|VERMONT SECRETARY OF STATE - Jim Condos|
|State of Vermont
Office of the
Secretary of State
Volume 3 Number 9
back-to-school time again for Vermont’s youngest citizens. For many adults
in our communities September brings a renewed interest in the issues of
how our schools are run. The quiet summer board meetings become a thing of
the past as parents come to express concern about the bus route, the
school schedule or a curriculum or faculty change. Confusion about the
laws that apply to school district governance can bog down school boards
and frustrate citizens. That’s why my office and the Vermont School Boards
Association collaborated to publish a new handbook entitled "Rules on
Rules on School Governance is an easy to read handbook designed to help school board members, school administrators and citizens understand the basic laws that apply to Vermont’s school districts. It discusses the different types of school districts in Vermont and explains the powers and duties of the School Board and other school district officers as well as the electorate. In addition, Rules on School Governance provides in depth information about the requirements of the open meeting and the public records law as well as everything you need to know about adopting school budgets, to electing officials, to ethical requirements of school officers.
It is my hope that this handbook will be a useful resource for local officials and members of the public to help answer important questions about the mechanics of the process of school district governance.
If you wish to order a copy of Rules on School Governance, call 802-828-2363. The Handbook is also available on line at http://www.sec.state.vt.us.
Secretary of State's Home Page
A Voice from the Past
"Voice from the
Past" by Paul Gillies
Opinions Volume 3 Number 9 September 2001
In Wilmington, there was a zoning vote. Opponents circulated a petition asking for a revote (reconsideration), with a requirement that the simple majority be replaced by a two-thirds vote the second time around. A few weeks earlier, the same scenario was played out in Warren, a hundred miles to the north.
Before these issues arose, the people who give advice to towns on such questions (in Montpelier and around the state) had never thought of whether the right to insist on a higher standard of voting applied to reconsideration.
The legal question is interesting, but more intriguing is the fact that the same issue arose at nearly the same moment in two regions of the state. Okay, maybe somebody talked to someone else; maybe people read about the idea and applied it to their own situation, but there is no evidence of a connection. It is just as likely that this idea arose from two separate fact patterns in different communities. Because that has happened time and again in history.
The electric motor, for instance, was invented by a Brandon blacksmith and a Calais tinkerer at about the same time. Neither knew about the other’s work. In another example, our law of town meeting procedure was formed from a series of cases brought at the end of the Civil War, when towns tried to avoid their obligation to pay bounties for war service to returning veterans, arguing that the right parliamentary process wasn’t followed. No obvious connection can be found linking the towns. There just came a time when the idea was ripe, and people acted.
We celebrate Vermont towns for their diversity. What is true for one is never easily applied to other places. But then experience teaches that, what might happen - will happen - often at the same time, in different places.
At town officers’ conferences, this curious phenomenon is regularly exposed, as officials open up and share their experiences with each other, revealing common problems and similar challenges. The realization that we are not alone can be a real comfort – especially when we are faced with situations that may be uncomfortable.
To those who find town life endlessly fascinating, the suggestion of some deeper connection between what happens in our towns may cause us to wonder about the source of these public controversies. It is like a subterranean river that flows mysteriously from one region to another, rising in different towns at the same moment to intrigue us. What invisible hand is at work here?
Some think it viral. In the month of August, in five different towns, war was declared between managers and clerks. Different incidents triggered these hostilities, but at the heart of all of them was a common theme—two officials trying to occupy the same space and exercise the same authority. It may be small comfort to the combatants, but this fight is institutional: the law invites it. As long as two strong wills clash, neither giving way in the face of a challenge from the other, there is bound to be trouble. But why five in August?
Neither science nor history will explain the coincidences of municipal life. To those who daily toil in town offices, in and out of the vault all day, the consolation that someone else is having the same experience does not lessen the intensity of the conflict or the hurt feelings that usually attend public controversy. Those who advise towns on proper procedures find comfort in being able to answer arcane questions deftly, because the issues are so familiar. But to the rest of us, who look into the kaleidoscope of town life and see patterns that repeat themselves, the symmetry is completely engaging.Secretary of State's Home Page
Opinions Volume 3 Number 9 September 2001
1. Every Voter Has The Right To Mark His Or Her Ballot Conveniently And Privately. Now that more voters are choosing to vote early in the Town Clerk’s Office, private space must be provided so that the voter can vote secretly. Some clerks have set up voting booths in the office. If you do not have space to set up your voting booths, you must offer some other private space for voters to mark ballots. If you do not have any private space, you may want to suggest that the voter take the ballot out to his or her car and then return it. (After July 1, 2001 a voter can take his or her ballot out of the town clerk’s office.) 17 V.S.A. §§2502(b), 2504.
2. Selectboard Records And Schoolboard Records Should Be Maintained Separately In The Town Clerk’s Office. Because the town school district is a separate municipal corporation from the town or city the records for each municipal corporation should be maintained separately. This will help to avoid confusion later when officials or members of the public need to refer to the records.
3. Public Must Be Given Reasonable Opportunity To Be Heard At Public Meeting. 1 V.S.A. section 312(h) makes it clear that a board must allow public comment at its meetings. However, boards and citizens may have different interpretations of what type of rules provide citizens a "reasonable opportunity" to be heard. We think that it very much depends on the particular subject and circumstances of the meeting. It may be appropriate, depending upon the matter under consideration, for a board to have different rules about the amount of time given for public comment, and whether the comment is allowed at the same time the board is discussing the particular matter. We encourage board chairs to outline the board’s rules on public comment at the start of the meeting so that citizens who wish to participate will know what to expect.
4. Deliberative Sessions Are Not Subject To The Open Meeting Law. Local boards that act in a quasi-judicial capacity, such as zoning boards of adjustment, may deliberate in private. Note that a deliberative session is not the same as an executive session. Rather, it is outside the open meeting law altogether. 1 V.S.A. §312(e), (f). (Quasi-judicial proceeding is defined in 1 V.S.A. §310(5).) So long as the board provides a written decision, which is a public record, the board may get together privately (without warning the meeting or inviting the public to attend) to discuss and reach a decision in a particular case.
5. Assistant Treasurer Should Be Re-Appointed After New Election. The Treasurer should re-appoint his or her assistant treasurer after each reelection or reappointment of the Treasurer. The reappointment must then be filed with the Town Clerk. A new oath of office should be taken and filed at the same time. If an assistant treasurer leaves office, a revocation of the appointment should be filed with the Town Clerk. 24 V.S.A. §1573.
6. Person Votes Where His Or Her Dwelling Is Located. The law provides that a citizen must register to vote in the Vermont town or city where his or her "principal dwelling place" is located. 17 V.S.A. §2122(b). This means that if a person's property is located partly in one town and partly in another town, the person must register to vote in the town that the house or dwelling place is located.
7. Public Bids Are Not Required For Towns Or Town Cemeteries. There is no state statute that requires towns or town cemeteries to use a public bid process. However, many town officials decide that it is good public policy to use a public bid process. Some towns have adopted policies, some have adopted ordinances, and some towns include bidding requirements in their charters. We encourage every town to using a public bid process when a public official may be an interested bidder. This will allows the public to have confidence in the selection process. (Obviously, a board member cannot vote on the selection decision if he or she is one of the bidders.)
8. The Governor Appoints To Fill The Vacancy Of An Independent Justice Of The Peace. Vermont law does not tell us who can make recommendations to the Governor when the Governor fills a Justice of the Peace vacancy created by the death or resignation of an Independent justice. Section 2623 of Title 17 provides that the Town Committee of the political party of the justice who created the vacancy may make recommendations to the Governor, and then the governor may appoint a qualified person, whether or not the appointee is recommended by the party committee. The law does not suggest a procedure for recommendation for filling the vacancy of an independent justice, although the vacancy will be filled by appointment by the Governor.
9. Tax Appeal Hearings May Be Continued To Accommodate Appellant or Board. Vermont law requires the Board of Civil Authority to begin tax appeal hearings no later than 14 days after the last date allowed for the notice of appeal. Once the hearing is convened it may be "continued to another date" if there are too many hearings or if the board wishes to agree to an appellants request for a different hearing date. 32 V.S.A. §4404 requires the hearings to start within the 14 days but does not require that the hearing be completed on that date. If a hearing is postponed rather than convened and then continued to another date, the board should obtain a waiver from the appellant. It is within the discretion of the board to allow a different date or insist on going forward on the scheduled date.
10. BCA May Conduct Tax Appeal Hearing Without Taxpayer Present. If a person bringing a tax appeal to the BCA chooses not to attend the hearing, the BCA must still hold the hearing, consider the appellant's written submission, inspect the property and render a decision. However, if the appellant refuses to allow an inspection of the property (both interior and exterior of any structure), then the appeal will be considered withdrawn. 32 V.S.A.§4404(c).
11. Lister May Go On Site Visit But May Not Speak. When the BCA sends three of its members to do a site visit as part of the tax appeal process, the site visit is an open meeting to which any member of the public, including a lister, may choose to attend. The site visit may not be used, however, to provide any additional evidence or testimony – beyond what the BCA members obtain from seeing the property itself. A lister who attends such a visit must be very careful not to use the visit as an opportunity to further explain how the listers came up with their appraisal.
12. Selectboard May Appeal Decision of Board of Civil Authority. If a selectboard is unhappy with a decision made by the board of civil authority on a tax appeal it may appeal the decision. A decision of the board of civil authority may be appealed to the state appraiser or to superior court. An appeal to either forum must be filed no later than 30 days after the day of mailing of the notice of decision by the town clerk. 32 V.S.A. § 4461.
13. Notice Of Appeal Goes First To BCA And Then To Interested Parties And Court/PV&R. The Notice of Appeal from a decision of the BCA is first filed with the clerk of the BCA who must give the appellant a list of all interested parties with instructions to serve notice on them. VRCP 74. A copy of this notice must also be served on the Superior Court or the Director of Property Valuation and Review. As a practical matter this means that if the Selectboard is appealing a decision of the BCA it must notify the Taxpayer – and if the Taxpayer is appealing, the listers must be notified.
14. Listers May Adopt Internal Rules On Access To Computer. In one town the board of listers sought to restrict access to computer database until a newly elected lister learned how the program worked. Like most local boards, the board of listers acts by a majority of its members. If the board chooses to restrict access to a computer it may do it by majority vote - just as it can set other procedures and policies for the board. Note, however, that this right to adopt procedures must be balanced with the individual lister’s right and obligation to perform the functions of his or her office. This means that if a person is not trained on a computer system, the board could choose not to give that person a password until they are trained.
15. Money Sent To A Town For Reappraisal Should Be Set Aside For That Purpose. 32 VSA 4041a provides that a municipality "shall be paid $6.00 per grand list parcel per year from the equalization and reappraisal account within the education fund, to be used only for reappraisal and costs related to reappraisal of its grand list properties and for maintenance of the grand list." This law does not prevent the money from being deposited with the general accounts of the town but it should be carried forward from year to year until it is spent for reappraisal. In order to carry the money forward the town (by vote at town meeting) should create a designated fund for this purpose.
16. Interest On Money Held In Tax Sale Escrow Goes To Help Taxpayer Redeem Property. When a tax sale is held and the taxpayer wishes to redeem, the interest on the escrow account should go back to the property owner to assist with the redemption (after all, they pay interest to the person who purchased at tax sale.) As a practical matter, when the taxpayer comes to redeem the property, the amount required to be paid by the taxpayer is reduced by the amount of interest earned by the money that had been held in escrow. Note that while the statute is not specific in this regard, case law is very clear that during the tax sale process the town has a fiduciary obligation to the delinquent taxpayer. Bogie v. Town of Barnet, 129 Vt. 46 (1970).
17. School Directors Cannot Force Town/School Treasurer To Allow District To Directly Handle Payroll. The town school treasurer is charged with managing the accounts for the town school district. 16 V.S.A. § 426. This means that the treasurer is required to oversee all check writing on the accounts. The treasurer may appoint an assistant to do the payroll (so long as the treasurer oversees the work) but cannot be forced to do so. However, a school district that wishes to have its treasurer in closer proximity can, at its next annual meeting, choose to elect a separate school district treasurer.
18. Special Meeting Notice Must Include Purpose of Meeting. 1 V.S.A. § 312(c)(2) requires the town to notify the board members as well as the public and any press that has asked to be notified of the time place and purpose of a special meeting at least 24 hours before the meeting. This may not be as formal as providing an advanced agenda - but the general purpose of the meeting must be provided as part of the meeting notice. Note that the notice must also be posted in or near the municipal clerk's office and in at least two other public places in the municipality.
19. Reporter Must Be Given Agenda For Regular or Special Meeting On Request. 1 V.S.A. § 312(c)(d) provides that the ‘agenda for a regular or special meeting shall be made available to the news media or concerned persons prior to the meeting upon specific request." This means that a board should have available an agenda for its regularly scheduled meetings (as well as its special meetings) in advance of the meeting so that the town may respond to requests from the local media or from the public.
20. Clerk May – But Does Not Have To – Come In On Saturday to Issue Marriage License. Many town clerks are asked to come in at odd hours to issue marriage licenses to out of state visitors getting married in Vermont – or to Vermonters who – in their excitement – forgot to get the license. All clerks prefer to issue marriage licenses during their regular office hours – but many will come in if they are able, to issue a license in these special circumstances. What is important is that the clerk have a neutral policy – treating in state couples the same as out of state – and applying the same policy to those seeking civil union licenses.
In our monthly Opinions we provide what we believe the law requires based upon our legal judgment, years 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.Secretary of State's Home Page
BIENNIAL PURGE OF THE CHECKLIST
Biennial Purge of the ChecklistOpinions Volume 3 Number 9 September 2001
Reminder: Each Board of Civil Authority must send a letter certifying Compliance with 17 V.S.A. § 2150 to the Elections Division, Office of the Secretary of State by September 20, 2001.
The law requires certification that purging of your checklist has been done in each odd numbered year in order to keep checklists in reasonably up to date condition. As we have suggested at our workshops, adding and removing (purging) names to the checklist can be done on a regular basis throughout each year at the convenience of the Board of Civil Authority. You do not need to wait until the odd numbered year; in fact, we recommend that each town develop a reasonable timetable for continuously updating the checklist, given the size of your checklist. The only time that you cannot remove names from the checklist is in the 90 days immediately prior to an election. The certification requirement is to make sure that each town reviews and removes names from its checklist not less than every other year.
Federal law also requires that in addition to removing names, certain records be maintained regarding adding names. The federal law requires that we survey each town clerk and then report to the Federal Election Commission in March of each odd numbered year on a variety of checklist maintenance issues. (Please review the survey that each town clerk received from us last spring.) Some towns are still not keeping the statistical information required by the federal survey. We need to work together to keep the necessary records to provide this information. (See August 1999 Opinions article by Ellen Tofferi.) If you are using the NIMRC system, perhaps Ernie can modify or add fields to make it easy to keep the required data.
On May 11, 2001, we mailed an Elections Bulletin to each Town Clerk giving detailed instructions for the purging and maintaining of the checklist including record-keeping requirements. In late July, we mailed a reminder memo to each Town Clerk which included a form letter that can be used to certify that names have been removed from the checklist in compliance with 17 V.S.A. § 2150.Secretary of State's Home Page
Opinions Volume 3 Number 9 September 2001
Monday, September 3
Labor Day 1 V.S.A. § 371
Saturday, September 15
Last day for town clerk to remit to state treasurer an accounting of dog and wolf-hybrid licenses sold and remit the license fee surcharge for an animal and rabies control program.
20 V.S.A. § 3581(f)
Saturday, September 15
Last day for board of civil authority to review most recent checklist to determine whether those listed are still qualified to vote.
17 V.S.A. § 2150(c)
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