|VERMONT SECRETARY OF STATE - Jim Condos|
|State of Vermont
Office of the
Secretary of State
Volume 3 Number 7
The Fourth of July is one of my favorite holidays. Our family picnic, the parades, and of course, the fireworks make the day special. It is also a time when many of our towns hold community events. After all, summer is short and celebrating our independence makes a great excuse for getting together with family and friends, showing off new plantings in the green, a freshly painted town hall or for listening to our children (or parents) playing in the community band.
It takes a lot of work to put together a local celebration. Volunteers are needed for planning, for set up and, of course, for clean up. But it is worth it. It is these community events that make our towns rich places to live.
Local celebrations provide the glue that binds our communities. Like town meeting, our festivals and concerts, our town wide tag sales and parades give us a sense of pride in our communities. They help us get to know our neighbors and let us feel connected to our history. It is no wonder that research shows that communities with the highest town meeting turnout are the ones that also offer a meal and time to socialize. The chance to visit with our neighbors stimulates our civic life.
So, as you are helping to clean up from your Fourth of July picnic, or as you are planning for Bennington Battle Day or for some other community event, know that this work is just as important as planning the budget for the town – or writing the town plan. Without our community celebrations it is hard to keep our citizens engaged in the civic life of our towns. And without active citizens our towns cannot thrive
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A Voice from the Past
"Voice from the
Past" by Paul Gillies
Opinions Volume 3 Number 7 July 2001
LINES AND POINTS ON A MAPAt the recent official opening of the new Caledonia County Courthouse, the subject of choosing a shire town came up. In 1856, the General Assembly had relocated the county seat, to the great chagrin and disappointment of those living in Danville and the consequent delight of those in St. Johnsbury.
There have been others. Early on, Newfane replaced Westminster as the site of the Windham County Court. Tinmouth was replaced by Rutland as that county’s shire town, and Newbury lost to Chelsea in Orange County.
All of these changes occurred so long ago, you’d think the hard feelings of those who were present when the courthouses closed down would have dissipated by now, but they haven’t. Raise the issue in any of the losing towns, and you’ll still hear a tinge of bitterness about the decision.
It did matter a whole lot to these towns in the nineteenth century. Being a shire town meant economic opportunities beyond what geography and highway systems would otherwise justify. It meant boarding houses, restaurants and attention from the legislature for the improvement of facilities for the court, sheriff and those who traveled to the court on business.
Most of all, it gave a town a special identity—that this, above all the other towns in the county, was the one selected to serve as a center of county activity. There may be other reasons why Tinmouth remains small and rural today, while Rutland has flourished, but we can only imagine how different things would have been had the court stayed in Tinmouth.
Danville, of course, has reason to feel particularly sore, as it had expectations that someday it would become the state capital, but then so did Randolph, Burlington and others. That Montpelier won out in that struggle more than once (it was fought in 1807 and then again as each of the State Houses was replaced or burned).
When the question was raised, whether a town would become a shire town or the capital, the people of those communities would engage in a bidding war. The question was, what will the town do to qualify? In nearly every instance, that meant money, raised through public subscription, to build a court house or in Montpelier’s case a State House, as an incentive to the legislature and a way of showing how serious the towns really were in the pursuit of these designations.
Today, as towns routinely demand to know what the state is going to do for them when a new facility is to be constructed (or alternatively demand money in lieu of taxes for state buildings or other facilities already located in town), a little history goes a long way in demonstrating how times have changed.
If you looked at the topographical map of Vermont, without any political subdivisions, and had no knowledge of history, you would be hard pressed to justify the way towns, counties or even the boundaries of the state have been laid. But for the entrepreneurial zeal of a New Hampshire Governor 240 years ago and the high spirits of a group of early settlers, there might not have been a Vermont at all. Six miles square, the size of the average Vermont town, is just an arbitrary figure, marked by arbitrary boundaries usually drawn in complete ignorance of mountain ranges and valley floors.
And if town lines are drawn arbitrarily, look at county lines. No wonder it is so hard to bring communities together in regional cooperation, when the associations of towns that make up the counties often have so little in common with each other, beyond sharing a boundary with another town in the county.
Borders matter. Just ask anyone who lives on or near a town or county line whether it matters where the line falls. Just ask any town whose boundaries are questioned by a new survey or a neighboring town. Ask any landowner. What is ours should stay ours, and we are prepared to fight to protect it.
That’s what makes a decision to change a shire town so painful to those left behind. Now we say, you know this used to be the shire town for this county. Even then, eyes light up and sounds of approval are made, as if to say, this once was the center, this once was the chosen place. No wonder the pain of loss remains, long after the official functions have moved.
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Opinions Volume 3 Number 7 July 2001
1. Minutes Must Be Available Within Five Days.The Vermont Public Records Law provides that minutes of ALL meetings of public bodies, including committees and subcommittees, shall be available for inspection and/or for purchase of copies upon request after five days from the date of any meeting. 1 V.S.A. § 312. Some boards mistakenly believe that the time begins to run only after the minutes have been approved at the next meeting of the board. This is not the case. Draft minutes must be made available five days after the meeting. (The person drafting the minutes can boldly stamp them "DRAFT" on each page.) Note also that the requirement is five calendar days after the meeting – not week days.
2. E-mail correspondence is considered a public record. Vermont’s public record law is clear that all records or documents created in the course of agency business is a public record – whether that record is "machine readable" (ex. e-mail) or paper. 1 V.S.A. § 317(b). This means that e-mail correspondence initiated by, or received by, town officials or town employees during the performance of their official duties will be subject to the public records law. If no exemption to the public records law applies, the e-mail will be subject to public disclosure even if none of the recipients is a town officer, and even when the e-mail is between town officials but is not received at a town office.
3. Serial Deliberations Are Not Prohibited – But Not In the Spirit Of the Open Meeting Law. Members of the public complain that in one town it seems as though everything important is decided outside the public meeting. The chair admits that before the meeting he speaks separately to each member of the five-member board and reviews the agenda and discusses how the board will vote. He maintains that it makes for very efficient meetings. Although the law permits members of the board to discuss town business – so long as they are less than a quorum of the board – the purpose of the open meeting law is to permit the public to observe and participate in the discussion of public business. If this scheme was used purposely to avoid public debate on a particular issue it is likely that our courts would not look kindly on the practice. However, there is nothing currently in the law that specifically addresses the issue.
4. Resignation Does Not Have To Be In Writing. There is no legal requirement in Vermont that a resignation be in writing. It is sufficient that the official communicate his or her resignation to the selectboard. It is, however, good practice to have a written resignation that can be filed with the town clerk along with oaths of office and records of appointments. If the resigning official does not submit a written resignation, the selectboard minutes which reflect receipt of the oral resignation should be included in the town’s file as a record of the resignation.
5. Resignation Is Effective Upon Receipt. In one town a person proffered his resignation to the selectboard who did not take a formal action to "accept" the resignation. The next day the official called the board chair and asked to revoke the resignation. Although the courts have not directly addressed this issue in Vermont, it is our belief that the Vermont courts would hold that the resignation is effective upon receipt – with no official action of the board necessary to make it effective. We base this decision on the fact that in Vermont the board does not have authority to reject the resignation. By receiving the resignation the board is performing a ministerial function. Of course, the board could choose to reappoint the official to his or her former position.
6. A road foreman and a road commissioner can be the same person. Unless a town has voted to elect its road commissioner, the road commissioner is appointed by the selectboard. There is no reason that the road foreman who is hired to oversee most of the work on town highways cannot also serve the town as the road commissioner. This is because in most towns the road commissioner’s principal duty is keep the selectboard up to date on the state of the town roads. Note that the road commissioner no longer has any independent authority - whether he or she is elected or appointed. 19 V.S.A. § 304 (16) provides that "road commissioners, elected or appointed, shall have only the powers and authority regarding highways granted to them by the selectmen." This means that in some towns the road commissioner has no duties at all. In most towns one of the selectboard members serves as road commissioner.
7. Town Official With Separately Voted Budget Can Direct Payment. If a town votes a separate article for a budget for the town constable without specifying or directing exactly what the budget is to be used for, the constable can request payments as he chooses. If the town electorate want to control the uses of the budget, it should include specific provisions in the article such as: $10 per hour up to $10,000 for wages, $5,000 for health insurance, $4,000 for mileage reimbursement and expenses, etc.) The constable’s budget could also be included in the general town budget submitted by the Selectboard to insure more oversight of the funds.
8. No Conflict of Interest Serving on Selectboard and Downtown Improvement Committee.In one town the selectboard was asked to support a request for a state grant to assist the work of the "Downtown Improvement Committee." One of the board members was also on the board of the committee seeking the grant. The question is whether this dual interest should prevent him from participating in the decision making vote by the selectboard to decide whether the town will apply for the grant. We do not think there is a conflict of interest here. It is only when the specific interest of the selectperson is different from the interests of the public at large that a selectboard member needs to consider withdrawing from the vote. For example, if the selectperson would personally profit financially from the grant, or his business would profit from the grant in a special way, then the board member should withdraw from the decision making.
9. Selectboard and Treasurer Decide How To Invest Town Funds. 24 V.S.A. § 1571 (b) provides the general rule for investing money received by the town. It provides no specific limit on the investment of those funds so long as the treasure and selectboard make a decision together on the investment. The law says "Moneys received by the town treasurer on behalf of the town may be invested and reinvested by the treasurer with the approval of the legislative body." In contrast, trustees of public funds are limited in how they can invest town money - as are cemetery trustees. 24 V.S.A. §§ 2431, 2432; 18 V.S.A. § 5384.
10. Water and Sewer Delinquencies are Treated Like Delinquent Taxes. The charges, rates and rents for municipal water or sewer services are a lien on the real estate that may be collected in the same way that delinquent taxes are collected. 24 V.S.A. §§ 3306, 3504. This means that the 8% penalty will apply as well as interest if the town has voted to collect interest on its overdue taxes.
11. Revenue from Water and Sewer Services Cannot Be Used To Subsidize Other Government Services. Vermont law is clear that revenue from municipal water and sewer services can be used only to pay for those services – and not to offset losses in other areas of the municipal budget. 24 V.S.A. § 3313 and 3507 provides that the receipts derived by the municipal corporation from its waterworks or sewage system may only be used and applied to pay the principal and interest upon its bonds, the expense of repairs and management of the department, and payment into a dedicated fund to anticipate future capital needs and costs.
12. Failure of Selectboard To Hold Public Hearing on Town Plan Within 120 Days Will Not Invalidate Plan. Vermont law provides that the selectboard must hold the first of one or more public hearings on a proposed town plan or amendment to a town plan "not less than thirty nor more than 120 days after a proposed plan or amendment is submitted to the legislative body." Although the law is written as a requirement, the legislature recognized that sometimes selectboards can inadvertently let deadlines get away from them. For that reason the law specifically states that that "failure to hold a hearing within the 120 days shall not invalidate the adoption of the plan or amendment." 24 V.S.A. § 4385.
13. Larger Communities Must Hold at Least Two Public Hearings on Town Plan. In one town after very few people turnout out for a hearing on a town plan amendment the selectboard wondered whether they needed to hold a second hearing. Vermont law is clear. Municipalities with a population of more than 2500 must hold two or more such hearings. 24 V.S.A. § 4385.
14. Warn New Public Hearing If Changes To Town Plan After Public Hearing. Although the planning commission drafts the town plan, the selectboard may make changes to it. The law provides that the legislative body may not change the plan within 15 days of the final public hearing. This means that if the board makes any changes to the plan in response to comments made at the public hearing, it must warn a new public hearing before voting on the plan. 24 V.S.A. § 4385. Changes that the board makes prior to 15 days before a public hearing will only require an additional hearing if they substantially change the concept, meaning or extent of the plan or amendment.
15. Selectboard Adopts Town Plan or Amendments Unless Town Elects to Have Public Vote. Ordinarily town plans and amendments are adopted by a majority of the members of its legislative body at a meeting that is held after the final public hearing. If, however, at a regular or special meeting of the voters the municipality elects to adopt or amend municipal plans by Australian ballot, that procedure shall then apply unless rescinded by the voters at a regular or special meeting similarly warned and held. Plans and amendments shall be effective upon adoption. Note also that if the proposed plan or amendment is not adopted so as to take effect within one year of the date of the final hearing of the planning commission, it shall be considered rejected by the municipality.
16. Union School Districts Must Use Proportional Representation. This session the Vermont Legislature made it clear that all of Vermont’s union school districts must apportion membership on their school boards in such a manner as to comply with the guarantees of the Equal Protection Clause by ensuring that there is one person one vote. The new law requires the department of education, by August 1 st of this year, to send to each union school board chair and the superintendent of schools for supervisory unions containing one or more union school districts information on the requirements of proportional representation and model methods for the board to adopt to realize this goal. Each board must report back to the commissioner of education by December 1, 2001 as to whether and why it believes the board meets the requirements of the Equal Protection Clause, and to supply supporting documentation.
17. Selectboard Must Appoint BCA Members If Requested for Political Balance. If the board of civil authority does not have as members at least three members of each major political party, the party committee or at least three voters may request increased representation for the underrepresented major political party by filing a written request with the clerk of the municipality. The legislative body must then appoint additional members from a list of names submitted by the underrepresented party to bring the underrepresented major party's membership on the board to three.
18. Appointed BCA Members May Participate in Apportionment Decision. Appointed board members have the same duties and authority with respect to elections as have other members of the board; they shall have no authority with respect to functions of the board of civil authority which are not related to elections. BCA participation in reviewing en establishing legislative districts is an important election function that only occurs every 10 years. (17 V.S.A. § 2143 and §§ 1891-1909)
19. Reserve Fund May Be Controlled By Legislative Body. If a town or school district has established a reserve fund for a special purpose, such as a reserve fund for highway equipment, the statute provides that the reserve fund is to be under the control and direction of the legislative body (Selectboard or School Board). 17 V.S.A. §2804. Once a reserve fund is established and funded by town vote, the Board may expend the funds for such purposes for which the fund was established without another town or district vote. If the legislative body wants to spend those reserve funds for any other purpose, then the spending must be authorized by a majority of voters at an annual or special meeting.
20. Elected Officials Do Not Qualify For Workers Compensation or Unemployment Compensation. Elected public officials such as selectboard members or listers are specifically excluded from the definition of "employee" in Vermont Worker’s Compensation and Unemployment Compensation statutes. We have confirmed with the Commissioner of Labor and Industry that ALL officials who are serving in positions that are "elected" when originally filled, are excluded from coverage, even if a particular selectboard member or other official has been appointed by the Selectboard to fill an unexpired term. It is the category or type of position created by the statute that determines the exclusion. Therefore Town Treasurer’s do not need to include any officials serving in offices that are normally elected by the voters for purposes of Worker’s Compensation or Unemployment Compensation.
21. Only Village Justices Can Serve on the Village BCA. The Board of Civil Authority of a village consists of the Justices of the town who reside in the village, the trustees of the village, and the village clerk. Other Justices of the Peace who reside in the town but not in the village cannot be involved in administering village elections. 17 V.S.A. § 2103(5).
22. Village Voter Checklist is Derived From the Town List. A village clerk shall automatically include all voters living within the village who are on the Town checklist. 17 V.S.A. § 2126. There is no need for the voter to apply separately to the village clerk.
23. Town-Wide Reappraisal May Result In A Request For An Extension Of Time To Complete And Lodge The Grand List. After a town wide reappraisal listers can expect many grievances and tax appeals. As a result, an extension of time to complete the grand list may be necessary. A request for an extension must be made in writing, signed by the listers and approved by the selectboard or mayor. The request for extension is sent to the Director of Property Valuation and Review. 32 V.S.A. § 4342. If an extension is granted by the Director, it must be recorded in the town clerk’s office. The clerk should post a notice in the town office listing the various deadlines for the appeal process and letting all residents, especially appellants, know that the extension has been granted.
24. Most Decisions To Adopt/Amend/Repeal An Ordinance ARE Left To Selectboard. Except with Ethics and Land Use ordinances, there is no way for citizens to force a selectboard to adopt, amend or repeal an ordinance. However, upon petition by 5% of the voters within 44 days of adoption of an ordinance, petitioners can force a town vote to disapprove a proposed ordinance. 24 V.S.A. § 1973(d). If the voters disapprove the ordinance, the ordinance ends. If the voters fail to disapprove, then the ordinance takes effect.
25. Board of Civil Authority Must Take Oath Before Hearing Tax Appeals. The required oath for members of the board of civil authority who will be hearing tax appeals is found in 32 V.S.A. § 4405. The statute requires that the members take the oath before entering upon their duties under section 4404. Since the tax appeal process is available each year, board members should take the oath each year before beginning the first tax appeal hearing.
26. It is Time For the Biennial Purge of the Voter Checklist! We recommend that the Board of Civil Authority meet at regular intervals to maintain your checklist, including sending the required notices to remove or purge names. For BCA’s that have not been able to do this on a regular basis, it is now time to warn a meeting of the Board of Civil Authority to update your checklist. The statute requires that by September 20 of each odd-numbered year, you must send a letter certifying that your checklist has been updated and that detailed records have been maintained to the Office of the Secretary of State. 17 V.S.A. § 2150(d)(7).
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Opinions Volume 3 Number 7 July 2001
Please note that as of July 1 the new Article 9 for UCC will take
effect. With this new law comes a couple of major changes.
1. The form has changed
2. On-line filing is a reality.
3. Signatures are no longer required
For more detailed information please visit our UCC Center on the Internet.Http://www.sec.state.vt.us/corps/corpindex.htm -- or call us at 802-828-2386.
Opinions Volume 3 Number 7 July 2001
Sunday, July 1
Last day for Town Clerk to submit name of Town Treasurer to State Treasurer.
24 V.S.A. § 1164
Wednesday, July 4 Independence Day
1 V.S.A. § 371
Sunday, July 15
Last day for school, fire district and Village Clerks to deliver to Town Clerk statement of taxes assessed during year ending June 30th.
32 V.S.A. § 3461
Sunday, July 15
Last day for Town Clerk and Appraiser to unorganiszed towns and gores to file statement of taxes assessed with the Director of Property Valuation and Review.
32 V.S.A. § 3462
Wednesday, July 25
State withholding tax return is due (actual date by which return must be postmarked is shown on the printed form) if reporting less than $2500 per quarter; more than $2500 requires monthly report.
32 V.S.A. § 5842
Monday, July 30
Last day for Town Clerk in municipality with fiscal year ending June 30 to publicly disclose fees kept as compensation for that fiscal year.
24 V.S.A. § 1179
Tuesday, July 31
Last day to file Form 941 (Quarterly Withholding Return) with Internal Revenue Service.
Looking ahead to August…
Last day to transmit abstract and a photocopy of the grand list to the Directory of Property Valuation and Review. 32 V.S.A. § 4185
Bennington Battle Day. 1 V.S.A. § 371
For further information,
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