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 9

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

Message from the Secretary	Table of Contents
September means back to school for many of our youngest Vermonters. In my own family it means nervousness about the first day of kindergarten, and for my older children, excitement about seeing old friends, meeting new teachers, and buying fresh school supplies. This year, in many Vermont communities back-to-school will not just be about classrooms and textbooks. In addition to learning reading, spelling and math, nearly 10,000 of our children will also be learning about government, politics and the upcoming presidential elections. Students at schools in every county of Vermont will be participating in Kids Voting Vermont. Kids Voting Vermont is a non-profit, non-partisan organizationinitiated by this office to teach our children the value of participating. With our youngest citizens voting at an anemic 26%, it is more important than ever to teach our children the value of getting involved. With Kids Voting	Message from the Secretary "Voice from the Past" by Paul Gillies Opinions of Opinions Introductions Message from the Tax Department September Calendar Vermont Public Service Awards Addison County Honorees Looking Ahead and Special Recognition Opinions Newsletter Home Page
students learn how their vote gives them power, they learn about government and politics and develop practical skills of information gathering and decision making.  They also get hands on experience at the polls on Election Day by voting in a mock election. This program can make a difference over night.  Not only does it bring parents, teachers and community members together to teach our children the importance of voting, but it also increases adult voter turnout.  When St. Albans piloted the program for us in the March presidential primary, adult voter turnout increased by 17%! If you have any questions about Kids Voting Vermont or want to how to involve you community, please call me at 802-828-2148. Deborah L. Markowitz Secretary of State

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PRIMARY CONCERNS

The 43rd Vermont Primary is coming up September 12. It’s not an election really; it’s a contest between candidates to determine party nominations for public office. The whole idea was promoted as progressive back in 1914 and 1915, when it was first seriously discussed, because it took the nomination process out of the smoke-filled rooms (and documented corruption) of the caucus or convention and made it public.

Turnout is low in a primary. You can expect about twenty percent of your checklist to show up, either in person or by absentee, and that’s a gift to anyone who worries about how they’ll do on November 7, when the General Election is likely to send 80% of your checklist to your polling place. You have a good opportunity to work out the bugs in the system through the primary, and you should be sensitive to the lessons this election offers.

Did you have enough election assistants during critical times of the day? Were your people ready to respond when that voter came into the polling place and only then discovered her name wasn’t on the checklist? How well did you handle the usual difficulties stemming from people campaigning outside the polling place?

It’s important to recognize when you can be easy and when you have to be hard in a primary. The rules about no more than five minutes in a booth or no more than three ballots (one after another, as the voter spoils them) can be treated with sufficient discretion by election officials to ensure that no voters lose their right to vote because of these rules. Be charitable with these voters, and give them the latitude to get their votes in, even if it’s a little inconvenient.

There is, however, no variance process available for absentee voters who fail to put both the voted and unused ballots in the proper envelopes to return them to the clerk’s office or polling place. Missing an unused ballot? The vote cannot be counted. Failed to fill out the certificate envelope for either the primary or the general election? The vote cannot be counted. These may sound draconian, but they are rules you cannot ignore.

Just be careful. That’s the best general advice there is. Be careful about allowing anyone in the polling place to conduct an open discussion of candidates’ strengths and weaknesses. It may be interesting or entertaining, but it is simply bound to create confusion and misunderstanding that may lead to new issues when close races are brought to the attention of the superior court on recounts or election contests, with the accusation that the polling place was not the neutral, impartial place it was supposed to be.

Be careful about handling the security of the ballots, ensuring that no one other than a voter sees the face of a voted ballot (or learns even what ballot in the primary was chosen by the voter) before the polls close on election day, that no one can link any particular ballot to a particular voter (except when someone foolishly signs a ballot, making it entirely spoiled).

Be careful about keeping everybody who works at the polling place up to speed about the duties that go with their jobs. Make sure those voting booths have a good pencil and no election materials posted on the walls. Make sure people fold their ballots (both voted and unused) before they come out of the booth, and know which one is voted and which unused, so they don’t have to open them up on the outside of the booth.

Respect the privacy of the voter but preserve the public nature of the polling place. Respect the rights of candidates and supporters to campaign but don’t let anyone in the polling place wearing a sticker or button or carrying election material so others can see it. Respect the law and no one can fault you.

We conducted election workshops during the weeks leading up to the primary, and had a chance to talk to clerks, JPs, and select board members about the process, and this was an encouraging experience. You know what’s right and what’s wrong. Oh sure, there’s the occasional misunderstanding, but based on our experience you’ll be ready for both elections. We know you’ll be fine.

"Voice from the Past"  by Paul Gillies
Opinions       Volume 2  Number 9     September 2000

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1. Clerk May Decide Whether To Permit Campaign Literature To Be Posted. As campaign season heats up we begin to get calls from clerks who are being asked to post candidates' posters or to keep candidate brochures on the counter. The town clerk (and in some cases the selectboard or town manager) has the authority to decide what kinds of information may be posted on town bulletin boards or distributed in town buildings. All decisions must be applied uniformly. We generally recommend that towns not permit political advertising in order to avoid the appearance of using town resources to promote one candidate or another.

2. Lawn Signs May Not Be Placed In Highway Right Of Way. As lawn signs begin to dot the landscape local officials are often called up to remind politicians and their supporters of the need to comply with Vermont's Sign Control Law. (10 V.S.A. Chapter 21). Vermont Sign Control Law prohibits off-premise signs as well as all types of signs within the limits of public highway rights-of-way. The obvious exceptions are traffic control signs. (Most public highway rights-of-way in Vermont are at least 49.5 feet wide, extending 24.75 feet on either side of the centerline, and often are wider.) In addition, the Vermont Sign Law allows municipalities to adopt local sign control ordinances that are stricter than state law, and placement of signs on private property may be regulated by the local zoning bylaws. In addition to prohibiting signs in the highway right-of-way, state statutes also prohibit posting any kind of sign or notice on utility poles, regardless of whether the pole is within the highway right-of-way or on private property.

3. Town Officials May Endorse Candidates. An appointed local official who was being asked to endorse one of the local house candidates called to see if any law would permit him to do so. The simple answer is yes. No law prohibits town officials from getting involved in political races. However, officials who choose to endorse a candidate should take care not to use town resources in any way (phone, fax, copy machine, town office, etc. . . ) Officials who serve as election officials should also take special care not to express their opinion in the polling place.

4. Candidates May Not Serve As Election Officials. Vermont law provides that "no person shall serve as an election official in any election in which his [or her] name appears on a ballot of the Australian ballot system as a candidate for any office unless he [or she] is the only candidate for that office." The only exceptions to this rule are for candidates to the office of moderator, justice of the peace, constable, town clerk, clerk-treasurer, ward clerk, and inspector of elections. Note that when an Australian ballot is not used, no candidate for office may serve as an election official during the election to fill the office for which he or she is a nominee. 17 V.S.A. § 2456.

5. The Spouse Of A Candidate May Serve As An Election Official. Vermont law does not prohibit the spouse of a candidate from serving as an election official. However, we advise towns that, if possible, it is best to avoid hiring relatives of candidates as election officials as this can create an appearance of bias.

6. Candidates, Spouses And Children Of Candidates May Not Deliver Ballots. Every election, Justices of the Peace are called upon to deliver ballots to physically disabled or ill voters who have requested to vote by absentee ballot. Generally, ballots are delivered by a pair of justices who represent two different political parties. However, if there is not enough justices to make up the required number of pairs, a person may be designated by the board of civil authority, to be selected from lists of registered voters submitted by the chairs of the town committees of political parties, and from among registered voters who in written application to the board state that they are not affiliated with any political party, to help deliver the ballots. No candidate or spouse, parent, or child of a candidate shall be eligible to deliver ballots unless the candidate involved is not disqualified from serving as an election official. 17 V.S.A. § 2538.

7. Selectboard Members Have No Authority To Co-sign Checks. In one town the selectboard wants to require that all checks over a certain amount be co-signed by a member of the selectboard. There is a clear balance of power in local government wherein the selectboard has the authority to sign warrants to be drawn on the town account, and the treasurer pays the orders, and the auditor audits the accounts to ensure that the proper amounts have been paid out. 24 V.S.A. §§ 1576, 1578. Only the treasurer has authority to sign the checks for the town. (Note also that 17 V.S.A. § 2647 specifically prohibits a selectboard member from serving as town treasurer. The rationale for this prohibition is that an individual who signs the orders should not also have the authority to sign the check.)

8. People May Petition For Vote On Proposed Bylaw Amendment. In one town the citizens petitioned for a bylaw amendment. After the planning commission's hearing the amendment was sent to the selectboard who never took up the matter. If the board fails to act on the proposed amendment for one year after the date of the final hearing of the planning commission, the citizens may petition (with 5% of the voters) to put the amendment to a town vote. The bylaw voted on must be the same as the bylaw that was given to the selectboard to consider, and the petition for the vote must be submitted to the clerk within sixty days of the end of the one-year period. 24 V.S.A. § 4404(i). If no one petitions the board for a vote then the proposed bylaw amendment is considered disapproved.

9. Zoning Amendments Become Effective Upon Passage. Zoning bylaws become effective when they are passed by a vote of the selectboard (urban municipality) or by vote of the people. This is different than the rule that applies to ordinances adopted under chapter 59 of title 24. Chapter 59 provides that an ordinance adopted by the selectboard will not become effective for 60 days following its adoption, so that the voters have an opportunity to petition for a referendum vote. 24 V.S.A. § 1972a.

10. Planning Commission May Hold Hearings On Bylaw Amendment Even If No Plan Is In Effect. A municipality may only adopt or amend its bylaws if it has in effect a town plan. 24 V.S.A. § 4401. The law does not prevent the planning commission and selectboard from holding hearings considering amendments to the bylaws during the time that a plan is expired, so long as the final vote to adopt the bylaw or amendment occurs after the new plan is in effect for the town.

11. Expiration Of Permit Requires New Variance Application. In one town a landowner cried fowl when he was required to seek a new variance for development of his parcel. Ten years prior to this application the landowner had been granted a variance and given a permit to build which was never exercised. Although there is no Supreme Court case law on point, it is reasonable for a town to require a new variance because the criteria for granting variances are grounded in the particular bylaws in effect, as well as the character of the neighborhood, at the time the variance is being sought. 24 V.S.A. § 4468. Over ten years both the bylaws and the character of the neighborhood may have changed so that the previous variance may no longer be appropriate.

12. Selectboard May Not Appoint Planning Commission Alternates. Vermont law permits the selectboard to appoint a board of alternates to serve when members of the zoning board or development review board of a community cannot serve on a particular matter because of conflict of interest or for other reasons. 24 V.S.A. § 4461. Unfortunately, this rule does not permit the board to appoint alternates for planning commissions. The legislature left the planning commission out of the law because it did not want alternates making planning decisions.

13. Interboard E-mails May Violate Open Meeting Law. When using new technology, like e-mail, for communication, boards must be sensitive to possible Open Meeting law implications. Although there is no statute or case law in Vermont that directly addresses the issue of when e-mail communications between board members cross the line into Open Meeting violations, I believe that there are some clear lines we can draw. For example, if decisions about town business were being made through e-mail, those communications would clearly violate the open meeting law. In contrast, if one board member sends a background memo for discussion at a meeting to other board members, that memo would be a public record, but the e-mail would not violate the open meeting law.

14. Personal Agendas Are Not The Same As Conflicts Of Interest. In many communities citizens confuse a board members having a "personal agenda" with a conflict of interest. While sometimes a personal agenda can rise to the level of a conflict of interest is not inappropriate for board members to have personal (or political) agendas. In fact, many of our board members join the board because of what they want to accomplish (lower the tax rate, improve the roads, improve the schools, etc. . .) It is only when a board member is acting in a quasi- judicial capacity (when an individual's rights are being determined by the board) that the board member must be sure that his or her personal agenda will not get in the way of making a fair and unbiased determination based only on the facts of the situation and the law or ordinance that applies. Here, a person's agenda may rise to the level of a conflict of interest requiring recusal from the matter if he or she cannot separate his or her own feelings enough to be an unbiased decisionmaker, or if it would create an appearance of impropriety.

15. Board Of Civil Authority Deliberate After Formal Close Of Evidence. When the Board of Civil Authority is satisfied that all parties have given all of their evidence, and after the report from the site visit, the chair should formally close the hearing. This is a signal that the evidence- collecting portion of the hearing is complete. At this point the board can go into deliberative session. The deliberative session can take place at another time and place and does not have to be warned because it is outside the open meeting law. 1 V.S.A. § 310.

16. Failure To Swear In Witnesses Won't Invalidate Proceedings. Generally, the chair of the board of civil authority swears in all witnesses at the beginning of the proceedings. If the chair fails to swear in the witness it will not invalidate the proceedings, however, if someone lies to the board it could prevent the person from being prosecuted for perjury.

17. An Increase In The Membership Of A Board Comes Into Effect At The Next Election. When a community elects to increase the size of their school board or selectboard from three to five, the additional members of the board are elected at the next special or annual meeting of the town or school district. 16 V.S.A. § 423. If the additional directors are elected at a special meeting the term of those elected for one year shall expire on the next annual meeting day and those elected for two years shall expire on the second annual meeting day following their election.

18. Quit Claim Of Glebe Land Requires Posting By Board. A landowner asked the selectboard to quitclaim the town's interest in a portion of their property that was listed as glebe land of the town. 24 V.S.A. § 1061 requires that at least 30 days prior to the conveyance of town property, the legislative body must give notice of the terms of the proposed conveyance by posting a notice in at least three public places within the municipality, including one near the municipal clerk's office. Notice must also be published in a newspaper of general circulation within the municipality. This notification designed allow citizens to petition for a vote on the conveyance. The law does not grant an exception for glebe lands, quit claim deeds or for sales without compensation. Accordingly, even though the town had not treated this property as its own for many years the board must go through the required public notification prior to signing the deed.

19. The Town Committee Or Three Voters May Make A Request To The Board Of Civil Authority To Have Additional Members Added To The Board Of Civil Authority If There Are Less Than Three Members Of A Major Party Serving On The BCA. The procedures are set out in 17 V.S.A. § 2143. If a written request is filed with the Town or City Clerk, the legislative body shall appoint from a list of six names submitted by the underrepresented party to bring the number of representatives from the party up to three members.

20. When Ballots Are Printed For Any Election, Including A Union School District, The Ballots Must Be Delivered Directly From The Printer To The Town Clerk Or School District Clerk. The security of ballots is important before an election as well as after an election. Ballots must be delivered directly to the Town Clerks so that absentee ballots can only be obtained from the Town Clerks of the member towns for Union School District Australian ballot elections.

21. If A Town Committee Has Failed To Meet Prior To The First Tuesday In September To Meet In Caucus To Nominate Justices Of The Peace, The Town Committee Shall Meet And Nominate Candidates For JP As Provided In 17 V.S.A. §§ 2381-2387. The chairman of the committee gives not less than five days written notice to all members of the committee of the meeting to nominate. The committee nominates JP candidates by a majority of those present and voting. The statement of nomination by committee officers form must then be completed and signed by the chairman and secretary. A copy of the notice must be filed with the statement of nomination before 5pm on September 21,2000.

22. Registered Voters In Vermont Shall Not Lose Residence For Voting Purposes Solely By Living Outside Of The United States. Until the voter returns to reside in the United States, the voter can remain on the checklist and vote by absentee ballot in the town in which the voter last resided.

23. Town Clerks Must File A Copy Of The Official Return Of Votes For The Primary As Soon As Possible After The September 12th Election (but not later than 48 hours after the election) With The Secretary of State, Senatorial District Clerk, County Clerk, And Representative District Clerk. The Elections Division will be mailing copies of the tally sheets, summary sheets, and Official Return of Votes forms to all Town Clerks along with more detailed instructions.

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.