|VERMONT SECRETARY OF STATE - Jim Condos|
|State of Vermont
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Volume 3 Number 1
Message from the Secretary
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January is the time for reflection and resolution. It is a time to count our successes – and to consider opportunities for improvement. This past election cycle gives us that opportunity.
Message from the Secretary
Even though we have reason to feel good about our system of election administration, there are still opportunities for improvement. First, we need to provide more time between the primary and general election so that our ballots can be printed and delivered to towns on time, enabling our absentee ballots to be mailed overseas with enough time for their return by election day. We can do more to train our election workers so that every town treats machine-rejected ballots the same way. And finally, we can increase penalties and put in place a statewide voter file so that we can ensure against voter fraud. Right now there is no way to determine whether voters are voting in more than one jurisdiction.
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A Voice from the Past
THE BAG BALM OF DEMOCRACY
This month a new legislature convenes in Montpelier, and state officials take their oaths of office for another biennium. Soon we’ll have a new President and Vice-President, and a new Congress. Like a blanket of new snow, everything looks fresh, as the new year begins.
Underneath that blanket, of course, there are enough disagreements to melt the polar ice cap. Legislators and executive branch officials don’t start new terms as if they were clean slates. They remember the little cuts and bruises of former sessions, the fall campaign, and the long-standing differences between and within political parties. There will be no honeymoon for anybody this year. The struggle will begin immediately.
The wounds left by the fall campaign will not likely heal easily. As much as everybody will talk about mending fences, there will be sharp divisions of political ambition and philosophy in Montpelier and in Washington that will serve as barriers to effective decision-making. Hard feelings will get in the way of good government.
Local government is far from immune from these influences, every year, every season. Because they are local, the fires of town government burn with the heat of personality more than philosophy, and divide our towns into little camps. And what would town meeting be like without these little tensions? Rather dull, and not well attended because of it.
A little tension, a little strife, is good for progress. On the anvil of controversy, the iron is pounded and shaped, with heat and cold and a strong hammer. That process isn’t done silently or without some pain, but the product is better for it. Personality is not important; ideas are, and in time all good ideas make it into law, by intention, accident, or compromise.
Too much pounding, of course, just turns the idea back into a shapeless mass, which serves no useful purpose. That’s the big risk in Montpelier and Washington, that the hard election contests of the fall will keep the combatants from talking to each other as people, instead of as symbols or icons.
They could take a lesson from local government, where the tension never ceases, but the work still gets done. You can fight all you like, but this budget has to pass, this bridge repaired, this road plowed, so get over it, get on with it. Everybody understands the compromises that come with deadlines and timetables, with the end of patience and the limits of tolerance for dissent. There comes a time when you have to get along, because it’s simply disloyal not to, disloyal to the process, which has no time for endless debate and dickering.
Americans, Vermonters, townspeople: everybody wants to fight and argue, take exception and define a space, stay true to principle, take that jerk down a peg or two, and still do what’s best for the nation, the state, the town. By keeping personality and personal history out of it, by setting goals that are only positive and not designed just to embarrass or irritate our enemies, we’ll do so much better. We might even forget the chasms that divide us, and begin to act as one community.
Let that be our New Year’s Resolution this year.
"Voice from the Past" by Paul Gillies
Opinions Volume 3 Number 1 January 2001
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The Vermont Historical Records Advisory Board (VHRAB) is offering grants to provide on-site needs assessments for municipal records with a goal of helping you create an action plan for addressing your record needs.
A second grant program provides an archivist to work with staff and volunteers to arrange and describe a local collection of records. While this program is primarily designed for public libraries and local historical societies, VHRAB would entertain proposals to explore the indexing of municipal records.
VHRAB encourages collaborative proposals through which several towns could share an archivist not only to address their individual needs, but also to work together to identify common needs or best practice models.
For further information contact Gregory Sanford at the State Archives (firstname.lastname@example.org; 802 828-2369) or visit the VHRAB website at: http://vermont-archives.org/boards/vhrab/vhrab.htm
"Message from Archives"
Opinions Volume 3 Number 1 January 2001
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A board may meet and make its decision in deliberative session so long as it is acting as a quasi- judicial body, and the decision of the board is in writing. The decision should include findings (the facts that the board believes are compelling) and the conclusion. It should also name who has participated in making the decision, indicating those who may have dissented. A deliberative session is not an "executive session" from which the public is excluded, but where no decisions can be made; rather, it is a total exemption from the open meeting law. And, unlike the executive session, in deliberative sessions the board DOES take action and DOES make decisions.
- BOARD MAY MEET IN DELIBERATIVE SESSION SO LONG AS A FINAL DECISION IS WRITTEN.
BOARD MAY NOT CONDUCT MEETING WITH BACKS TO PUBLIC.In one town the selectboard sits around a small table for its meetings and the public are left to watch the backs of the board members as they conduct the business of the town. Understandably, this makes it difficult for the public to hear or participate in the meeting. The open meeting law requires all public bodies to conduct their business in a forum that allows the public to be present, hear what is going on and provide reasonable comment. 1 V.S.A. § 312. While there may be some situations where one or more board member has his or her back to the audience for part of a meeting, a board should not have as a general practice conducting its business with its back to the public. This violates the spirit, if not the letter of the open meeting law.
BUDGET COMMITTEE REQUIRES PUBLIC MEETING.The committee appointed by the selectboard to prepare a proposed budget for the board’s review is a public body subject to the open meeting law. This means that the committee must publicly announce its meetings, keep minutes and give the public who attend reasonable opportunity to be heard. 1 V.S.A. §§ 310, 312.
BUDGET COMMITTEE MAY ACT WITHOUT A QUORUM.A budget committee appointed by a board may act without a quorum unless the board or municipal charter provides otherwise. Vermont’s quorum rule requires that "when joint authority is given to three or more, the concurrence of a majority of such number shall be sufficient and shall be required in its exercise." 1 V.S.A. § 172. Because the budget committee provides only a recommendation to the selectboard, this quorum requirement will not apply.
TOWNS MAY VOTE A SPECIFIC BUDGET OR VOTE A TAX RATE.Vermont law gives the selectboard a choice when it formulates its budget for action at town meeting. 17 V.S.A. § 2664 provides that a town must “vote such sums of money as it deems necessary for the interest of its inhabitants and for the prosecution and defense of the common rights.” The law permits the board either to “express in its vote the specific amounts, or the rate on a dollar of the grand list, to be appropriated for laying out and repairing highways and for other necessary town expenses.” We recommend that towns vote the specific amount at town meeting rather than the rate on the dollar of the grand list, since the grand list will likely change between the date of the vote and the date the selectboard must set the tax rate.
VOTE REQUIRED TO SPEND UNEXPECTED REVENUES.The town’s voted budget gives the town officers authority to spend town funds. No other spending authority exists in law. This means that the school or selectboard cannot spend grants, gifts or interest on investments without specific voter approval. Many towns include an article in the annual warning that gives the board the authority to spend “unanticipated funds such as grants and gifts.
SELECTBOARD DRAFTS BUDGET TO PROPOSE TO VOTERS.One of the selectboard’s most important duties is to draft the budget of the town. This budget is included in the warning and is then voted at town meeting. In most towns the selectboard asks for input from the various departments. However, the ultimate decision about what to put before the voters for a vote is up to the selectboard.
FIRE DEPARTMENT MAY PETITION FOR ADDITIONAL FUNDS.In one town the municipal fire department was not satisfied with the selectboard’s budget. In their free time, (not during work hours,) the fire department brought a petition of 5% of the voters for an additional appropriation. (If the budget was voted on the floor they could have simply move to amend the budget.) Voter approval of the additional appropriation in effect, overrules the selectboard’s budget. Note that there is an argument that the selectboard would still have authority to withhold funds allocated to the department in the selectboard’s budget as the budget is authority to spend – not a requirement to spend. However, if the budget was amended on the floor, or if the budget line items are voted individually, the board would be bound to spend the money appropriated for the fire department.
HUNTING CLUB MAY NOT SEEK MUNICIPAL APPROPRIATION.Public money may not be used to support private groups, like a hunting club. Money may be appropriated for certain social service agencies listed in state law. These include, (but are not limited to) services for/involving transportation, day care, nutrition, senior citizens, etc. . . . 24 V.S.A. § 2691.
ONLY SOCIAL SERVICE AGENCIES THAT SERVE THE COMMUNITY MAY REQUEST SPECIAL APPROPRIATIONS FROM THE TOWN.The general rule is that a town may only spend taxpayer dollars for social service agencies that serve the community. According to 24 V.S.A. § 2691 a town or village may “appropriate such sums of money as it deems necessary for the support of social service programs and facilities within that town for its residents.” Note that, despite the statutory language, the Vermont Supreme Court has held that social service agencies physically located outside the municipality may be considered to be social programs within the village or town if the agency serves the residents of the municipality. Addison County Community Action Group v. City of Vergennes, 152 Vt. 161 (1989) (this case also extended § 2691 to cities.)
SOCIAL SERVICE AGENCY DOES NOT HAVE TO PETITION IF SELECTBOARD AGREES.An organization’s request for a town appropriation can be placed on the ballot in one of two ways. An agency can bring a petition, signed by 5% of the voters, to the selectboard by the 40th day before the date of the meeting. 17 V.S.A. § 2642(b). In the alternative, the selectboard may, on its own motion, include in the warning appropriations for non-profits that serve the town. Some selectboards have an established policy about when it will include an appropriation request on the warning without petition. A typical policy is to automatically place on the warning the previous year’s appropriations. In these towns, any non-profit that had not previously been given funds by the town, or an organization that wishes an increase in funding must still petition the town to get on the ballot.
AUDITORS MUST BE GIVEN ACCESS TO RECORDS.Town auditors must meet at least twenty-five days before each annual town meeting, examine and adjust the accounts of all town and town school district officers and all other persons authorized by law to draw orders on the town treasurer. 24 V.S.A. § 1681. However, many auditors begin their work in early January. The law provides that at any time in their discretion, town auditors may, and if requested by the selectboard, must, examine and adjust the accounts of any town officer authorized by law to receive money belonging to the town. Any town officer who willfully refuses or neglects to submit his or her books, accounts, vouchers or tax bills to the auditors or the public accountant upon request, will be ineligible to reelection and will be subject to possible fines or penalties. 24 V.S.A. § 1686.
AUDITORS MEETINGS MUST BE NOTICED AS PUBLIC MEETINGS.Meetings of town auditors must be announced to the public as a special meeting of the board in accordance with the requirements of the open meeting law. 1 V.S.A. § 312. Town auditors may perform merely clerical functions outside of an open meeting (i.e. checking accounts, reviewing books, etc. . .) but best practice is to notice a public meeting of the board whenever a quorum of the board meet to perform auditing functions.
TOWN MAY HIRE ACCOUNTANT IN LIEU OF ELECTED AUDITOR.Municipalities may vote to eliminate the office of auditor. In such a case the town must hire a public accountant to perform the duties of the town auditors. 24 V.S.A. § 1690.
SELECTBOARD MAY CHOOSE TO PLOW SOME CLASS FOUR ROADS.While the law requires a town to “keep its class 1, 2 and 3 highways and bridges in good and sufficient repair during all seasons of the year,” Class 4 highways may be “maintained to the extent required by the necessity of the town, the public good and the convenience of the inhabitants of the town.” 19 V.S.A. § 310. This gives the selectboard flexibility to plow some class four roads but not others. We recommend that selectboards adopt a policy that describes the situations in which it will plow a class four road. A clearly enunciated policy will enable the residents who live on these roads to know what to expect and to know they are being treated equally. (An example of a policy to plow would be if it is necessary to provide school bus service to children living on the road.)
SELECTBOARD NOT BOUND BY POLICY OF PREVIOUS.The selectboard may reconsider its road policy whenever it feels it is necessary. A board is not bound by a previous policy and may change it to reflect what the board believes is the best interest of the community. A person who lives on a class four road has no right to continued plowing even if the road has been plowed in the past.
TOWN SHOULD NOT PLOW PRIVATE ROADS.The recommendation that towns not get in the habit of plowing private roads comes from the rule found in our constitution that public resources may not be used for private benefit. While it is tempting to plow private roads as a courtesy for residents, it is important for towns to make a consistent policy so that all residents are treated equally (remember property on a private road is listed at a lower value that those on the public highway – so they are paying less property taxes because they are not receiving the benefit of road maintenance at town expense.) Also note that a town that maintains private roads over a period of time may be deemed to have acquired the road through “dedication and acceptance.”
RESIDENT MAY NOT PUT UP FENCE IN RIGHT OF WAY.In one town a resident was unhappy that the school bus used her road as a turn around so she constructed a fence in the highway right of way that would prevent the bus from turning around. 19 V.S.A. § 1111 makes it unlawful to construct a fence in the highway right of way. However, the fence may be placed on the landowner’s property – outside of the right of way – even if it prevents the tail end of the bus from making the turn around.
THE SELECTBOARD MAY CONSTRUCT SNOW FENCE TO PREVENT OBSTRUCTION OF HIGHWAY.When the selectboard determines that town road is liable to be obstructed by snowdrifts unless a snow fence is erected on land adjoining the highway, it may give the landowner notice and hold a hearing for the owner to discuss the matter, and then they can go on the private property to build and maintain the fence for the winter months. 19 V.S.A. § 927. Note that the selectboard may also require a landowner to remove a fence for the winter if it can be done easily, in order to prevent the town highway from being obstructed by snowdrifts as a result of the placement of the fence. 19 V.S.A. § 925. In both cases the board must follow statutory procedures found in 19 V.S.A. § 923 of this title for giving the landowner and others notice, inspecting property, determining need, awarding damages and satisfying appeals.
SNOWMOBILES MAY ONLY CROSS PLOWED ROADS IN UNOBSTRUCTED LOCATIONS.Vermont’s motor vehicle law provides that a snowmobile may not be operated across or on a plowed public highway unless “the crossing is made at an angle of approximately 90 degrees to the direction of the highway and at a place where no obstruction prevents a quick and safe crossing; and the operator brings the snowmobile to a complete stop before entering the traveled portion of the highway; and the operator yields the right of way to motor vehicles and pedestrians using the highway.” Note that in order to cross a public road the snowmobile operator must be 16 years of age or older. Or if over the age of 12, but under the age of 16, the operator must be under the direct supervision of a person 18 years of age or older. 23 V.S.A. § 3206.
SNOWMOBILES MAY USE UNPLOWED PUBLIC HIGHWAYS.23 V.S.A. § 3206 provides that a snowmobile may run on unplowed highways if the town road has been opened to snowmobile travel by the selectboard, and the road is so posted by the town. Snowmobiles may also use the unplowed portion of the highway right of way so long as the operator is not closer than five feet from the plowed portion. The selectboard should adopt a clear winter use policy so that all landowners and snowmobile users know what roads may be used in the winter.
TOWN MAY PERMIT LANDOWNER TO PENT A ROAD.One landowner was unhappy because snowmobilers used the class four road in front of his house at all hours of the day and night, despite the fact that it was a privately maintained class four road that the board had not opened to snowmobiles. 23 V.S.A. § 3206. The board may grant the landowner written permission to put up an unlocked gate across the road to deter recreational use of the road. 19 V.S.A. § 301. (Pent roads were originally created to keep in farm animals where a landowner owned both sides of the road and let the animals graze freely.)
COUPLE CANNOT KEEP MARRIAGE OUT OF THE PUBLIC RECORD.In one town a couple wished to get married but asked the clerk not to include their names in the public record as they did not want family members to know of their marriage. State law makes the marriage records public records. However, the clerk might agree to keep their names out of the town report. 18 V.S.A. §§ 5012, 5013. (Note that if both members of the couple live in the same town that will be the only town in which they can register their marriage. However, nothing would stop the couple from leaving the state to elope.)
LIBRARY MAY KEEP CUSTODY OF VIDEOS OF BOARD MEETINGS.No law would prevent the local library from collecting videos of board meetings and then checking them out to interested residents. So long as the legal record of the meetings – the minutes – were kept by the clerk and made available to the public on request, there is no reason that videotapes of the meeting could not be kept elsewhere.
LISTERS MAY MOVE OFFICE TO A PRIVATE RESIDENCE.There is no state law that would prevent the listers from moving the listers’ office to a private residence. However, as custodians of the records they must make the lister cards and records available for public inspection at all reasonable times. If copies of the property files were kept at the Town Clerk's office this requirement would be satisfied. In addition, meetings of the board must be open to the public – even if the meetings are held in a private residence. 1 V.S.A. §§ 316, 312.
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 of Opinions
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January Opinions "Table of Contents"
Secretary of State's
Opinions Volume 3 Number 1 January 2001
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KIDS VOTING VERMONT PHOTO GALLERY
JANUARY CALENDARMONDAY 1
New Years Day 1 V.S.A. § 371.
(First Wednesday after the first Monday of January) Legislature reconvenes. Vt. Constitution Ch. 2, § 7.
(60 days before Town Meeting) Last day to warn the first public hearing if a charter adoption, amendment or repeal is to be voted at Town Meeting 17 V.S.A. § 2641(a), 2645(a)(6).
Martin Luther King, Jr.’s Birthday 1 V.S.A. § 371.
State Withholding Tax Return is due (actual date by which return must be postmarked is shown on printed return) if reporting less than $600.00 per quarter; more than $600.00 requires a monthly report 32 V.S.A. § 5842.
(Not less than 40 days before Town Meeting) Last day to file petitions signed by at least five percent of voters with Town Clerk for articles to be included in Town Meeting warnings 17 V.S.A. § 2642(a).
(40 days before Town Meeting) The legislative body has its first opportunity to warn the meeting, post the warning and notice in two public places and in or near the Town Clerk’s office 17 V.S.A. § 2641(a), 17 V.S.A. § 2642.
Last day for Board of Civil Authority to designated polling places and, if necessary, divide the checklist according to geographic boundaries. 17 V.S.A. § 2501.
(10 days before first public hearing) Official copy of proposed charter amendments must be filed in Town Clerk’s office if vote is to be taken on Town Meeting Day. 17 V.S.A. § 2654(a)(2).
(Sixth Monday before election) 5:00 p.m. deadline for filing with the Town Clerk nominating petitions for town offices to be filled by Australian Ballot. 17 V.S.A. § 2681(a).
(36 days prior to election) Last day for nominee of more than one political party for the same office to notify the Town Clerk of the party or parties in which he or she will be a candidate 17 V.S.A. § 2474(a).
Last day for Town Clerk in municipality with fiscal year ending December 31 to publicly disclose fees kept as compensation for that fiscal year. 24 V.S.A. § 1179
Last day for Auditors to post 10 days’ notice of their meeting to examine town accounts 24 V.S.A. § 1681.
(Within 24 hours from receipt) Town Clerk must return nominating petitions found not to conform, stating in writing the reasons why they cannot be accepted 17 V.S.A. § 2681(e).
(Wednesday after filing deadline) 5:00 p.m. deadline for candidates to file written consent for the candidate’s name to be on the ballot 17 V.S.A. § 2681(a).
(Wednesday after filing deadline) 5:00 p.m. deadline for a person to withdraw after he or she has consented to be nominated 17 V.S.A. § 2681(d).
(Wednesday after filing deadline) 5:00 p.m. deadline for candidates to file supplementary petitions if initial petition was not accepted 17 V.S.A. § 2681(e)
Last day to mail W-2 withholding forms to employees.
Last day to file form 941 (quarterly withholding return) with the IRS.
Looking Ahead to FebruaryTHURSDAY 1
Deadline for Tax Collector to turn over moneys collected and settle account with treasurer 24 V.S.A. § 1532.
Last day to hold first public hearing on charter amendments if article is to be voted at Town Meeting 32 V.S.A. § 4112.
Last to hold first public hearing on charter amendments if article is to be voted at Town Meeting 17 V.S.A. § 2645(a)(3).
(Not less than 30 days before Town Meeting) Last day for municipality to post warning and notice of Town Meeting. 17 V.S.A. § § 2641(a), 2642.
The most recent checklist of the town should also be posted at this time, whenever the warning and notice is posted. In towns that divide their checklist, that portion of the checklist that applies to the district should be posted 17 V.S.A. § § 2141, 2501.
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