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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 12 |
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Redstone Building |
My family and I always hope for snow at Thanksgiving. It feels like an early holiday gift, giving us a jump-start at skiing, sledding and warming up inside with a cup of cocoa and a jigsaw puzzle. This Thanksgiving was different. Balmy weather, more like early fall than early winter, was a surprise, particularly after this month's early snowstorm. But, while my family would have preferred snow, a few extra days of warmth was not unwelcome. We know that a long, cold winter is most certainly ahead of us. As Vermonters we know well how not to get lulled into a false sense of security. Winter is just around the corner and it is important to be prepared. Snow tires should be on, jumper cables in the trunk, sand and salt waiting, and chains and plows ready to go. At my house, snowpants, hats, boots and mittens are piled up in the mudroom - all ready for when the snow finally flies. Winter is an especially busy season for our towns. We must be prepared to clear the roads of snow and ice, be ready to deal with downed power lines and heat emergencies. Our police, firefighters and rescue squads must be ready to respond when cars go off the road or into each other in our winter snow and ice storms. Let’s use these extra days of warmth to check to see that we are prepared for the months ahead. And let’s not forget to thank those people in our towns who free the rest of us up to enjoy winter in Vermont. |
Message from the
Secretary
December Calendar
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Secretary of State's Home Page
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A Voice from the Past
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"Voice from the
Past" by Paul Gillies
Opinions
Volume 3 Number 12 December
2001
OUR RESPONSIBILITY
There is this town. It is a particularly unhappy town. Following a series of very public, very painful meetings, the chair of the selectboard resigned in anger and frustration; the town manager announced she wouldn’t consider renewal of her contract; and the town clerk and treasurer quit first one office and then the other, all in the same week. It was like one of those westerns where, after the shootout, no one was left standing, except it wasn’t a movie: it was a real tragedy.
The newspaper accounts reported what happened, but failed to tell us why it happened. It is doubtful if anyone really knows. We can only speculate what combination of intense internal pressures, past offenses and misunderstandings, and differences in perspective caused this tragic rupturing of the heart of this town’s local government. Any way you look at it, it’s a sad result.
Not every experience in life needs to stand as a lesson, but this one demands some reaction. I have to wonder, did it have to come to this?
The lack of an organizational model for local government is often cited as a reason for its lack of coordination and balance. Some communities have even thought to centralize their governments by adopting charters that make many offices appointive that are otherwise elective. The town manager system is one attempt to accomplish that, often with uneven results, due to the overlap of authority with other elective officers, including the clerk and treasurer.
But this event was not institutional in nature; it became personal. Good people looked at the anxiety their public lives were causing them and walked. Because the conflict involved strong-minded people in important positions, the drama was played out without much interference from other officials. The public, according to the press accounts, played a kind of Greek chorus role, supporting one or another of the players, and unfortunately not helping the situation. Although the press has an important part in much of what happens in a town, the embarrassment that the publicity caused only made things worse.
There is no municipal SWAT team, ready to be mustered out when a town like this is in trouble. It’s doubtful that a group of state officials, for instance, could have succeeded in bringing some order to the chaos, or even some statewide support group for municipalities. The solution in cases like this is all local. What was needed is for a few good people to step in and provide a measure of leadership in such a situation.
Rank has nothing to do with it. Town life is not hierarchical. That’s what distinguishes it from other levels of government. The lack of a pyramid of authority, while it may cause some hardship, is actually the strength of a town. Officials individually may have different duties, but together they make up the government. Sometimes the responsibility of an office is greater than its legal authority. Sometimes your duty as an official is not found in the law books, but in something greater.
That is the responsibility we have to each other and to the community as a whole to ensure that our town does not fall down or apart, because of a conflict between individuals. We must all be prepared to step into the ring and pull the combatants apart, to restore order and balance, and give the players time to cool off.
It’s sad that in some cases the only way of expressing ourselves is to quit. That is so destructive of the idea that brings us together as a town. Public service necessarily demands that all self-interest be put aside. It requires wellsprings of patience, tolerance and compassion. But there are limits to anything. Sometimes, it’s just too much to bear alone. It’s at that time that others need to step forward and intercede.
We are all relatively competent or incompetent. We have strengths and weaknesses, and that is part of the reason towns are so diverse. No system can avoid the conflicts and hard feelings that come with being close to other people entirely, but a town, with all its various characters and players, ought to make a strong effort to save itself in times of trauma, for the good of the community. We cannot remain spectators when the heart of what we cherish is threatened.
This town will survive. Other good people will step forward and the necessary work will continue, with a few interruptions in service. The former officials may carry scars from the encounter for the rest of their lives. People will say, "Isn’t this the town with all the resignations?" for a while and then the incidents will be forgotten.
Maybe the outcome was foreordained. Maybe nobody could do anything to avoid the resignations. But for the rest of us, this town’s story needs to be understood. Hard feelings, so common to so many offices, should not be allowed to fester. They need to be exposed to the light and treated as any other infection. And that’s everybody’s responsibility.
Secretary of State's Home PageOpinions of
Opinions
Opinions
Volume 3 Number 12 December 2001
1.
Town Can Require Landowners to Connect To Sewer System. When a town or city extends its sewer system, it can adopt an ordinance to require all adjacent property owners to connect to the public system and abandon private septic systems. 24 V.S.A. § 3509. The Sewage commissioners may require that the owners of buildings, subdivisions or developments abutting a public street be connected to the municipal sewage system.2. Water and Sewer Delinquencies Can Be Collected Either By the Delinquent Tax Collector or By Disconnecting Service. Municipalities with water and sewer systems may choose to collect delinquent payments in the same manner as their delinquent taxes are collected or by using the Uniform Water Disconnect statute. 24 V.S.A. § 3504, 5141 et seq. If collected as a tax, the town or city’s delinquent tax collector may bring a tax sale to collect the amount owed. Often the water/sewer charge is collected along with any delinquent taxes owed on the property. In the alternative, the municipality can shut off the water if a person fails to pay their charges. This is a more complicated process, and provides the resident an opportunity to appeal a decision to shut off water.
3. Interest on Delinquent Water or Sewer Payments May Only Be Charged After Vote. Water or Sewer Commissioners in a town can charge interest on delinquent payments for water and/or sewer ONLY if the voters of the municipality have approved an article in the warning to collect interest on overdue taxes in the town. 24 V.S.A. § 5151 and 32 V.S.A. § 5136. The article stays in effect until voted otherwise at a subsequent meeting. Similarly, the trustees or prudential committee of a fire district or water district must place an article on the warning for voters to collect interest on overdue payments for water and sewer before interest can be collected.
4. Selectboard May Not Delegate Approval Of Plan to Voters. Vermont law provides detailed procedures for adoption of a Town Plan, and authorizes the selectboard to adopt the plan unless the voters have elected to have a plan adopted by vote of the people of the town. Because the statute is specific about how the voters get to vote on a plan, and otherwise, specifically requires a vote of the board, the selectboard cannot delegate their duty to adopt the Plan by putting the issue to a vote at Town Meeting. 24 V.S.A. § 4385(c). If the selectboard want the voters to approve the Town Plan, they must first warn an article at an earlier meeting, to have the voters vote to adopt the Town Plan by Australian ballot. The board may take a non-binding "straw poll" at town meeting in order to get the sense of the voters to help them to make their decision about whether or not to approve the plan.
5. Unless the town is an Urban Municipality the voters get to vote on whether to adopt local zoning. 24 V.S.A. § 4303 (10) defines "Rural town" as "a town having, as at the date of the most recent United States census, a population of less than 2500 persons, as evidenced by that census, or a town having 2500 or more but less than 5000 persons which has voted by Australian ballot to be considered a rural town." Section 4404 provides that in a rural town bylaws are voted on by Australian ballot unless the town has voted to allow the selectboard to adopt the zoning ordinance under Chapter 59 of title 24. In that scenario the board adopts the ordinance. The ordinance will not go into effect for 60 days, giving the public an opportunity to bring in a petition of 5% of the voters asking for a permissive vote on the issue. In such a case the bylaws will not go into effect if the voters vote against the bylaw.
6. Selectboard can adopt interim bylaws - without a vote. Vermont law permits the selectboard to adopt interim zoning after a public hearing on the matter, but without a town vote, or planning commission hearings. The interim bylaws are good and fully in force for two years - and can be extended an additional year – so long as the planning commission is working on permanent bylaws. The people can petition for the board to hold a public hearing on the adoption or repeal - but they cannot overrule a decision of the board. 24 V.S.A. § 4410.
7. Reconsideration Vote On Zoning Cannot Require Super-majority if Initial Vote Did Not Require Super-majority. In a recent case involving a vote in the Town of Warren, the Vermont Environmental Court ruled that where a vote on zoning is being reconsidered, the vote must be taken in the same manner as the initial vote. That means that if the first vote required only a simple majority, citizens may not petition for a supermajority vote for the reconsideration.
8. The Clock Doesn’t Start Until All Evidence Has Been Heard. Subdivision decisions must be made within forty-five days of the final hearing or else there will be deemed approval. 24 V.S.A. § 4415. The clock starts ticking when all evidence has been heard and the hearing has been closed. On occasion, a board discovers that critical information was missing, and it re-opens a hearing to get that evidence. When a board re-opens the hearing it is as though the clock never started. After the final final hearing in the matter the clock will start to run fresh.
9. Candidate Petitions Must be Specific. Vermont law requires that candidates petition to get on the ballot for local office in municipalities that use the Australian ballot system for election of officers. These petitions must clearly indicate the office the individual wishes to run for and the length of the term (particularly when there is more than one position open with different terms of office.) 17 V.S.A. § 2681(b). However, a candidate cannot circulate a petition for signatures without a term length and then add or change the term length after signatures have been obtained. For example, a candidate cannot circulate a petition for selectboard without indicating which term he or she is seeking. It is permissible for a person to circulate two or three different petitions for selectboard, one petition for the one year seat, one for the remaining year of a three year term, and one for the three year term, and then wait until the filing deadline to decide which petition to submit to the Town Clerk.
10. Absentee Ballot Pick Up A Success! Town Clerks that held special elections this fall report that the statutory changes to Vermont’s "Early or Absentee Voting" provisions have improved the administration of the elections and saved postage money for the town. Voters can now pick up the ballot at the town clerks office and leave with the ballot. 17 V.S.A. § 2537. Please remember that only the voter can only pick up the ballot and not a ballot for a spouse or other family member.
11. It is permissible for the same person to be elected to serve as Town Clerk/Treasurer and also as Village Clerk/Treasurer. There is no statutory conflict between serving as clerk/treasurer to both the village and the town. In many situations each municipality benefits from the knowledge and experience of the person who has already served in one of the positions.
12. Town Treasurer Should Not Make Out Checks Without Warrant Signed By the Board. In one town the selectboard asked the treasurer to bring already filled out checks to th
selectboard meeting prior to the board’s approval of the individual expenditures. 24 V.S.A. § 1576. The treasurer was correct to decline. Indeed, Vermont law only permits the treasurer to make payments based on properly signed orders of the board or based on certified minutes of the board, signed by both the board’s clerk and chair or by a majority of the board, clearly setting out the amount, and to whom payment is to be made. 24 V.S.A. § 1623.
13. Selectboard May Authorize One or More Members To Draw Orders Without Meeting. Sometimes a board needs to pay bills between meetings. In this case the board can, by vote, authorize one or more of its members to sign orders. The orders must be very specific, and a report must be given to the board so the entire board can know what was paid. 24 V.S.A. § 1623.
14. Certain Elections are By Paper Ballot or Australian Ballot. Some towns elect officers by Australian ballot. In those towns that have not adopted the Australian ballot system for election of officers, Vermont law requires the use of paper ballots for election of selectboard members, listers, auditor, road commissioner, or water commissioners. 17 V.S.A. § 2646. For other votes, paper ballots can be used when at least seven voters support such a request. 17 V.S.A. § 2658.
15. Officers Must Be Elected By Majority Except With Australian Ballot Vote. Local officials who are elected by paper ballot or floor vote must receive a majority of all votes cast, in order to be elected at town meeting. 17 V.S.A. § 2660. If no candidate receives the majority in the first paper ballot, then another vote must be taken. If no person has obtained a majority by the end of the third vote, then the moderator shall announce that the person who received the least votes in the last vote shall no longer be a candidate, and continue voting in like fashion until a candidate receives a majority. Officers elected by Australian Ballot must receive the greatest number of votes – but not necessarily a majority. 17 V.S.A. § 2682(c).
16. Petition May Include More Than One Article. No law prohibits citizens from drawing up a petition that included a number of articles for a warning. When citizens sign the petition they are asking that all of the articles be placed on the warning. In such a case the town may reorder the articles, so long as it doesn’t change the petitioner’s intent. 17 V.S.A. §§ 2642, 2643.
17. Time For Paper Ballot Voting Can Be Limited. Unlike Australian Ballot voting, wherein the polls must be open from at least 10 am to 7 p.m., when an article is voted by paper ballot the polls must be kept open a "reasonable" amount of time, as determined by the moderator. 17 V.S.A. § 2661. The law required reasonable notice be given to the assembly prior to the close of the polls.
18. Selectboard May Acquire Land For Conservation or To Strengthen Local Business. Vermont law permits the legislative body to acquire property or accept land donated for a number of purposes, some of which are set out in 10 V.S.A. § 6301. These purposes include encouraging and assisting the maintenance of present uses of agricultural, forest and other undeveloped land, and to prevent the acceleration of residential and commercial development. It also includes preserving scenic natural resources; strengthening the base of the recreation industry and increasing employment, income, business, and investment; and planning for orderly growth.
19. Open Government Laws Apply to RDCs. A regional development corporation approved by the commissioner of commerce and community development is subject to Vermont’s open meeting and public record laws. 1 V.S.A. § 310 et seq. Vermont law does, however, provide a special exemption to allow regional development corporations to meet in executive session to consider proposed transactions or agreements in "furtherance of development purposes." 24 V.S.A. § 2786. This allows the corporations to meet privately with potential developers to discuss opportunities for establishing operations up until a contract or agreement is signed.
20. Board May Rule That Committee Executive Sessions May Exclude Non-Committee Members. When a board sets up committees the open meeting law will apply to the meetings of the committee. 1 V.S.A. § 312. Committees may go into executive session where appropriate. The law does not directly address whether a committee may exclude members of the board from its executive session. However, the board has the authority to establish its own rules or policies about who may attend committee executive sessions. It may be particularly important to have a clearly defined rule for large boards that have personnel committees that conduct employee evaluations. The law would permit a board to decide that only members of that particular committee may attend an executive session, or that any board member may attend.
21. Board Member Who Discloses Confidential Information Cannot Be Kept From Executive Session. The law governing executive sessions does not require board members to keep the discussions confidential – although this is certainly best practice. Consequently, there is no authority to keep any board member out of an executive session -- even if that board member breaches confidentiality. Note that where a board member has breached confidentiality – particularly in a personnel matter - it may be wise to ask the board’s attorney to send that board member a letter explaining the potential liability the municipality could face as the result of the breach.
22. NON VOTING Ex-Officio Members OF PLANNING COMMISSIONS Do Not Count Toward Quorum Requirement. The selectboard may serve as non-voting, ex-officio members of the planning commission. 24 V.S.A. § 4322. Although they can be part of the board, they do not vote. This means that their number will not count when factoring the numbers necessary to be present to form a quorum, and their presence will not count toward that quorum. Accordingly, in a board that has seven appointed (or elected) commissioners and five non-voting (selectboard) members, whenever there are four voting commissioners present there is a quorum. (For general guidance on how to treat ex-officio board members see, Roberts Rules of Order, § 48.)
23. Salaried Official Must Be Paid However He Or She Requests. Most towns vote to pay some of its officers an hourly rate, (with a maximum total) and others a salary. Salaried employees are entitled to the entire salary that has been voted in the budget. Note also that when an official is voted a salary at town meeting, there is no rule addressing how that individual is to be paid. In theory, a clerk, treasurer, constable or other elected official who is voted a salary could demand payment of the entire year's salary at the start of the new fiscal year. That is because a salary is not related to the hourly work of an official - and if it is voted by the electorate, the town is obligated to pay the full amount on demand.
24. The voters in a town can vote to exempt, in whole or in part, the taxes on certain property.
The vote to exempt property from taxation can take more than one form. The vote can affect only the municipal tax, only the education tax, or both the education and the municipal tax. If the vote includes an exemption from the education tax, in most instances a special tax rate (local agreement rate) must be established to raise the revenue foregone by that vote from the other property owners in town. The Listers Handbook published by Property Valuation and Review Division contains a chapter on these local agreements (pages 58-60).25. The Taxes Of A Mobile Home Destroyed By Fire Can Be Abated, Even With A New Owner. If a mobile home is destroyed by fire after April 1st, the taxes on that home may be abated under the law - no matter who now owns the home. 24 V.S.A. § 1533(5) allows the board to abate taxes of property destroyed during the tax year. It does not limit the abatement to the person who owned the property at the time of its destruction. The board can take into account the amount the new owner paid (if anything) for the property in question, when deciding whether an abatement is appropriate. Note that after the taxes are abated the mobile home can be moved with the clerk's signature. So long as there are still taxes due, however, the clerk should not sign the mobile home bill of sale.
26. Recorded Instrument May Not Be Corrected. Once an instrument is recorded in the town clerk’s office it cannot be corrected. Not by the clerk, nor by anyone else. If the clerk notices the error before the recording the clerk could have logged it into the town’s daybook without assigning a book and page number - then called to see if the lawyer wanted the document returned. If so, in the return column of the day book (or the book and page number column) the clerk should note that the instrument was returned to correct an error. In that way the town has a record of the transaction.
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
Sunday, December 1
Last day to pay property taxes in towns that voted to collect interest on overdue taxes.
32 V.S.A. § 5136(a)Friday, December 14
Last day for listers to add omitted inventory to tax roles.
32 V.S.A. § 4086Tuesday, December 25
Christmas Day
1 V.S.A. § 371Tuesday, December 25
(70 days before town meeting) First day to warn the first public hearing if a charter adoption, amendment or repeal is to be voted on at a town meeting.
17 V.S.A. § 2641(a), 2645(a)Sunday, December 30
Last day for listers to correct real or personal estate omission or obvious error in grand list, with approval of selectboard.
32 V.S.A. § 4261Monday, December 31
Town fiscal year ends, unless voted otherwise.
24 V.S.A. § 1683(c)
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