State of Vermont Office of the Secretary of State

BOARD MAY MEET IN DELIBERATIVE SESSION SO LONG AS A FINAL DECISION IS WRITTEN. 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 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.