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 10

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Message from the Secretary	Table of Contents
I don’t know about you, but every year I look forward to Vermont League of Cities and Towns’ town fair. It is not just that I enjoy the turkey dinner, or going around to all of the booths, collecting candy, stress balls or pencils from businesses that work with our towns. It is not even the chance to see lots of big equipment in one place, or to see who is going to win the plow rally that gets me down to Town Fair. Rather, it is the chance to see old friends and colleagues from around Vermont. Clerks, listers, road commissioners, selectboard members, from all four corners of the state -- all in one place. This year was no different from the others. The turkey was good and the conversation even better. But best of all were the awards. Five individuals were recognized for their lifetime achievements as public servants and for their dedication to their communities. I want to congratulate Stephan Morse, President of the Windham Foundation, recipient of the Town Government Award; John Hall, former Town Manager of St. Johnsbury, who was named Municipal Person of the Year; Graham Govoni, lawyer and chair of the Hyde Park DRB and Rescue Squad volunteer, recipient of the Town	Message from the Secretary "Voice from the Past" by Paul Gillies Opinions of Opinions Celebrate Democracy Join the Vote Parade UCC Filing Update Kids' Web Page October Calendar Vermont Public Service Awards Chittenden County Honorees Looking Ahead Opinions Newsletter Home Page
Government Award; Theodor Friedman, longtime Winhall Selectboard member, recipient of the VLCT Lifetime Achievement Award, and Betty Wheeler, former Town Manager of Middlebury, recipient of the VLCT Lifetime Achievement Award. These special Vermonters represent the best of our state. Their contributions benefit not only their own communities but all of Vermont. Deborah L. Markowitz Secretary of State

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YEARNINGS

People are at their best when they tell you their dreams. They may be unrealistic or whimsical, but explaining their vision of the perfect job, the dream house, the essential challenge, only improves our understanding and respect for them. It’s good to have ambitions. Without them, we’d have to rely on negative thoughts to get us through the year.

This is a season for negative thinking, to be sure. Elections seem to bring out the worst in many people. The parade of public officials seeking our support, from whatever political persuasion, forces many voters to confront their deep-seated distrust of government generally and politicians specifically.

Candidates don’t just run for an office, of course; they run against their opponents, and they don’t seem timid in making accusations of incompetence, arrogance, or moral imperfection in those they want to beat. This barrage of negative advertising leads many people, otherwise unengaged in the political process, to conclude that all officials are that way, and further abandon the democratic process out of a generalized disgust for the whole business.

This is nothing new, of course. Look back at the elections of the 19th and early 20th century, and you might be shocked at how brutalizing the election process used to be. William Slade called U.S. Senator Samuel Phelps a drunkard and a liar in a campaign in the 1830s, while today the attacks are more subtle, if no less harsh.

We survived those campaigns, and we’ll survive the ones held this year too, with a traditional mixture of good humor and optimism that’s always been a part of the human condition. We heal easily. We forget and forgive, and move on, once election day has passed.

But during October of this election year, expect the temperature of the election to rise, even as the temperature outside drops and the trees grow bare. A quick look at the letters to the editor, even a short ride down a neighborhood street to view the lawn signs, or a passing glance at a television screen, will suffice to convince you that tens of thousands of Vermonters are actively engaged in the 2000 elections, and not as bystanders or bemused spectators.

Ultimately, these clashes between neighbors over candidates and issues are not bad for democracy. They are its essential nutrient. Not caring is much worse, because it is an expression of undernourishment.

The challenge is to design a political campaign that leaves people feeling inspired, rather than sickened by the process. Candidates try, of course, but most don’t seem to tap into the heart of the electorate. There are just too many layers of suspicion to break through.

To run for office ought to be the most noble of callings, and we should reward those who decide to step forward and expose themselves to the harsh light of a campaign with our respect and attention. That they have defects, limits, or characteristics that make them seem less than perfect is no reason to regard them as beneath our contempt. They are only people like us, except they had the courage and ambition to step out front of the parade and ask to be chosen as leaders. Hating our leaders leads nowhere but down. And down is nowhere to go. Some day we should hold an election that allows us to start over again with fresh ideas and fresh ambitions, free of the disabling memories and lurid stories of the past, but until that day maybe we could begin to look at the candidates and the issues with more respect and less skepticism. Maybe our dream could include a democracy that works, and maybe if we dreamed more about that it would come true.

"Voice from the Past"  by Paul Gillies
Opinions     Volume 2  Number 10     October 2000

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1. Tax Sale Is Not The Only Way To Collect Delinquent Taxes. In one town no one bid on a parcel of delinquent tax property. The town was also not interested in purchasing this property so the Delinquent Tax Collector wanted to know if she had any other options. Tax sale property is only one method of collecting delinquent taxes. 32 V.S.A. § 5251. In the alternative, the collector could take a variety of steps to recover the taxes:
   

• Foreclosure: A foreclosure action is a legal action brought in superior court to allow personal property (and real property, if there is insufficient personal property) to be attached and sold to satisfy the debt to the town. This action can only be brought if the taxes remain unpaid for two years or longer, up to 15 years. 32 V.S.A. § 5061.
  
  
• Distraint: Distraint is the seizure of personal property to enforce payment of taxes. The property can be held and then sold if payments of the taxes are not made. 32 V.S.A. § 5161.
  
  
• Action at Law: An action at law is a collection action brought in superior court which can permit you to attach property or garnish wages. An action at law may also be brought in small claims court. 32 V.S.A. § 5221.

We advice you to consult your attorney before taking any of these steps.

2. 2. Town Should Not Have Policy Of Bidding At All Tax Sales. One town made the mistake of adopting a policy of bidding at all tax sales in the amount of taxes, penalties and interest due. 32 V.S.A. § 5259. This policy resulted in the purchase of a mobile home of no value, which cost the town money to remove. The best policy is to have the delinquent tax collector describe, in advance of the sale, each parcel to be sold so that the selectboard can decide on a case by case basis whether it is in the interest of the town to bid on the property.
   
3. Tax Sale May Include Water And Sewer Delinquencies. According to 24 V.S.A. §§ 3504, 3612 delinquent water and sewer charges can be collected in the same manner as delinquent property taxes. This means that when person is delinquent in both taxes and water and sewer charges all of these  delinquencies may be combined and collected together. Of course, the collector should set each delinquency out separately in the notice of delinquency that is sent to the taxpayer so they know the basis of each delinquency.
   
4. When Tax Bill Is Returned To The Town Because Of Town’s Error No Penalty Or Interest Should Be Charged. In one town a tax bill was returned to the town because of the town’s error in addressing the envelope. In this case it would be unfair to charge the landowner interest and penalties for his or her late payment. The town should resend the bill, giving thirty days to make payment. Any bookkeeping problems can be cleared up by the board of abatement. (24 V.S.A. § 1534(a)(4).)
   
5. Listers Can Decide To Accept Postmark Date On Grievance Request. In one town the listers received a request for a grievance hearing one day after the deadline; however, the letter was postmarked on the deadline date. 32 V.S.A. § 4404. The board of listers should adopt a policy of whether or not to accept grievance requests by the postmark date and inform the taxpayers of the policy. Meanwhile a fair result would be to accept the request as timely. Remember, when in doubt, err on the side of the taxpayer!
   
6. Town Should Take Care When It Gives Preferences To Local Job Applicant. It is common for municipalities to include a local preferences in their hiring policies. However, in order for the town to “discriminate” against out of town applicants it must have a good reason for doing so. Courts have found that an understanding of and commitment to the community, and an ability to get to work quickly in the case of an emergency are all valid bases for giving preference to applicants residing in the community. Note, however, that the Vermont courts have not considered this issue, so by including it in your policy you may be taking a chance that a court would find it unconstitutional (violation of the equal protection clause of the fourteenth amendment).
   
7. Towns Must Have a Policy On Sexual Harassment. Vermont state law requires towns to adopt an employment policy prohibiting  sexual harassment in the workplace. 21 V.S.A. § 495h. VLCT has a model ordinance to assist you. The policy must be posted in a prominent place in the workplace and must be given to each employee. The policy must include:

• a statement that sexual harassment in the workplace is unlawful;
• a statement that it is unlawful to retaliate against an employee for filing a complaint of sexual harassment or for cooperating in an investigation of sexual harassment;
• a description and examples of sexual harassment;
• a statement of the range of consequences for employees who commit sexual harassment;
• if the employer has more than five employees, a description of the process for filing internal complaints about sexual harassment and the names, addresses, and telephone numbers of the person or persons to whom complaints should be made; and
• the complaint process of the appropriate state and federal employment discrimination enforcement agencies, and directions as to how to contact such agencies.

8. Selectboard Must Take Steps To Protect Employee From Ongoing Harassment. In one town a member of the public was regularly coming into the town office and making inappropriate sexual comments to one of the town employees. It is the selectboard or town manager’s responsibility (or the town clerk, if it is his or her assistant who is feeling harassed) to take steps to protect employees from harassment from the public. While the law recognizes that the board does not control what members of the public might do, it nevertheless requires the employer to take some action, if reasonably possible, to protect the employee from being subjected to the harassing conduct.
   
9. Municipalities Are Not Generally Required To Grant Employees Leaves Of Absences.  In one town an employee wanted to take a leave of absence to take a temporary job in a warmer place for the winter. Vermont’s employers, including its municipalities, are not generally required to grant their employees paid or unpaid holidays or leaves of absences except for family or medical leave. However, state law requires that a leave of absence be granted for jury duty, military duty, and legislative leave. 21 V.S.A. §§ 499, 491, and 496.
   
10. Fire District Does Not Have To Bid Out For New Truck Purchase. Unless the district’s charter provides otherwise, there is no legal requirement that a fire district (or town) bid out a purchase of a new truck. Note, however, that the prudential committee has a fiduciary duty to the taxpayers to get the best deal possible. School districts do have bidding requirements. 16 V.S.A. § 559.
    
11. School District Must Get Voter Permission To Use Surplus. One school district asked whether it could use surplus funds (from the prior budget) to fund a new project instead of borrowing from a bank to get a tax anticipation loan. So long as the taxpayers vote to allow the surplus to be spent in this way the board is free to spend this money.
    
12. Surplus May Not be Carried To New Budget Year. Towns and school districts may not carry a surplus to a new budget year without voter approval. The voters may decide to use the surplus to reduce taxes, or to pay for a new project, or they might agree to put the money into a “sinking fund to help with future purchases.” Note that an exception to this rule applies to highway projects, which permits unexpended funds to be carried over to the following year, to be spent for the purpose originally voted. 19 V.S.A. § 312
    
13. Vermonters Who Leave The Country May Remain On The Checklist Where They Last Resided. The law permits individuals who move abroad to retain their United States citizenship and continue to vote in the place they were last registered. It is not unusual for the checklist to  continue to list them at their last address, even though others may have moved into the home and are registered to vote there. 17 V.S.A. § 2122 provides in pertinent part “ a person shall not gain or lose a residence . . . while living outside the United States.”
    
14. The Selectboard May Set The Town Right Of Way At Less Than Three Rods If It Deems Appropriate.  A selectboard has the ability to set the town right of way at different widths for different roads. Ordinarily, town roads are assumed to be fifty feet wide (three rods) unless there is evidence that the right of way was established at a lesser width. The selectboard, as the board that oversees the highways of the town, has authority to vary the highway widths when it deems appropriate. So long as a board has a rationale for treating a particular road differently than others, then the courts will permit it to do so. Note that to expand or limit a right of way width the selectboard needs to follow the formal process for laying out the road. 17 V.S.A. § 708.
    
15. Special Meeting Can Be Warned For The Same Time As The General Election. The town may warn a special town meeting to consider a petitioned article or an article submitted by the selectboard for the same time as the general election. This meeting must be warned according to law, not more than forty or less than thirty days before the voting. 17 V.S.A. § 2642.
    
16. Petitioners May Not Revoke a Petition Once Submitted. There is no method in the law to ask petitioners to revoke and resubmit a petition, and no method for petitioners to request the revocation of a petition. Remember that the petition comes from everybody who signed it – not just the person who organize the petition drive! However, if enough signatories remove their names after submission to bring the remaining signatures below the qualifying threshold, the petition can be invalidated. Walker V. Town of Dorset, 139 VT.227(1981.
    
17. Petition Language Cannot Be Changed Except To Correct Technical Deficiencies. An article submitted by petition must be warned as presented to the board. The town may only  correct technical deficiencies. Note however that if the town votes its public questions on the floor, the voters (including the selectboard) can ask for clarification and may amend the language to clarify the intent of the petitioners.
    
18. Selectboard Member May Serve As Road Commissioner. It is not incompatible office for one person to serve as selectboard chair and road commissioner. It is common across Vermont for a member of the selectboard to play these multiple roles; however these officials must take extra care to remove themselves from decision making that could present a conflict of interest.
    
19. Selectboard May Not Vote To Give Themselves Exigency Pay. The voters set the selectboard’s stipend or, if they fail to set the amount, the auditors set the salary. The selectboard may not vote to pay itself an additional $10/hr for emergency response since responding to town emergencies is part of the duties of the board however rarely they might occur. The voters or the auditors may, however, approve the additional salary.
    
20. Selectboard Members May Be Paid For Non-Board Work Performed For The Town. A selectboard member may be paid for jobs performed for the town that are outside the normal scope of the selectboard’s duties if the board so votes. Note that the selectboard member who is to receive the payment should not participate in the discussion or the vote on the issue of payment. (Although he or she can submit a request which is the subject of the discussion.) The board member should also not vote on or sign the orders for payment to him or herself.

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.

Opinions       Volume 2 Number 10        October 2000
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Looking Ahead to November....

Wednesday 1
(At least six 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 V.S.A. § 2498(b).

Saturday 4
(At least three days prior to election) By this date Board of Civil Authority must designate pairs of Justices assuring political balance in each pair to deliver ballots ito ill and disabled voters in towns using Australian Ballot. 17 V.S.A. § 2538(a).

Monday 6
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 absent voter until 12:00 noon. 17 V.S.A. § 25319(a).

Board of Civil Authority must appoint a Presiding Officer if the Town Clerk or other regular Presiding Officer is unable to preside at the election or if more than one polling place is used. 17 V.S.A. § 2452.

Prior to the day of the election, Board of Civil Authority must appoint Assistant Election Officers. 17 V.S.A. § 2454.

Town Clerk or other Presiding Officer must noticy election Officers of their hours and duties. 17 V.S.A. § 2455.

Last day for Board of Civil Authority to meet to revise checklist before the election 17 V.S.A. § 2142.

(Before polls open) Town Clerk must give Election Officials a list of those voters who have already cast absentee ballots. 17 V.S.A. § 2548(a).

(Before polls open) The Presiding Officer of each polling place must post a copy of the warning and notice, sample ballots, and voter information cards in a conspicuous place in each polling place before the plls open on election day. 17 V.S.A. § 2523(a).

(Before polls open) Presiding Officer shall ensure that signs informing voters of procedures for depositing ballots are placed on or near the ballot boxes. 17 V.S.A. § 2523(b).

Tuesday 7
GENERAL ELECTION DAY. 17 V.S.A. § 2103(15).