2000
(20 days before the election) Candidates for Town Meeting local election who are spending more than $500 must file a campaign finance report with officer with whom nominating papers were filed. 17 V.S.A. §§ 2822, 2103(13).
(Any of the eight days before or the day of the election) In towns using Australian Ballot, town clerk must give each of Justices the exact number of absentee ballots, envelopes, and list of absentee voters to be visted. 17 V.S.A. § 2538(b)(c).
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