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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 3 |
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March Meeting is only one piece of Vermont's tradition of participatory democracy. In fact, the backbone of that democratic tradition is the many individuals who do the work of local government. After March meeting, when things begin to settle down and town government falls from the front pages of our papers, the real hard work of local government begins. This is the time we reorganize. We set meeting days, elect chairs, adopt rules of order, and to begin to feel out the new personalities on the boards. It is a time when the absence of old friends is felt the strongest - and when new officials must be given an opportunity to learn what their new jobs require. I want to give a special welcome to those of you who are newly elected this month. As you begin to learn the requirements of your new positions and have questions about the laws that govern the work you do, please feel free to call us for assistance. We will answer your questions and direct you to other resources that might be helpful to you and your towns. |
Message from the
Secretary The Opinions
Zoning Page |
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Secretary of State's Home Page top of page
A Voice from the Past
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THE LONG NIGHT
OF THE MODERATOR
MARCH 2000
It's the night before town meeting, and you've just had a small case of the nerves. Why did you ever agree to serve as moderator? You could have sat on your hands, and enjoyed town meeting from the safety of the floor, but instead you had to go and volunteer to do this job.
At the time, it looked so inviting - working one day a year, no heavy lifting, your name in the town report, and the gratitude of the town for such a little effort. But now you have second thoughts. You pour over the warning, trying to find its soft spots. You rifle through Robert's Rules, looking for an answer to a critical question, and it doesn't surface. And you wonder just how much you will embarrass yourself tomorrow morning, when you say something stupid while everybody's watching.
Calm down, please. This is not helping. Pour another cup of coffee and let's go over the hard parts again. What is it you most fear?
(1). Somebody disagreeing with your call? It's bound to happen some time. Somebody is going to question your judgment. How you handle that situation defines you as a moderator. If you appear resentful, you violate the sacred rule of impartiality of a moderator. Be magnanimous. Ask first for clarification. Ask the speaker, "What is the nature of your objection?"
She disagrees with your decision that the ayes have it. One voter is sufficient to call for a division, so your response is, "Let's have a show of hands."
Suppose she disagrees with a parliamentary ruling? This is a valid motion, called an appeal. The voters must then decide, if the motion is seconded, whether the moderator's ruling should be sustained.
The motion may be debated. Such debate will be awkward for the moderator, but other than the most hostile situations should not require the appointment of a moderator pro tem. A majority opposed to the motion reverses the chair's decision.
(2). Somebody moving to "pass over" an article? It's happening more and more at town meeting, as antsy voters try to move the meeting along at a faster pace. Maybe they don't care about the subject of the article or maybe they feel the Town shouldn't vote on the question.
Robert's Rules doesn't talk about a motion to pass over, but it's a Vermont tradition nonetheless. It's closest relative is the motion to postpone indefinitely, which is appropriate after debate on an issue has begun. It requires a second, is not debatable, and takes a majority vote to terminate further consideration of the article.
But listen to what is intended. Perhaps the voter wants to dispose of the warned article, but uses the word "table" in the motion. The voter must understand that "table" is a temporary setting aside of a motion to be raised later on in the meeting. Helping voters fashion and adopt the motions to accomplish their purpose is an essential part of the moderator's duty.
(3). Concerned about judging germaneness? Remember the rule that the only amendments are those germane - that is, pertinent or relevant - to the motions they seek to amend, whether they are amendments of main motions or of other amendments. Remain conservative on this judgment, avoiding later challenges to the validity of the final version of a main motion, by insisting on a narrow range of germaneness. These questions are the most risky, and warrant the extra time needed to ensure the soundness of the vote.
(4). Being rushed into judgment? Moderators routinely bring their copies of Robert's to the meeting, but use them sparingly, because the book isn't easily accessible in the heat of the moment. Keeping up the pace of the day is important, but most moderators could benefit from more small recesses, when problems arise. Better to be sure the first time, than to risk losing the confidence of the assembly with a wrong call.
You can't run a town meeting on automatic pilot. The moderator needs to be alert throughout the day to the details of completing the warning. Others may slumber, but this official must remain totally alert throughout the meeting to what is said (and what is intended, although not said perfectly) and what the voters do through their motions and votes.
Go to bed now. A good night's sleep is probably the best preparation for the challenge of running a healthy, active town meeting. Trust your instincts. Allow yourself to rise above a rule-bound view of the meeting. The voters know how to act; they just need to be reminded now and then.
Moderating a meeting is one of the highest responsibilities, because it is so intense an intellectual experience and so critical to the proper running of a town. You can never lose by being too open, too understanding, or too honest in admitting your limitations. Making democracy work is hard work, and everything depends on the moderator.
"Voice from the
Past" by Paul Gillies
Opinions Volume 2 Number 3 March
2000
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1. Checklists Are Public Records. State law requires the clerk to file a copy of the exit or entrance checklist and preserve it as a public record for at least five years. Copies of these checklists must be available to the public at cost. 17 V.S.A. § 2590(e).
2. Political Parties Get One Checklist Free. 17 V.S.A. § 2141 requires the town clerk, to provide the chair of each political party who requests it, at least 30 days before an election, a copy of the most up to date checklist. This checklist must be given free of charge.
3. Listers Cards Are Public Records. According to a 1970 decision of the Vermont Supreme Court lister's cards are public records. The public should be given reasonable access to these records. Matte v. Winooski, 129 Vt. 61 (1970).
4. Personal Property Tax Inventories Are Not Public Record. 32 V.S.A. § 4009 exempts personal property tax inventories from the public records law. Note that this exemption does not apply to the listers, selectboard, treasurer, tax collector, town grand juror and town attorney who all may have access to these records. However, in order to protect the property owner from public disclosure of potential trade secrets, the law provides a $100 fine against anyone who discloses this confidential information.
5. Attorney May Not Disclose Records In His or Her Custody Without Court Order Or Permission Of The Municipality. Occasionally, an attorney hired by a town will receive a public records request for disclosure of records in his or her custody. Because the lawyer's code of ethics prevents the disclosure of records without permission of the client, these records cannot be obtained by a request to the attorney. Rather, the individual seeking the documents should ask the selectboard for the records, which must be disclosed unless an exemption from the public records law applies. 1 V.S.A. § 317(b)(7).
6. Letters To The Selectboard Are Public Records. Unless a particular exemption to the public records law applies, open letters sent to the selectboard for their consideration, including complaints about the quality of their work, are part of the public record and must be made public upon request. 1 V.S.A. § 317.
7. Voters May Only Consider Whether To Make Constable Appointed Position At An Annual Meeting. A citizen who missed the deadline for petitioning to get an article on the annual meeting warning to make the constable an appointed position still wished to bring the petition in and asked the town for a special meeting to consider the issue. Unfortunately, 17 V.S.A. § 2651(a) permits a town to vote to appoint a constable only at "an annual meeting." This means that selectboards do not have the legal authority to put the question to the voters at a special meeting - either because of a petition or on their own motion.
8. Position Of Second Constable May Only Be Abolished By The Voters. In one town the selectboard determined that they no longer needed a second constable and wrote the warning without listing this position. The second constable took issue with this decision. 17 V.S.A. § 2646(7) provides that the voters elect "a first constable, and if needed a second constable, unless the town has voted to authorize the selectmen to appoint constables as provided in section 2651(a) of this title...." Because the law does not expressly give the selectboard the authority to determine whether a second constable is "needed," the safest bet is to leave it to the voters to decide.
9. Voters Can Require Supermajority Vote Of Constable Question. 17 V.S.A. § 2651(a)(b) provides that if a "written protest" signed by at least 5 percent of the voters is filed with the town clerk at least 15 days prior to the vote, then a two-thirds majority vote is required to pass the article to appoint the constable. Note that the vote must be by Australian ballot.
10. If Terms Of Sale Change A Contract For Sale Of Town Property The Notice Must Be Corrected And Re-posted. 24 V.S.A. § 1061 provides the general rule that if the legislative body of a town or village wishes to sell municipal real estate, the board must, at least 30 days before the proposed sale provide notice of the terms of the proposed sale by posting a notice in the clerk's office plus two other public places within the municipality and also publish the notice in a newspaper of general circulation within the municipality. The purpose of this rule is to permit the voters to petition for a vote on the proposed sale. If the terms of the sale change after the initial posting and publication, the new proposal must be posted and published so that the voters have an opportunity to disapprove the new terms sale as contemplated by the statute.
11. Selectboard May Buy Land Without Voter Approval If There Is Money In The Budget. In one town the selectboard was offered a deal too good to refuse - a local historical building for only a few thousand dollars. There was enough money in the selectboard's budget to cover this unanticipated expenditure - but the question arose whether a vote of the people was required before the town purchased property. There is no law requiring such a vote. Under the board's general authority to oversee the business of the town it has the power to purchase property upon a majority vote of the board (indeed, many boards routinely vote to purchase property at tax sale.) 24 V.S.A. § 872. Note, however, that there are examples in Vermont in which a board goes forward and makes a purchase and then the voters do not approve the budget necessary to renovate the property so that it can be used for the intended purpose. (NOTE: Charter towns should check their charter.)
12. Manager May Not Be Appointed Interim Clerk. By law, a town manager is not permitted to hold any elective office in the town or town school district. 17 V.S.A. § 2647. This rule will prevent a manager from being appointed (even on a temporary basis) to fill a vacancy in the office of the elected town clerk since this is an elective office. The better course of action for the town is to allow the assistant clerk to act as the interim clerk while the board contemplates how to fill the vacancy by appointment, or until an election is held. 24 V.S.A. §§ 962, 963.
13. CLARIFICATION: Some Selectboards Hire CPAs To Assist The Board Without Voter Approval. Last month when we opined that a "selectboard may not ordinarily hire a CPA without a vote of the town" we overstated the case. While it is true that 24 V.S.A. § 1690 provides a mechanism for the board to ask the voters to decide whether to hire an accountant, the statute requires a specific article warned as follows: "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." (Emphasis added.) A local accountant was quick to point out to us that it is customary for selectboards to hire CPA's to assist them in their own assessment of the fiscal health of the community, and that because this is not specifically to "aid the work of the auditors" they do so without a vote of the people.
14. Person Temporarily Living With Aging Parent May Retain Residency. An individual who temporarily moves to a neighboring town to be a full-time caregiver for a parent may retain his or her legal residency in the town of origin for voting purposes. Section 2122 of Title 17 of the Vermont Statutes provides, that for the purpose of voting, "resident" means "a person who is domiciled in the town as evidenced by an intent to maintain a principal dwelling place in the town indefinitely and to return there if temporarily absent, coupled with an act or acts consistent with that intent. If a person removes to another town with the intention of remaining there indefinitely, that person shall be considered to have lost residence in the town in which the person originally resided even though the person intends to return at some future time." Note that different rules apply when determining residency for tax purposes, or Vermont State College in-state tuition purposes.
15. Union School District Auditor Vacancies Filled By Union School Board. Vermont law provides that if there is a vacancy in the Union School District board of auditors, the vacancy "shall be temporarily filled by the board of school directors of the union school district as soon as practicable after the vacancy occurs and the temporary appointee shall serve until the district, at its next meeting, fills the vacancy for the remainder of the unexpired term." 16 V.S.A. § 706l. Despite the language in the statute that such vacancy "shall" be filled, as a practical matter, it is sometimes difficult to find someone who is willing to fill the position and the vacancy remains.
16. Union School District Report Must Contain A Report Of The Auditors. 16 V.S.A. § 706(q)(c) provides that "the board of directors shall prepare an annual report concerning the affairs of the union district and have it printed and distributed to the legal voters of the union at least ten days prior to the annual union district meeting. This town report must include an auditor's report showing a detailed statement of the financial condition of the school district for their fiscal year, a classified summary of receipts and expenditures, a list of all outstanding orders and payables more than thirty days past due, and show deficit, if any, and such other information as the municipality shall direct. Note that it is not uncommon for auditors to review and accept the report of the CPA and use this in lieu of their own report.
17. The Clerk May Reject Petition Received With Insufficient Signatures. When the clerk receives a petition that is submitted with insufficient signatures she must reject the petition unless there is time before the petition deadline for petitioners to obtain additional signatures. It is up to the clerk's discretion to decide whether she will just reject the petition (because it does not have enough signatures) or hold it and accept additional signatures in the succeeding days. When a petition is rejected for not having sufficient signatures you may resubmit the same signatures in addition to the new signatures required to meet the 5%.
18. CORRECTION: Property Transfer Tax Return Required Upon Sale Of 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. The Vermont Department of Taxes has addressed by rule 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 more information contact the Vermont Department of Taxes.
19. NEW LAW: Union School Board Nominating Petitions. State law relating to nominating petitions to elect directors of union school boards has been changed to permit a minimum of thirty voters or one percent of voters to sign a nominating petition, whichever is less. This change became effective on February 3, 2000, but will not impact elections scheduled on March annual meeting day because filing of petitions needed to occur by the sixth Monday prior to election day, before this change was signed into law.
20. Public Notice Required For Hearing On Proposed Zoning Changes. 24 V.S.A. § 4404 and § 4447 set out the requirement for public notice for a hearing before the selectboard on a proposed zoning amendments. The law requires the legislative body to make copies of the proposal and any written report of the planning commission available to the public upon request. Public hearing notice must also be given not less than 15 days prior to the date of the public hearing by publishing the date, place and purpose of the hearing and the text or partial text (specified in the statute) of the proposed amendment in a newspaper of general publication in the municipality affected, by posting the same information in one or more public places within the municipality. In the alternative, the board may make reasonable effort to mail or deliver copies of the full text, or a concise summary of the text of the proposed amendment and the public hearing notice to each voter and to each owner of land within the municipality.
21. Failure To Publish Notice Of Public Hearing Requires New Hearing. In one town the notice of a public hearing was inadvertently not published. In this case the board should simply re-warn the hearing and try again. Publication is required under 24 V.S.A. § 4407.
22. Clerk Must Record Copy. The general rule is that a clerk must simply record a document when it is presented for recording. If the document presented is a copy and not an original this presents some problems since, once copied into the town records a person searching the records will have no way of knowing that what he or she is looking at is not an original document. Therefore, when given a copy for recording, the clerk should clearly indicate in the margin that the recording is of a copy. This will hopefully prevent someone from being misled later on. It is up to the attorneys to decide whether a recorded copy of a document has any legal force or effect!
23. Siblings May Serve on Selectboard. There is no statutory conflict for more than one family member to serve on a board. For example, if the electorate chooses to vote in a brother for a term when the other brother is already serving, both may serve. Note that if the election is by Australian Ballot, then the potential for conflict is not an appropriate subject for discussion at the open town meeting as it is not germane to any of the articles. Conflicts that might arise should be addressed by the board on a case by case basis.
24. A Person May Run For Town Incompatible Offices. On occasion, a person will submit nominating petitions for more than one office. If the offices are incompatible and the person wins both, then the person must choose which office to serve in, thus creating a vacancy in the other. Although this may seem unfair to other candidates, this is not prohibited by statute. If both petitions are properly submitted to the clerk, the candidate must be included on the ballot for each office.
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Opinions of Opinions
Opinions
Volume 2 Number 3 March 2000
top of this section March Opinions "Table of Contents" Secretary of State's Home Page
Message from State Archivist Gregory Sanford:
Protecting Records from Fire Risk
The question was raised whether to put a sprinkler system into a municipal records vault. The
thinking on sprinklers has changed in recent years, particularly after halon fire suppression
systems were banned for
environmental reasons. Current thinking supports well-installed, well-maintained sprinkler systems, combined
with fire prevention and other steps. A sprinkler system should be considered in conjunction with:
You should have hand held extinguishers on-site (type of
extinguisher will depend on various factors ; carbon dioxide extinguishers, for
example, leave no residue after use and are effective for electrical equipment
but not organic materials; A-B-C extinguishers may be the best general type to
have at hand). Dry versus wet pipe sprinkler systems also have various pros and
cons which should be discussed with the contractor. Above all else, have
disaster preparedness and response plans in place (and copies at the local fire
department). For more information look at Conservation on Line
(http://palimpsest.stanford.edu).
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The Zoning Board of Adjustment
The zoning board of adjustment is the body in town that makes most of the important permit decisions for the town and decides appeals from decisions of the zoning administrator. The following is an overview of the rules that regulate this important board.
1. Zoning Board of Adjustment Is Created by the Selectboard.
After a town adopts zoning bylaws, the selectboard must appoint three to nine members (for terms established by the selectboard) to serve as a zoning board of adjustment. The legislative body determines the size of the board when it is formed, and may, by resolution, alter its size.
2. Organization. A
board of adjustment elects its own officers, adopts rules of procedure (Robert’s Rules for Small Boards, or any other rules, including ones it makes up itself) and schedules its
regular meetings at its organizational meeting each year. Meetings of the board are held at the call of the chair and at such times as the board may determine. 24 V.S.A. §§ 4462.
3. Meeting Procedures and Practices.
4. Scope of Authority
5. Decisions. The zoning board of adjustment must make its decision, including findings of fact,
within forty-five days after completing its hearing. Within that period it must send the decision
to the appellant by certified mail. Copies of the decision must also be mailed to every person or
body appearing and having been heard at the hearing, and a copy must also be filed with the
administrative officer and the clerk of the municipality as a part of the public records.
If the board of adjustment does not render its decision within the 45-day period, the board will
be deemed to have
rendered a decision in favor of the appellant and granted the relief requested by the applicant on
the 46th day. 24 V.S.A. § 4470.
6. Exclusivity of Remedy. If an interested party fails to appeal a decision of the zoning
administrator to the board of adjustment, he or she will have waived the right to appeal
to the Environmental Court, except in cases where the constitutionality of a bylaw is in
question. 24 V.S.A. § 4472.
The Opinions Zoning
Page
Opinions
Volume 2 Number 3 March 2000
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Wednesday, March 1, 2000
(At least 6 days before the election) Towns using voting machines shall hold a public meeting for candidates and interested persons to inspect the machines. Notice of the meeting shall be placed in at least two public places and the Town Clerk's office. 17:2498(b).
Thursday, March 2, 2000
Town Meeting Warning must be published in newspaper by this date if town reports has not been distributed otherwise. 17:2641(b).
Monday, March 6, 2000
In towns using Australian Ballot, voters may request absentee ballots until 5:00 P.M. (or the closing of the Town Clerk's office). An authorized person may apply for an absentee ballot on behalf of an absentee voter until 12:00 noon. 17:2531(a).
Prior to the day of the election, Board of Civil Authority (BCA) must appoint Assistant Election Officers for Town Meeting. 17:2454.
Town Clerk or other presiding officer must notify Election Officers of their hours and duties. 17:2455.
Last day for BCA to meet to revise checklist before Town Meeting. 17:2142.
Last day for legislative body to hold public informational hearing on any public question to be voted by Australian Ballot at Town Meeting. 17:2680(g).
Tuesday, March 7 TOWN MEETING DAY
(Before polls open) In towns using Australian Ballot, Town Clerk must give Election Officials a list of those voters who have already cast absentee ballots. 17:2548(a).
In towns using Australian Ballot, list of absentee voters must be posted at polling place(s) and in Town Clerk's office upon opening polls and must remain posted until all voters are counted. 17:2534.
Towns using Australian Ballot must open polls no earlier than 6:00 A.M. and no later than 10:00 A.M. (opening hour set by BCA). Polls remain open until 7:00 P.M. 17:2561.
For those who became eligible to vote after the second Saturday prior to Town Meeting and had notified Town Clerk of intent to apply for addition to the checklist, the BCA may act on applications until polls are closed. 17:2144(c).
Presiding officer must ensure that there is no campaigning of any kind and no campaign literature displayed, placed or distributed inside the polling place. On walks and driveways leading to a polling place, no candidate or other person may physically interfere with the progress of a voter to and from the polling place. 17:2508.
Thursday, March 9, 2000
(Within 48 hours of the close of polls) Town Clerk shall deliver one certified copy of return to the Office of the Secretary of State, county clerk and other district clerks. 17:2588.
Tuesday, March 14, 2000
(Within 7 days after election) Last day for Selectboard or Town Clerk to warn a run-off election if there was a tie vote for any Australian Ballot race at Town Meeting. 17:2682(e).
Friday, March 17, 2000
(Within 10 days after election) Last day for a defeated candidate requesting recount of an election voted by Australian Ballot to file a petition with the Town Clerk. 17:2683.
(Within 10 days after the election) Deadline for a voter to file a request for a recount with the Town Clerk of any issue voted by Australian Ballot. 17:2688.
(Within 10 days after Town Meeting) Last day for Town Clerk to certify result of voting if vote was required before an act of the General Assembly takes effect. 17:2663.
Last day for candidates for Town Meeting local election who are spending more than $500.00 to file second campaign finance report with officer with whom nominating papers were filed. 17:2822.
Wednesday, March 22, 2000
(Within 15 days after an election) Last day a voter contesting any Australian Ballot vote can file complaint with Superior Court. 17:2603(c).
Wednesday, March 29, 2000
(15 days after the warning of the run-off election) First day a run-off election may be held. 17:2682(e).
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April 2000 Calendar
Saturday, April 1, 2000
Last day for trailer or mobile home parks to be licensed by municipality. 24:2232(4)
Wednesday, April 5, 2000
(22 days after warning: warning within seven days after election) Last day a run-off election may be held. 17:2682(e)
Thursday, April 6, 2000
(Within 30 days of Town Meeting) Last day legislative body can accept petition signed by five percent of the registered voters requesting reconsideration or recission of a Town Meeting article. 17:2661(b).
For further information,
please contact
Web Editor, Editor, Opinions
at 802-828-2363 or email
webeditor@sec.state.vt.us
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Every March local government takes center
stage. Even with all of the drama going on in the state house, it is
local government and local issues that are in the spotlight. You
can look at any newspaper in the state and you 