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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 3 Number 8 |
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Redstone Building |
Vermonters are proud of our state’s rich history.
Vermont was home to the first school for higher education of women,
established by Emma Willard at Middlebury in 1814; we were the first state
to offer troops in the Civil War; and we adopted the first constitution to
outlaw slavery in 1777. Careful preservation and maintenance of Vermont’s
governmental records by this office – through our Archives division - and
by town and city clerks across the state has enabled us to know and
appreciate our unique history.
But our records of government are important not just as historical artifacts. They are important for keeping government accountable. They help us to manage risk by providing evidence to support government action, and they help to safeguard our rights as citizens. It is important that we continue to safeguard the public’s right to know and that we ensure future generations will benefit from the history we make today, by preparing for the record-keeping challenges of the new millennium. As more of our offices rely on computers, e-mail and the internet we are creating a new kind of government records – records that never reach paper. It is important, therefore, that we begin to identify the electronic records that should be preserved and to put in place record preservation systems that will ensure that all of our important records – whether on paper or on the computer - will be available to our children’s children. We look forward to working with you on this important task. After all, the things we do today become the history of tomorrow. |
Message from the
Secretary |
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A Voice from the Past
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"Voice from the
Past" by Paul Gillies
Opinions
Volume 3 Number 8 August
2001
Love of Town
As an object of affection, a town is a curious subject. We love our children, our parents, our spouses; we love our favorite sports teams, novels, movies; we love our country and our state. But a town is something different. It’s tough to love it unconditionally.
After all, a town has sharp teeth: it sends us a tax bill (and sells our house when we don’t pay it); it denies us a zoning permit; it tells us to leash our dog; its officials stop to tell us when we’re too noisy. Developing a love for a town must come in spite of the personalities, in spite of the "obvious" mistakes made in policy, the memories of how others were mistreated, the hundred little cuts that never quite healed, that come as a natural part of living in a place for a long time.
But there are times when love of town just can’t be restrained. It comes over you like a summer shower and drenches you unexpectedly. It sideswipes you driving through town, when you see what they’ve done to the town square, the cemetery or the library. It is sentiment, pure and unadulterated, and it feels so good.
Last month the little town of Peacham dedicated a historic blacksmith shop in the village. For years it had been an eyesore, a falling-down brick structure with a lot of history. But then an intrepid group of locals got behind the town historical society, raised money and dedicated hundreds of hours of volunteer labor and materials to secure its foundation, reset each of the bricks and fill it with artifacts from the blacksmith’s trade, to serve as a small museum.
Love of town was everywhere—unabashed, unconditional, open affection for the place they made their home and for each other. They didn’t lather themselves with pride and self-congratulation: they did out of a complete selflessness, a total commitment to preserving something that had come before them that they wanted to continue after they had left the stage: for the sake of their heritage. It was truly inspiring to watch.
It was such a perfect display of democratic spirit. It sounds corny, but all differences among people—age, wealth, education, pedigree—disappear when a town gets together to accomplish something like this. Everyone is entitled. Everyone is a member of the family. Everyone participates.
One speaker proudly announced that not a dollar of federal money, not a dollar of state money, went into the restoration. No politician stepped forward to hand out a big check and take advantage of the crowd. No political ideas were present. It was a timeless occasion: it could just as easily have been 1820, but for the occasional car that passed the site.
We are too much involved with ourselves. Getting and spending, noses close to a computer screen or television set, dreaming of the next purchase, the next pleasure, too often detract from the most important experiences in our lives. The time we spend together with others, not because because we’re related to them or because we have to deal with them at work, but because we choose to do so out of a sacred duty to something larger than ourselves, whether it’s a town, a church, a school, a club, are essential parts of our lives.
We could sit around a bonfire and try to invent things that would bring our town together, but the way it works best is just to look and see what needs to be done and then get down to doing it. A few dedicated people with an inspiration are the most powerful force on earth some days. They infect others with their hopes and dreams, and the most impossible barriers come down with little effort.
The power of a town to inspire is one of our greatest untapped resources, and no town should neglect this opportunity to bring people together—not just because the project accomplishes some local improvement, but because of the changes it brings in the people who participate. Why not?
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Opinions of
Opinions
Opinions
Volume 3 Number 8 August 2001
1. Officials Must Provide Copies of Public Records Upon Request. Vermont’s Public Records Law requires that public officials, including all municipal boards and officers, must provide copies of all documents that are not exempt from disclosure upon the request of any person. 1 V.S.A. § 316. We occasionally hear from public officials who have misunderstood the procedural language in section §318(a) and believe that public officials must only produce records for inspection - but are not required to provide copies. Although section 318 only mentions public inspection of records, section 316 clearly provides that a person may request copies of those records. Note that if a request is made for a very large number of documents the public official may charge for staff time after the first 30 minutes, and may take a reasonable amount of time to copy documents (not more than 10 days). 1 V.S.A. §§ 316(b)-(e), 318(a)(5).
2. Public Agency Does Not Have to Convert Electronic Documents. When a town maintains public records in an electronic format, nonexempt public records shall be available for copying in either the standard electronic format or the standard paper format, as designated by the party requesting the records. An agency may, but is not required, to provide copies of public records in a nonstandard format, to create a public record or to convert paper public records to electronic format. 1 V.S.A. § 316(i). This means that if a town maintains records in a particular database it is not required to convert it to another upon request of a member of the public. Note, however, that if a public official or agency chooses to create a public record or convert to a nonstandard format, it may charge for staff time that exceeds 30 minutes.
3. Town Must Hold Public Hearing Before Australian Ballot Vote. Towns using the Australian ballot system must hold a public hearing within the 10 days preceding the meeting. The public hearing must be warned at least ten days before the hearing. 17 V.S.A. § 2680(g). Although boards frequently warn the public hearing at the same time as the special or annual meeting, the law does not require this. Ten days warning is sufficient for the public hearing, even though the meeting or election itself must be warned for 30 to 40 days.
4. Elected Town Clerks and Treasurers must be legal voters in the town. 17 V.S.A. § 2646 requires that in order for a person to be elected clerk or treasurer of a town the individual must be a legal voter of the town. Note that state law does not require an assistant town clerk or treasurer to be a legal voter or resident of the town. 24 V.S.A. §§ 1170, 1563.
5. Board Correspondence Must Be Authorized By The Board. Chairs of municipal boards do not have authority to act on their own making representations for the board. This means an individual board member may not write a letter using town or official stationery, representing that the letter is on behalf of the board without a motion passed at a duly warned meeting authorizing the board member to send the letter on behalf of the board. 1 V.S.A. § 172. Except as authorized above, no board member of any municipal body has any authority to act alone unless that authority is derived from a specific state statute or municipal charter. An official who acts on his or her own may run the risk of personal liability because the official is acting outside of his or her authority as a board member.
6. Sender is Responsible to Ensure Those cc’d Get Copy of Letter. It is a best practice to make certain that copies are sent to everyone listed as having been cc’d on your correspondence. The addressee of your letter may rely on your representation that you have already sent copies of the correspondence to other necessary parties. This is especially important for resignations and other official letters where more than one board or person may need to be involved in the process.
7. Election officials must allow citizens to observe the counting of ballots. 17 V.S.A. § 2581 provides that, so long as observers do not in any way interfere with the counting, election officials must allow citizens to be present and watch the counting of votes. The law states that observers can be asked to remain outside the guardrail or within a designated area, but must be able to see the counting process. The presiding officer can establish a "guardrail" or indicate the designated area within the room where the counting takes place.
8. Party and Candidate Pollwatchers May Observe the Voting. 17 V.S.A. § 2564 provides that each party, candidate, or committee may have two representatives outside the guardrail (at least six feet from the voting booths and ballot boxes) for the purpose of observing the voting process. These people have the right to hear the name of each person seeking to vote. However, election officials do not have to do extra work for the observers. For example, if the observers leave the poll for an hour, election officials do not have to go back and reread names of persons who voted during the observer’s absence.
9. Small Towns May Have To Show Checklist During Polling Hours For Party or Candidate Review.
In towns with less than 500 voters on the checklist, each party, candidate, or committee may make a request in writing at least 12 hours before the opening of the polls to the board of civil authority, to have the right to view the checklist two times during polling hours. 17 V.S.A. § 2572. This provision is intended to give parties and candidates an alternative way to see who has voted in small towns where it might be difficult for a candidate or party to find a citizen who could observe or pollwatch during the entire day. The presiding officer can reasonably require that the viewing take place at times when the election workers handling the entrance checklist are not busy with voters.10. A Person Serving as Both Selectboard member and Justice of the Peace May Only Vote Once On the Board of Civil Authority.
The board of civil authority (BCA) is made up of the selectboard, the clerk and the town’s justices of the peace. However, a person cannot cast two votes on the BCA by virtue of being elected to two the different offices. It is not unusual for one person on the board holds more than one position. The number of board members on the full board is also reduced by one for purposes of calculating a quorum. For example, if a town normally has a BCA made up of five selectboard members, 15 justices and a town clerk, the board would be 21 members and a quorum for other than election purposes would be 11. If, however, in the same town, two selectboard members were also elected Justices of the Peace, the board would be 19 members and a quorum for other than election purposes would be 10.11. Constable’s Authority Limited to Town. Whether elected or appointed, Vermont’s constables do not have any authority outside of the boundaries of the town in which he or she was elected. State v. Hart, 148 VT 104 (1987). In contrast, municipal police officers were given authority by the Legislature in 1988 to exercise statewide jurisdiction. Constables were not included in this law. For this reason, a constable should be very careful not to misrepresent his or her authority outside of the town of jurisdiction. For example, if a constable represented him or herself to be a "police officer" with full authority when in a car accident out of state, it is possible that the constable may be charged as impersonating a police officer under a statute in the other state.
12. Second Constable Is Not Assistant to First Constable. Towns may choose to elect or have the selectboard appoint a second constable if it feels it is necessary. 17 V.S.A. § 2651a. The second constable is not a deputy – but rather, is an independent official with all of the same powers of the first constable, with the exception of one. Only the first constable has the duty to collect taxes in the event no collector is elected or appointed. 24 V.S.A. § 1529.
13. Constable or Selectboard Member Can Be Called To Kill Injured Deer. One of the less pleasant duties a constable or selectboard member is called upon to perform is to kill a deer which has been so injured that its chance for recovery is remote. 20 V.S.A. § 1936a, 10 V.S.A. § 4749. In addition to the constable, a game warden, deputy game warden, sheriff, deputy sheriff, police officer or state police may kill a deer. The official who kills a deer in the course of his or her duties must report the incident to the fish and wildlife commissioner or a game warden and the deer shall be disposed of by the fish and wildlife department.
14. Board Can Restrict Use Of ATVs on Town Highways. An all-terrain vehicle may not be operated along a public highway (unless it is not being maintained during the snow season) unless the highway has been opened to all-terrain vehicle travel by the local governing body and the town or village posts this on the roads. A road is opened to ATV use by a vote of the selectboard (or village trustees) at a meeting of the board at which the issue was on the agenda. A board that votes to open a road can change its mind – but it should post a notice of the prohibition to alert ATV drivers who may have become accustomed to using the road in question. 23 V.S.A. § 3506. Note however that an ATV that is being used for agricultural purposes may not be so limited. The law permits the ATV to be operated not closer than three feet from the traveled portion of any highway for the purpose of traveling within the confines of the farm.
15. Municipality Cannot Prevent Minors From Crossing the Road In ATV. The law creates rules to determine whether a minor may cross a public highway in an ATV. 1. No minor under 12 may cross the road. 2. A minor between the age of 12 and 16 must be under the direct supervision of a person 18 years of age or older. 3. Minors who are over the age of 16 may freely cross the road. Because there is a specific law on this issue, the general enabling legislation that permits a municipality to adopt an ordinance regulating the time, manner and location of operating ATVs within the town will not permit the town to adopt stricter or more lenient rules. 23 V.S.A. § 3506, 3510.
16. A Person Can Shoot Dog Who Is Attacking Animals Only If Last Resort. A Dog or wolf hybrid that is outside an enclosure or that is not restrained but who attacks a person, domestic animal or fowl may be killed so long as it is reasonably necessary to discontinue the attack. This means that a person who sees a dog kill his sheep may not later kill the dog. Rather, the law permits him to make a complaint to the selectboard who can have the animal killed if necessary, and seek damages from the dog owner. 20 V.S.A. § 3545, 3745, 3748. There is an old statute that also permits the selectboard to offer a $5.00 bounty on dogs that are caught killing or "worrying" sheep. 20 V.S.A. § 3749.
17. Animal Control Officer Can Get Warrant To Seize Dog. Vermont law permits a local official to obtain a warrant to search and seize a domestic pet or wolf-hybrid under the town’s authority to do so. (For example, vicious dogs, dog ordinance violations, damage to sheep or other domestic animals, etc. . . ) The warrant will only be issued if the officer has first attempted to search for or take the animal with permission of the owner, and has been turned away. The animal control officer, constable or other authorized local official must apply to a judicial officer for a warrant to search the properties of the owner of the animal or any other property if the officer has reasonable cause to believe that the animal may be on it. If the judicial officer is satisfied that there is a reasonable cause to believe that the animal is on a property, the judicial officer will issue a search warrant authorizing a law enforcement officer of the state of Vermont to search the property and premises for the animal within a specified period of time. 20 V.S.A. § 3551.
18. Town May Vote To Be "Dry".Old Vermont law permits the voters to decide whether the town should grant licenses for the sale of wine, beer or liquor. 7 V.S.A. § 221 provides that "licenses of the first or second class shall not be granted by the control commissioners or the liquor control board to be exercised in any city or town, the voters of which vote "No" to the question: "Shall license be granted for the sale of malt and vinous beverages?" Licenses of the third class shall not be granted by the liquor control board to be exercised in any city or town, the voters of which vote "No" to the question: "Shall spirituous liquors be sold in this town?" Licenses of the third class shall not be granted to any open air or wayside dancing pavilions."
19. Selectboard Member Who Holds Liquor License In Town May Not Participate As Member of Liquor Control Commission. Vermont law provides that "A member of a local control board to whom or in behalf of whom a first or second class license was issued by that board shall not participate in any control board action regarding any first or second class license." If a majority of the members of a local control board are unable to participate, that action must be referred to the state liquor control board for investigation and action. An application for a first or second class license by or in behalf of a member of the local control board or a complaint or disciplinary action involving a first or second class license issued by a board on which any member is a licensee must also be referred to the state liquor control board for investigation and action. 7 V.S.A. § 223.
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.
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Grants Available |
Grants Available
Opinions Volume 3 Number 8 August 2001
This is a reminder that there are still grants available for municipal clerks who would like an on-site assessment of their recordkeeping needs. Grant deadlines are the first of every month and pay for a one-day visit by an archivist who will work with the clerk to develop the assessment report. The clerk is then responsible for developing an action plan for addressing those needs over time. The grants are available through the Vermont State Archives and Vermont Historical Records Advisory Board.
Several clerks have received the grants, either as a stand alone project or as part of a collaborative effort involving other nearby clerks' offices or local repositories. For example, the Chittenden-Grand Isle Clerks' Association has received a collaborative grant. One goal of the collaborative is develop a common view of their needs and develop general guidelines for meeting selected recordkeeping concerns.
The State Archives welcomes suggestions for workshops or other collaborative projects that would be of use to the clerks. For further information on the program visit http://vermont-archives.org/boards/vhrab/vhrab.htm or e-mail Gregory Sanford at gsanford@sec.state.vt.us.
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August's Calendar
Opinions
Volume 3 Number 8 August 2001
August's Calendar
Wednesday, August 15
Last day to transmit abstract and a photocopy of the grand list to the director of property valuation and review.
32 V.S.A. § 4185(a)
Thursday, August 16
Bennington Battle Day
1 V.S.A. § 371
Looking ahead to September…
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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