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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 3 |
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Redstone Building |
Every March local government takes center stage. Even with all of the drama going on in the state house, it is local government and local issues that are in the spotlight. You can look at any newspaper in the state and you will see articles about local ballot issues, candidates, and absence of candidates, budgets, bonds, and meetings. Meetings gone wrong - and meetings that are right out of a Norman Rockwell painting.
March Meeting is only one piece of Vermont's tradition of participatory democracy. In fact, the backbone of that democratic tradition is the many individuals who do the work of local government. After March
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meeting, when things begin to settle down and town government falls from the front pages of our papers, the real hard work of local government begins. This is the time we reorganize. We set meeting days, elect chairs, adopt rules of order, and to begin to feel out the new personalities on the boards. It is a time when the absence of old friends is felt the strongest - and when new officials must be given an opportunity to learn what their new jobs require.
I want to give a special welcome to those of you who are newly elected this month. As you begin to learn the requirements of your new positions and have questions about the laws that govern the work you do, please feel free to call us for assistance. We will answer your questions and direct you to other resources that might be helpful to you and your towns. Here at the Secretary of State's Office we have assembled a great team to work with the municipalities in Vermont. We have three attorneys available to answer your questions - Deputy Secretary of State, Bill Dalton, Director of Elections and Campaign Finance, Kathy DeWolfe and myself. Call us at 1-800-439-8683! Check out our web site or call to order our publications on topics including open meeting law, tax appeals, land use regulation and more – www.sec.state.vt.us! reprinted from March 2000.
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A town moderator may only serve one day a year, but during that day works harder than many other town officers do all year. No office requires so much of a person’s attention, understanding, charity, discipline, intelligence, and wisdom in such concentrations. It’s no wonder many moderators go to bed early when they come home from the annual meeting. If they had to work that hard every day, they’d wear out in a couple of weeks.
What’s so hard about moderating a town meeting? It looks so easy from the audience. You just bang the gavel, and everybody behaves.
Look again, this time from the other side of the podium. You look out over a sea of faces, all appearing anxious, all seeming ready to pounce if you make the slightest misstep. All you’ve learned from Robert’s Rules seems to dissipate as soon as the meeting begins, and you need all your resources to balance the needs of the voters against the procedural requirements of state law and the rules.
Of course you need rules. If you could make up the process as you went along, you would quickly wade into deep waters. There would be no foundation on which to base a ruling, and soon the mask of the moderator would fall away and people would see you as just another citizen, with your own biases and interests.
The confidence that follows a ruling does not depend on how close the call is to the rules. It depends on the character and integrity of the person making the call. Moderators must have the capacity to explain complicated rules in a way that everyone can understand, in a way that inspires trust in the ruling.
It’s so strange to stand in a position of leadership without actually leading, without a voice or a position on the issues that divide the meeting. A good moderator is all process and no substance. You are only there to show the way, not to decide the direction.
It’s almost as if you aren’t there. You are a function, not a personality. Oh sure, it helps to wear red suspenders and be able to say wise and funny things at appropriate moments, but when you take away the outfit and the humor what you are is a symbol of everything that’s decent and fair about town meeting. You become a kind of universal arbiter of human relations.
There’s a reason they don’t call you by your first name. There’s a reason you don’t enter into dialogues with good friends in the audience. This is public business, and what counts is getting the agenda done properly. Sometimes that means standing up to the assembly and keeping the folks from doing what they want to do. This takes real courage. It takes great diplomacy, and special talents to instruct without sounding punitive.
Some moderators say they don’t want to know what people think or intend by the articles that appear on the warning or the discussions that follow, that they work best just concentrating on the procedural aspect of the job. But knowing as much as you can about articles in advance and being able to understand what people want to do, when it is different from what they say, is vital information for a moderator. A good moderator is worth a fortune (try a bad one and see what it costs). Luckily for us, it’s usually a voluntary position. Cherish your moderator. Give this dedicated official all the support you can muster. Town meeting, the town’s spirit, and its future, depends on how well the person behind the podium does the work.
"A Voice from the Past" by Paul Gillies
Opinions Volume 3 Number 3 March 2001
top of this section March Opinions "Table of Contents" SOS HOME
Opinions of Opinions
- TOWN GETS 120 DAYS TO REMIT TAXES TO SCHOOL DISTRICT, EVEN IF NOT YET COLLECTED BY THE TOWN.
16 V.S.A. § 426 (b) provides that “within one hundred and twenty days after the date on which taxes become delinquent, but in no event later than the end of the school year, the treasurer shall deposit the balance of the sum of the gross school tax levy in the school account.” This means that even if taxpayers are delinquent, the school portion of those taxes must be remitted by the town to the school district. The town is responsible for collecting the delinquencies, and when it does so can keep the entire proceeds.
- TOWN TREASURER MUST PAY TAXES TO SCHOOL AS THEY COME DUE.
One treasurer deposited the tax payments into the town account and left them there to accumulate interest for the town. The school district objected. According to 16 V.S.A. § 426, unless the school board and selectboard agree (in writing) otherwise, the treasurer must deposit the school taxes within 20 days after the date they become due and payable.
- SCHOOL MAY NOT DEMAND ADVANCE PAYMENT OF TAXES.
In one town the school district was having cash flow problems and asked the treasurer to front the district money to cover their expenses until the next tax due date. While it is permissible for the selectboard to agree to make an advanced payment to the school, the board is not required to advance the school district money. The school may always borrow money in anticipation of the taxes from a conventional lender. 16 V.S.A. § 563.
- UNION SCHOOL MUST USE PAPER BALLOT TO DISPENSE WITH AUSTRALIAN BALLOT.
Union school district law states that "the vote whether to use the Australian ballot and whether to commingle the ballots shall be taken by written ballot." 16 V.S.A. § 711e(b). Generally, when the adoption of an article is prescribed to take place in a certain fashion, the reconsideration or rescission of the article is voted in the same manner. Accordingly, a vote to discontinue the use of Australian ballot would be by "written" or paper ballot. Note, however, that if the union high school district voted to adopt all public questions by Australian ballot in a previous vote, the vote on whether to discontinue the Australian ballot would be taken by Australian ballot, since it is a public question. 17 V.S.A. § 2680(d). (If the school district voted to adopt only the budget by Australian ballot, then the vote to discontinue must come at a traditional floor-type meeting.)
- AUSTRALIAN BUDGET VOTE BALLOTS FOR UNION SCHOOL MAY BE COUNTED BY TOWN OR BY COMMINGLING BALLOTS.
The board of civil authority of each town within a union district is responsible for determining the eligibility of persons to vote, the supervision of the election and the transportation of ballots in its district to a central point designated by the board of school directors. 16 V.S.A. § 711e(a) through (e).
- AUSTRALIAN BALLOT IS NOT A PAPER BALLOT.
People often confuse the terms "paper" and "Australian ballot." The two are different. A paper ballot is a written ballot vote used at a traditional school district or town meeting. An Australian ballot vote refers to the practice of voting at designated polling places during designated polling hours (usually, 7 a.m.-7 p.m.) with printed ballots that are available twenty days prior to the school district or town meeting for absentee voting.
- SCHOOL AND TOWN MUST ELECT OWN MODERATORS.
There are separate offices for Town and Town School District Moderators. The town school district must elect a moderator as the first order of business or by Australian ballot, if the district has voted to elect all officers by Australian ballot. Although the same person may serve as both Town Meeting Moderator and School District Moderator, separate candidacies, and in Australian ballot districts, separate petitions are required. 16 V.S.A. § 491, 17 V.S.A. § 2646(1).
- TOWN OFFICERS TAKE OFFICE AT TOWN MEETING.
Newly elected town officers take office on town meeting day. Some officials must take an oath before they officially take office. This can be done by the clerk at town meeting, or at any time thereafter. 17 V.S.A. § 2646. An official who is required to take an oath of office (by either swearing or affirming) and who refuses to do so may not take office, thereby creating a vacancy. (See March Opinions for list of officials requiring oath.)
- UNION SCHOOL OFFICERS (CLERK, TREASURE, AUDITORS, ETC.) TAKE OFFICE ON JULY 1st EXCEPT FOR MODERATOR.
According to law, “union district officers elected at an annual meeting shall enter upon their duties on July 1 following their election and shall serve a term of one year or until their successors are elected and qualified, except that if the voters at an annual meeting so vote, moderators elected at an annual meeting shall assume office upon election and shall serve for a term of one year or until their successors are elected and qualified.” The law also provides that school directors elected at an annual meeting shall assume office upon election and shall serve a term of three years or until their successors are elected and qualified. 16 V.S.A. § 706k.
- TOWN MUST VOTE TO CHANGE FROM AUSTRALIAN BALLOT.
To change to Australian ballot for officers, budgets, or public questions, an article must be placed on the warning as directed in 17 V.S.A. §2680. The board can choose to place an article on the warning – or, at least forty days before the annual meeting, citizens can submit a petition with signatures of 5% of the checklist to request the article. 17 V.S.A. § 2642. If the article to change to Australian ballot passes, the town or district will begin using the Australian ballot at its next special or annual meeting and continue to use Australian ballot until the town or district votes to discontinue its use.
- VACATIONING SELECTBOARD MUST MAKE ARRANGEMENTS TO SIGN ORDERS.
In one town all of the selectboard members will be on vacation at the same time. In order to ensure the work of the town can continue in their absence the board should sign orders to permit the treasurer to keep up with the payroll. A quorum of the board should also make arrangements to be available in case an emergency arises that would require board action. In this case a special meeting could be noticed and the board members could call into a speakerphone at the town offices (where the public could participate) to deal with the town business. 24 V.S.A. § 1623 allows the selectboard to authorize one of their members to sign the orders for the town. So long as the selectboard is later provided with a record of orders drawn this way, it is an acceptable practice on a temporary basis, as in when a majority of the board are out of town, or as a regular procedure of the board.
- NOT EVERY LOCAL OFFICIAL MUST GET PAID.
While some officers, like clerk, treasurer and tax collector have fees set out by statute, Vermont law states that unless compensation is fixed by law or by vote of the town or town school district, local officials cannot demand payment for their services to the town. However, the law provides that if an official makes a request for payment the auditors must report the claim as well as the nature and extent of the services at town meeting. 24 V.S.A. § 931.
- TOWN OR SELECTBOARD MAY SET SALARY.
A town may vote to compensate any or all town officers for their official services. 24 V.S.A. § 932. However, when a town does not set a salary or stipend for an officer (or for town employees) the selectboard may fix the salary. Note that they may not set their own salary – but the selectboard’s salary can be fixed by the auditors at the time of the annual town audit. Or, if the town has voted to eliminate the office of auditor and the voters fail to fix the compensation to be paid to members of the selectboard, selectboard members shall be compensated at the rate at which they were compensated during the immediately preceding year. 24 V.S.A. § 933.
- SELECTBOARD MAY ENLARGE PLANNING COMMISSION.
In one town the selectboard voted to expand the planning commission from five to seven members. It did so at a regular meeting of the board with little public input and no input from the planning commission. While it is best to involve existing planning commission members in a decision affecting the board (and having potential impacts on quorum issues) the selectboard has the authority to expand the board members and appoint people to fill the new positions. 24 V.S.A. §§ 4321-23. Note that if the planning commissioners are elected, then the law is less clear. It seems that the selectboard can enlarge the commission and can appoint to fill the vacancies it thereby creates. However, the legislative body may only appoint to fill the positions until the next meeting of the municipality, at which time the voters can vote to set the terms of office and may elect commissioners to fill the new terms.
- INTRA-DEPARTMENTAL COMMUNICATIONS ARE NOT PUBLIC RECORD.
In one municipality the planning staff submitted a recommendation to the planning commission about the drafting of a particular provision of the town plan. The question was whether this recommendation was public record. 1 V.S.A. § 317 (17) provides that intra-departmental communications are exempt from the public records law “to the extent that they cover other than primarily factual materials and are preliminary to any determination of policy or action or precede the presentation of the budget at [an open] meeting.” This means that the memo is not public record. However, unless the planning commission has an articulable reason for keeping the memo confidential we recommend making it public. Note also that records that are exempt from the public records law may be discussed in executive session. 1 V.S.A. § 313(6).
- ZONING BOARD MAY NOT TAKE TESTIMONY IN MATTER UNLESS A QUORUM IS PRESENT.
1 V.S.A. § 172. Provides 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.” This means, when the law gives the zoning board authority to hold a public hearing and take testimony, it can only exercise this authority if there is a majority of the board present. In the event that no majority makes it to the hearing, the hearing must be continued to a later date. This same principal applies to a planning commission that holds a public hearing on a plan or bylaw amendment. If a majority of the commission is not present, the hearing must be re-scheduled.
- NO ENFORCEMENT ACTION CAN BE BROUGHT FOR IMPROPER PORCH AFTER 15 YEARS.
One town discovered that a landowner built a porch in violation of the setback requirements in the district. Unfortunately for the town because the porch was added on to the house over 15 years prior to the discovery, a statute of limitations applied which prevented the town from bringing an enforcement action against the landowner for the illegal porch. 24 V.S.A. § 4496.
- ZONING BOARD ACCOUNTABLE TO SELECTBOARD.
A citizen in one town wished to bring a complaint against the zoning board for acting, in what she believed, was a rude and arbitrary fashion. She was surprised to discover that no division of state government was charged with oversight of local zoning boards. Rather, the selectboard has limited oversight insofar as it has the power to remove a zoning board member for “cause.” In order to remove the zoning board member the legislative body must write up charges setting out the basis for removal, and then hold a public hearing on the removal. 24 V.S.A. § 4461. Of course, a party that is not satisfied with a decision of the board can appeal the decision to the Environmental Court. 24 V.S.A. § 4471.
- PROPERTY BOUGHT AT TAX SALE MUST BE SOLD IN ARMS-LENGTH TRANSACTION.
The town bought property at tax sale five years back and a neighbor has asked to purchase the property. The selectboard has an obligation to both the taxpayers of the town and to the delinquent taxpayer who last owned the property to sell the parcel for the highest price possible. The best practice is to try to sell the property for fair market value and allow all members of the public to place a bid or make an offer on the property. Any money that is received by the town in excesses of the taxes, fees, penalties, carrying costs, lost tax revenue and any other costs to the town associated with the property is remitted to the delinquent taxpayer. Bogie v. Barnet, 129 Vt. 46 (1970).
- TOWN MUST MAKE REASONABLE EFFORT TO LOCATE TAXPAYER.
If property purchased by the town at tax sale is re-sold for a profit, the town must make a reasonable effort to locate the taxpayer in order to pay him or her the balance. In the event that the taxpayer cannot be found the town should keep the money in escrow then remit it to the State Treasurer as abandoned property. 24 V.S.A. § 1220.
- SELECTBOARD MUST ELECT CHAIR AND SET MEETING.
At its first meeting following Annual Meeting the selectboard is required to elect a chair, a clerk (of the board), adopt a rules of procedure (Roberts Rules for Small Boards, or any other rules, including ones made up by the board) and set the schedule for its regular meetings. The board should also decide how the agenda is created. In some towns the chair does it on his or her own, but the best practice is to allow all members of the board a chance to add items to be discussed. At its organizational meeting the board must also appoint people to fill the offices of fence viewers (3), a poundkeeper, inspectors of lumber, shingles and wood, weighers of coal, and a tree warden. 24 V.S.A. § 871.
- BOARD MAY CHOOSE TO ROTATE CHAIR.
In one town no board member wished to serve as chair so the board agreed to rotate the position. There is no law that would prevent this, however, in some towns, the tradition is for the longest serving member to serve as chair for 1 year until the next election. This may be less confusing for the public and town officers and employees who have to work with board.Opinions of Opinions
Opinions Volume 3 Number 3 March 2001
top of this section March Opinions "Table of Contents" SOS HOME
A Special Congratulations to...
Town Clerks Margaret (Peg) Picard of South Burlington and Frena Phillips of Westford both of whom are retiring after many years of service to their towns. Both Peg and Frena have served their communities and the state of Vermont well and have been role models for many of us over the years. We will miss them and hope they continue to stay involved in town government.
Congratulations are in order to Patti McCoy. Patti has been accepted into the First Level Membership of the IIMC Master Municipal Clerk Academy. Patti is the 906th person in IIMC to achieve membership in the First Level of the IIMC Master Municipal Clerk Academy.
Leadership Workshop for Local Board Chairs
This session will bring together chairs of Local Boards to discuss such topics as
Speakers will include Secretary of State, Deborah L. Markowitz, Attorney and experienced board chair Paul Gilles, with a special welcome from Lieutenant Governor, Douglas Racine and House Speaker Walter Freed.
- Who is the boss in local Government?
- Open Meeting Law
- Efficient and effective meetings
- Dealing with the press
Please RSVP to Martha Trombley by April 18, 2001 at (802)828-2363
- Monday, April 23, 2001, 3:00 – 5:00 p.m.
- Reception to follow
- Vermont State House, Room 11
Justice of the Peace Workshop
Overview of the J.P. Duties
Speakers include:
Secretary of State, Deborah L. Markowitz,
Paul Gillies, Esq., and Charles Merriman, Esq., Vermont Tax Dept.
Monday, April 2, 2001, 4-6 p.m.
Rutland Town Offices, Rutland, VTWednesday, April 4, 2001, 7-9 p.m.
Danville Town Offices, Danville, VTTuesday, April 10, 2001, 7-9 p.m.
Springfield Town Offices, Springfield, VTThursday, April 12, 2001, 4-6 p.m.
Fisher School, Arlington, VTMonday, April 16, 2001, 7-9 p.m.
Williston Town Offices, Williston, VTWednesday, April 18, 2001, 4-6 p.m.
Swanton Village Municipal Complex, Swanton, VT
For more information, and to register, please contact Melanie Jacobs (800)439-8683.
"Upcoming Workshops and Announcements"
Opinions Volume 3 Number 3 March 2001
top of this section March Opinions "Table of Contents" SOS HOMEThursday, March 1
(Five days before town meeting) Treasurer must settle accounts with Auditors. 24 V.S.A. § 15781 Town meeting warning must be published in newspaper by this date if town report has not been distributed otherwise.
Saturday, March 3
(At least three days prior to election) By this date board of civil authority must designate pairs of justices assuring political balance in each pair to deliver ballots to ill and disabled voters in towns using Australian ballot. 17 V.S.A. § 2538(a)3-4-5
(On any of the three days immediately preceding the first Tuesday in March) Towns which have voted to do so must hold the open meeting portion of their annual town meeting (at a time set by the selectboard) 17 V.S.A. § 2640(b)(c)Monday, March 5
In towns using Australian ballot, voters may request absentee ballots until 5 p.m. (or the closing of the town clerk’s office). An authorized person may apply for an absentee ballot on behalf of an absent voter until 12 noon. 17 V.S.A. § 2531(a)5
Board of civil authority must appoint a presiding officer if the town clerk or other regular presiding officer is unable to preside at the Australian ballot portion of town meeting or if more than one polling place is used. 17 V.S.A. § 24525 Prior to the day of the election, board of civil authority must appoint assistant election officers for town meeting. 17 V.S.A. § 2454
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Town clerk or other presiding officer must notify election officers of their hours and duties. 17 V.S.A. § 24555
Last day for board of civil authority to meet to revise checklist before town meeting. 17 V.S.A. § 21425
Last day for legislative body to hold public informational hearing on any public question to be voted by Australian ballot at town meeting. 17 V.S.A. § 2680(g)5
(Before polls open) In towns using Australian ballot, town clerk must give election officials a list of those voters who have already cast absentee ballots. 17 V.S.A. § 25489a)5
(Before polls open) in towns using Australian ballot, presiding officer must post copies of the warning and notice, sample ballots, and voter information cards. Also, signs should be placed on or near the ballot boxes explaining procedures for depositing the ballot. 17 V.S.A. § 2523Tuesday, March 6
Town Meeting Day (first Tuesday in March). 1 V.S.A. § 371, 17 V.S.A. § 2640(a)6
(Upon opening of polls) in towns using Australian ballot, list of absentee voters must be posted at polling place(s) and in town clerk’s office and must remain posted until all votes are counted. 17 V.S.A. § 24346
Presiding officer must ensure that there is no campaigning of any kind and no campaign literature displayed, placed or distributed inside the polling place. On walks and driveways leading to a polling place, no candidate or other person may physically interfere with the progress of a voter to and from the polling place. 17 V.S.A. § 25086
Towns using Australian ballot must open polls no earlier than 6 a.m. and no later than 10 a.m. (opening hours set by the board of civil authority). Polls remain open until 7 p.m. 17 V.S.A. § 25616
For those who became eligible to vote after the second Saturday prior to town meeting and had notified town clerk of intent to apply for addition to the checklist, the board of civil authority may act on applications until polls are closed. 17 V.S.A. § 2144(c)6
Moderator opens business meeting at the time established by selectboard (unless town voted otherwise at a preceding meeting). 17 V.S.A. §§ 2655, 26576
In towns using Australian ballot, as soon as possible after the polls close, town clerk or other presiding officer must examine entrance and exit checklists and prepare a statement of discrepancies. 17 V.S.A. § 25836
In towns using Australian ballot, presiding officer directs election officials in counting ballots. 17 V.S.A. §§ 2581, 25826
In towns using Australian ballot, election officials must seal all ballots, entrance checklist(s) and tally sheets. 17 V.S.A. §§§ 2590, 2689, 2583Wednesday, March 7
(No later than 24 hours after polls closed) Presiding officer and one other election official shall transfer the totals from the summary sheets tot he return and both sign the return. 17 V.S.A. § 2588Thursday, March 8
(Within 48 hours of the close of polls) Town clerk shall deliver one certified copy of return to Secretary of State, county clerk and other district clerk. 17 V.S.A. § 2588Sunday, March 11
(Within five days after town meeting) Town clerk is to report to the director of property valuation on method adopted at town meeting for collection of taxes. 32 V.S.A. § 5167Monday, March 12
(Within six days after town meeting) town clerk is to report to the director of property valuation on method adopted at town meeting for collection of taxes 32 V.S.A. § 5167Tuesday, March 13
(Within seven days after election) Last day for selectboard or town clerk to warn a run-off election if there was a tie vote for any Australian ballot race at town meeting. 17 V.S.A. § 2682(e)Friday, March 16
(Within 10 days after election) Last day for a defeated candidate requesting recount of an election voted by Australian ballot to file a petition with the Town Clerk. 17 V.S.A. § 268316
(Within 10 days after the election) Deadline for a voter to file a request for a recount with the town clerk of any issue voted by Australian ballot. 17 V.S.A. § 2688 16
(Within 10 days after town meeting) Last day for town clerk to certify result of voting if vote was required before an act of the general assembly takes effect. 17 V.S.A. § 2663216
Last day for candidates for town meeting local election who are spending more than $500 to file second campaign finance report with officer with whom nominating papers were filed. 17 V.S.A. § 2822Wednesday, March 21
(Within 15 days after an election) Last day a voter contesting any Australian ballot vote can file complaint with Superior Court. 17 V.S.A. § 2603(c)Wednesday, March 28
(15 days after the warning of the run-off election) First day a run-off election may be held. 17 V.S.A. § 2682(e)March 2001 Calendar
Opinions Volume 3 Number 3 March 2001
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