VERMONT SECRETARY OF STATE - Jim Condos
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State of Vermont Office of the Secretary of State http://www.sec.state.vt.us Volume 2 Number 6

Redstone Building 26 Terrace Street, Drawer 09 Montpelier, VT  05609-1101 1-802-828-2363

Message from the Secretary	Table of Contents
Last year at this time I recounted to you the old saying that sausages and laws are the two things one should never watch being made. This adage applied with particular vehemence this year with the civil union debate dominating the session. But, despite the public focus on civil unions, we had a very successful year. Our success was largely due to the hard work of the House Local Government Committee, the Senate Government Operations Committee, the Vermont League of Cities and Towns and my deputy, Bill Dalton. Perhaps our most important achievement of the session was the passage of a conflict of interest law that will permit communities to adopt binding ethics policies. It is our hope that conflict of interest rules will encourage more people to volunteer for public office. Ethics policies can protect officials from the personal attacks which have become all too commonplace in local debates, and they enhance public confidence in local government. With the help of Paul Gillies we will be preparing a pamphlet explaining the new conflict of interest law and offering options for towns that wish to adopt ethics policies for their communities.	Message from the Secretary "Voice from the Past" by Paul Gillies Opinions of Opinions Know the Rules for Summer Hiring of Minors Message from the State Archivist June's Calendar Vermont Public Service Awards Bennington County Honorees Opinions Newsletter Home Page
The legislature also adopted legislation permitting our office to start a "Safe at Home" address confidentiality program. This program will protect the physical safety of certain victims of domestic violence, rape or stalking by permitting them to use the Secretary of State's office address as their legal address, and by keeping their locational address out of public records (abusers often track down their victims using the public records system). As we begin the rulemaking process we will be working closely with the Town Clerk/Treasurer's association and the Health Department to ensure that we can find reasonable ways for dealing with voter checklists, vital records, etc . . .. Finally, the legislature considered, but was unwilling to take up the proposals developed by our Election Law Review Committee which met last summer. The committee was concerned that amendments to the election laws would open the door to amendments to our new campaign finance law. The good news is that House Local Government Committee expressed an interest in revisiting the issue next session. I want to give a special thank you to town clerks Kathy White and Judith Hanson who spent a great deal more time in Montpelier than they ever expected when they agreed to chair the legislative committee of the clerks association. It was their work, and the work of the clerks who came out to support their efforts, that helped to ensure that the laws that passed this year work for the municipalities of Vermont. Deborah L. Markowitz Secretary of State

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Every Justice of the Peace, every state and most local officials, take an oath of office promising to "do equal right and justice to all persons, to the best of my ability, according to law." This principle is more than just nice words; it signifies an inclusive approach to governing.

J.P.s do many jobs in our chosen democracy. They hear tax appeals, as part of the board of civil authority; tax abatements, as part of the board for the abatement of taxes; administer oaths; serve many roles in the election process; perform marriages and, beginning July 1, 2000, certify civil unions.

No law says a J.P. must perform marriages or certify civil unions. The law simply explains that J.P.s are authorized to perform or certify these commitments, as civil officers, by the authority of the State of Vermont. Some Justices simply pass on the whole business. Others adore the role, and have for many years happily joined couples together through a variety of traditional or nontraditional ceremonies.

Now civil unions are the law of Vermont, and many are wondering precisely what this entails for the Justice of the Peace. It isn't complicated. Like anything, it takes a little care.

Let's review the basic paperwork on marriages and civil unions to start. The town clerk issues the license or certificate to one of the couple. If one of the parties is a resident, then the town of residence is where the license or certificate is obtained. If neither party is a resident, then any town clerk may issue the paperwork that allows a marriage or civil union to be performed.

Remember that the paperwork has an expiration date of 60 days. As a J.P., your first duty to the parties is to check the date to see that it is not 60 days stale. If so, then send them back to the clerk. After the wedding or civil union ceremony is over, it is also the Justice's duty within 10 days to mail or deliver the completed certificate or license to the town clerk who issued it. And, of course, to sign it and date it, showing the time and place of the ceremony.

The law does not specify precisely what you need to do for a ceremony. Usually that's up to the parties, who always have ideas about what they want, whether formal or informal, using a formal text or letting the heart speak for itself. The least ceremony - the minimum necessary obligation - is a simple statement by the Justice at the end of the ceremony. For marriages, this is, "By the authority vested in me by the State of Vermont, I hereby pronounce you husband and wife." For civil unions, let it end with, "I hereby certify this civil union."

You don't have to do marriages or civil unions, but it's very good advice not to put yourself in the way of a civil rights claim by refusing to perform a civil union while agreeing to do marriages.

Just how many civil unions will be performed this year is completely unknown. For that matter, nobody knows how many marriages will be solemnized either. But before you get to a situation where you have to declare, think about what you want to do. Think about your duty and your oath, and let the clerk know your thoughts.

"Voice from the Past"  by Paul Gillies
Opinions       Volume 2  Number 6     June 2000

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1. Selectboard Can Sue To Abate Public Nuisance. The law permits the selectboard to bring an action against a landowner who has created a danger to the community by, for example, not boarding up or removing a dangerous building – even if that building is on private land. 24 V.S.A. § 2121.

2.  Selectboard May Adopt Public Nuisance Ordinance. 24 V.S.A. § 2291(13) permits a town to adopt an ordinance "to compel the cleaning or repair of any premises which in the judgment of the legislative body is dangerous to the health or safety of the public." In such a case the selectboard can order the repair of a dangerous building. If a landowner fails to comply the board can bring an enforcement action in superior court to force compliance and/or fine the landowner for the violation.

3.  Selectboard Salary Is Set By Voters Or Auditors. 24 V.S.A. § 933 provides that if voters fail to vote a specific salary for selectboard members, their salary is to be set by the board of auditors. This is to prevent the conflict of interest that would arise when a selectboard determines its own salary.

4.  Additional Pay For Selectboard Member Who Mows Cemetery May Be Set By Selectboard. Occasionally a selectboard member may also work for the town in some capacity. Unless the voters have voted a specific rate of pay for the work, the selectboard may decide the rate to be paid. 24 V.S.A. § 933. Of course, the selectboard member who is working for the town should recuse him or herself from all of the salary discussions.

5.  Minutes Of Meetings Must Be Available For Public Inspection Within Five Days. Minutes of all public meetings are matters of public record, and are kept by the clerk or secretary of the public body. These minutes must be available for inspection and copies available for cost upon request after five days from the date of any meeting. 1 V.S.A. § 312(a).

6.  Clerk May Take Tape Of Meeting Home To Write Up Minutes. Tapes of a meeting that are made to assist the clerk of the board with writing up the minutes are subject to the public records law. This means that, until the record is destroyed, (for example, by taping over it,) the tape must be available for public inspection. The custodian should not ordinarily let the tape be taken home by a board member or member of the public because it would be out of his or her custody. However, this would not prevent the custodian from bringing the tape to his or her own home to transcribe minutes at his or her leisure. Note that if a person requests to hear the tape while it is being used to write up the minutes the person may be asked to wait as long as a week before it is produced for examination. 1 V.S.A. § 318.

7.  Meeting Agenda May Indicate Executive Session Is Expected. The open meeting law does not permit a meeting to be warned as an executive session because a public body can only go into executive session after making and passing a motion, in open meeting, specifying the reason for going into executive session. It is polite, however, to note on the agenda for the meeting or on a posted notice of a special meeting that the board expects to go into executive session.

8.  Office Hours May Be Altered During Clerk's Vacation. Even town clerks can go on vacation – provided they make an arrangement to have someone else – an assistant – open up the office and the vault in order to make the public records available. No law requires the assistant clerk to maintain the same hours as the clerk (in one instance, the temporary arrangement will be, and the records are available during his or her absence, the legal requirement that "the files and records in the office of the clerk shall be available for inspection upon proper request at all reasonable hours" will be met.

9.  Selectboard's Responsibility For Town Cemetery Generally Ends When Cemetery Commissioners Are Appointed. State law provides that when a town votes to place its public burial grounds under the charge of cemetery commissioners, and elects a board of three or five cemetery commissioners, who shall have the care and management of the burial ground, then all responsibility on the part of the selectmen shall cease. 18 V.S.A. § 5373.

10.  Selectboard May Be Obligated To Manage Public Cemeteries. When a town fails to place one or more of its public burial grounds under the charge of a board of cemetery commissioners, the selectmen will have power to convey lots and may apply the proceeds of such sales and accept for the town and use legacies, bequests and gifts for improving and embellishing the grounds. 18 V.S.A. § 5367. Note that in some towns the cemetery commissioners oversee some of the cemeteries and the selectboard other public cemeteries.

11.  Town May Take Over Abandoned Private Cemetery. 18 V.S.A. § 5321 provides a process for the town to take over a private burial ground that has been abandoned, and has become unsightly, or when headstones or monuments have been displaced. On written request of three legally qualified voters of the town, the selectboard or cemetery commissioners must published a notice once a week on the same day of the week for three successive weeks in some newspaper circulating in the area, calling upon any person interested in the burial ground to put the burial ground in proper condition within three months from the date of the notice. At the expiration of the three months, if the burial ground is not improved then the selectboard or cemetary board must maintain it and treat it as though it is a public burial place.

12.  Cemeteries Are Exempt From Property Tax. Generally speaking, cemetery lands, buildings and property which have been platted and devoted to or held exclusively for cemetery purposes are exempt from taxation. 18 V.S.A. § 5317.

13.  Study Committees Formed By The Board Are Subject To The Open Meeting Law. The open meeting law provides that committees formed by a public board are also considered to be public bodies. Accordingly, if the selectboard appoints a citizen committee to study and report back its findings on an issue such as developing the local riverfront into a park, or changing the municipal charter, the meetings of that committee must be publicly noticed–just like the meetings of the board that created it.

14.  Voters May Elect To Pay Tax Collector Salary Instead Of Fees. A town may vote to pay a salary or other compensation for collection taxes in lieu of fees and commissions to the collector of taxes or collector of delinquent taxes. An amendment to 24 V.S.A. § 1530 effective April 29, 1998, allows towns to vote a salary for the delinquent tax collector in lieu of fees or commissions. If this is voted at an annual meeting, the fees and commissions must be turned in to the municipal treasurer at least once a month.

15.  Board Must Act Quickly When It Receives A Petition For Reconsideration. When a selectboard or school board receives a valid petition requesting reconsideration of an article voted at the annual town or school district meeting within 30 days after the meeting, the vote on the reconsideration must be held within 60 days of receipt of the petition. This statutory timeline does not leave room for dawdling over the warning or selection of a date certain. As with all special meetings, the warning must be posted 30 to 40 days before the meeting.

16.  Article To Rescind Australian Ballot Must Be Voted In The Manner The Town Votes Public Questions. A town that receives a petition to return to a voice vote and discontinue Australian ballot for the town or school district budget must vote this article however it votes its public questions. Unless the town or district has already voted to consider all public questions or this specific public question by Australian ballot the article to discontinue must be considered by floor vote. 17 V.S.A. § 2680.

17.  The Checklist From Each Election Must Be Kept For Five Years Following The Election And Made Available At Cost To The Public. The law provides that the election ballots and tally sheets may be destroyed 90 days after a state or local election, and 22 months after an election including federal offices. However, the law also requires the exit checklist, or if none, the entrance checklist, to be retained by the municipality for five years. 17 V.S.A. § 2590.

18.  Voter May Simultaneously Requests Addition To The Checklist And Absentee Ballot. Vermont law provides that if a resident submits a request for application to the checklist along with a request for an absentee ballot not later than 17 days before the election, the town clerk must mail an application to the checklist together with a full set of absentee ballots, to the person who has applied for absentee ballots. All such applications for addition to the checklist which are received by the town clerk prior to the close of the polls on election day must be acted upon by the board of civil authority before the ballots are counted. If the application is approved and the name added to the checklist, the absentee ballots cast by the voter must be counted as valid absentee ballots. 17 V.S.A. § 1532(c).

19.  Town Clerks And Boards Of Civil Authority (BCA) Must Add Names To Checklist In A Timely Manner. Clerks and BCAs must add new voters to the checklist in a timely manner so that they can participate fully in local, statewide, and federal elections. Participation does not just include voting. In order to sign petitions for candidates seeking to have their name on the ballot or to run for office themselves, a resident must be a registered voter. Although the only mandatory statutory deadline for BCA consideration of applications is the 2nd Saturday before an election the law provides that the BCA must meet "as necessary" to add names to the checklist. 17 V.S.A. § 2142. We recommend that town clerks call meetings of the board of civil authority on a regular basis so that those who have submitted applications may participate in the petition process and may run for office. One way to avoid quorum problems is to call and warn the meeting in conjunction with other regularly scheduled meetings

20.  ERRATA: There Were Two Typographical Errors In Last Month's Opinions. SORRY!

2.  Zoning Administrator May Take A Vacation. Every spring, as zoning administrators plan their vacations, we get panicked calls from towns wondering if all development must cease in the administrator's absence. Although the law is not specific, the planning commission, with the approval of the zoning selectboard should appoint an "acting administrator" who will perform the duties of the administrator in his or her absence. It is not uncommon for a member of one of the boards to take on this position – however, a board member who does this must take care not to participate in an appeal of a decision thathe or she participated in as acting administrator.

19.  Selectboard Needs Traffic Study To Set Local Speed Limit Below 35 MPH. If the legislative body wishes to set a speed limit on all or a portion of an unpaved town highway, of not more than 50 miles an hour or not less than 35 miles per hour, it can do so without an engineering or traffic investigation, but only after consideration of neighborhood character, abutting land use, bicycle and pedestrian use, and physical characteristics of the highways. If a board wishes to set the speed limit below 35 miles per hour the board must first do engineering and traffic investigation, and find that such investigation supports such a change. 23 V.S.A. § 1007.

Opinions of Opinions
   Opinions       Volume 2  Number 6    June 2000

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1.  Special Rules For 14 & 15 Year Olds:

• Hours: This age group may not work before 7 AM or after 7 PM, or more than 8 hours per day (on non-school days), or more than 40 hours per week (in non-school weeks) or more than 6 days in a week.
• Types of Work: This age group may do office & clerical work, cashiering, selling, price marking, assembling orders, packing and selling, bagging and carrying orders, errands and delivery by foot, bicycle, or public transportation, cleanup work and maintenance of grounds, kitchen work. and dispensing gas and oil.
• Prohibited Work: 14 & 15 year olds cannot work in any occupation found and declared to be hazardous. This includes but is not limited to manufacturing, processing, and use of any power driven machinery.
• No Minor may operate power mowers or cutters.
• No Minor May prepare or clean meat; or work in freezers; or operate food slicers, grinders, mixers.
• There may also be restrictions on minors selling or serving alcoholic beverages.

2. Special Rules For 16 & 17 Year Olds:

• Hours. A minor who is over 16 and under 18 may not work more than 9 hours in any one day or more than 50 hours in any one week.
• Types of Work: This age group may work in any occupation that is not specifically prohibited.
• Prohibited Work. This age group may not work in a manufacturing or mechanical job. This age group is also prohibited from working in a range of hazardous occupations, including:

• Motor vehicle driving
• Logging and sawmilling
• Operating most power driven machinery
• Roofing and excavation
• Meat packing, processing, or rendering

Note that different rules may apply to minors who work in a family owned and operated business.

Questions? Call the Wage and Hour Division, VT Dept. of Labor & Industry 802-828-2157
or visit their web site at www.state.vt.us/labind

Know the Rules for Summer Hiring of Minors
 Opinions       Volume 2  Number 6    June 2000
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RECORDS CARE GRANT AVAILABLE

The Vermont State Archives and the Vermont Historical Records Advisory Board (VHRAB) will be offering records workshops and providing grants to improve the preservation of, and access to, historical records. Of interest to municipal clerks are grants to provide on-site collection surveys through which an archival consultant will review and report on your facility and records practices. You would then be responsible for providing an action plan based on the consultant's recommendations. The action plan can be used as a planning and budget tool for addressing your short and long term records needs. For more information (including application forms) on this and other grant programs visit the Vermont Historical Records Advisory Board section of the State Archives website within the Secretary of State's homepage. Or you can write to VHRAB, c/o Michael Sherman, 20 College Street Montpelier, VT 05602 or call 802 223 2632 or e-mail:mnsherms@together.net. Application deadlines will be the first work day of each month.

The State Archives and VHRAB are offering two, two-day workshops on caring for historical records. The workshops will be at the Mid-State Regional Library, Berlin, VT on June 27 and July 25 and at the Park-McCullough House in North Bennington on June 29 and July 27. Cost is $35 which covers the two days plus educational material; checks should be made payable to the Secretary of State. Though some topics covered during the workshops are designed for local historical societies, many directly relate to municipal clerk responsibilities, including managing an archives, basic archival principles and practices, preservation, resources, and collection management tools. To register send your name, title, organization, address, telephone number, plus the check and indication whether you will be attending the Berlin or North Bennington workshops to Louise Corliss, Vermont State Archives, 26 Terrace St., Drawer 9 Montpelier, VT 05609-11013. Registration deadline is June 19th.

Message from the State Archivist
 Opinions       Volume 2  Number 6    June 2000
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Thursday, June 1, 2000 Deadline for Listers to lodge personal property inventories with Town Clerk. 32:4007. Monday, June 5, 2000 (Within 60 days of petition) If a petition for reconsideration or rescission of a question considered or voted at Town Meeting has been filed, this is the last day in which a municipal vote may be held at a duly-warned meeting. 17:2661(b).	Tuesday, June 6, 2000 (90 days after Town Meeting election) In towns using Australian Ballot, Town Clerk may open and destroy used Town Meeting ballots and tally sheets, except as otherwise provided by law. 17:2590(d). Tuesday, June 30, 2000 End of fiscal year for state and school districts and for municipalities that have adopted July 1 through June 30 fiscal year calendar. 32:1, 24:1683(b)(c).

June's Calendar
  Opinions       Volume 2 Number 6    June 2000 

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