|VERMONT SECRETARY OF STATE - Jim Condos|
|State of Vermont
Office of the
Secretary of State
Volume 3 Number 5
|Message from the Secretary||Table of Contents|
This past month Governor Howard Dean signed into law three Acts relating to the conduct of elections in Vermont. I want to thank my Town Clerk Advisory Committee, the House Local Government Committee, the Senate Government Operations Committee and the Vermont Municipal Clerk and Treasurer’s Association for their hard work crafting and passing a bills that will modernize and improve Vermont’s election law to enhance public confidence in our democracy.
At a time when our country is grappling with the need to improve our voting systems, and public cynicism about politics and government is at an all time high, it is more important than ever to ensure that Vermont’s elections are conducted in a free and fair manner.
This newly signed legislation makes some important changes from prior law to start July 1st of this year.
They change the terminology from absentee ballot voting to “absentee or early voting.” to dispel any remaining notions that absentee ballot voting is only for voters who are sick or disabled, and allows voters to pick up an absentee ballot at the clerk’s office to return at a later date. The new law also permits the clerk to divide the voter checklist into an active and an inactive list, to address the difficulty of purging the checklist under motor voter and directs the Department of Motor Vehicles to provide registration applications with an extra copy for the voter, with language directing the voter to keep their copy to bring to the polls as proof of registration. The new law expressly permits the BCA to add to the checklist the name of a person who signs a sworn affidavit that they completed and submitted a valid application for addition to the checklist of that town before the deadline for applications and who otherwise are qualified to be added to the checklist. Feel free to call our office or visit our web site (www.sec.state.vt.us) for a copy of these these changes to our election law.
Deborah L. Markowitz
Secretary of State
A Voice from the Past
by Paul Gillies
THE PUBLIC APOLOGY
Sometimes it seems town life is little more than a series of skirmishes among competing individuals. It’s something in the volunteer nature of local government that invites this kind of sparring between citizens and officials or among officials, either on the same board or on different boards whose orbits sometimes collide.
Forceful personalities make good leaders, but strong wills also breed difficult confrontations. This is particularly true when the strength and determination of a leader are not balanced by those other qualities that define leadership, including tolerance, patience, and an essential openness and honesty.
This last quality deserves study. It does not come naturally for most of us. In a public forum, it is unnatural to take down your defenses and try to deal with people as you would a family member or friend. There is something artificial about the relationship, having more to do with ego, turf, and the predispositions of people against government in any form, that does not promote an open and trusting environment.
Peace and harmony are not the usual products of local government, and we would be smart in recognizing that first off, but there are options to be tried to make the town office a better place to work all hours of the day.
The first is perspective. You have to know when to recognize that what you’re fighting over is just plain silly, and be able to move on. What’s important is the big picture—that people are being treated fairly, that public money is being spent wisely, that the needs of the community are being met. What’s not important are the petty squabbles over what somebody said or what somebody thought somebody else said that take up all the valuable time in meetings and fuel the gossip that follows the next morning when the office opens.
The second is big shoulders. As a lawyer, Abraham Lincoln used to rile his clients by his willingness to concede every point except the central one, the one that advanced his client’s position. This requires more than perspective; it means being willing to lose on issues you should win on, because they simply aren’t important.
This is where the public apology comes in. A well-timed apology is the nicest gift you can give the town. It doesn’t mean a loss of face. It is more often an inspiration to others to rise above the petty cares of the moment and move on to more critical matters. Saying “I’m sorry” is not a sign of weakness; it’s a way of putting down weapons and inviting combatants to start the discussion again in a calmer setting.
That’s the secret of getting along with anybody: being big enough to take responsibility for every failure to resolve differences. There are difficult people everywhere, and we can’t get rid of all of them. So learn to deal with them, even when it means conceding inessential points to them, even if that makes you grind your teeth on the way home, even when it means stepping down temporarily because of a conflict (a conflict bred during the argument for instance, after realizing this issue may be more easily resolved if I weren’t the target of the other person’s wrath), even when that means losing this round.
|The Role of the BCA|
Legislative Reapportionment and The Role of the Boards of Civil Authority
Every ten years the legislature must reapportion itself, based on the latest census. While the ultimate authority resides in the House and Senate, the process requires the active involvement of the boards of civil authority of the towns.
The towns have two duties. This Spring they must review the tentative proposal prepared by the Legislative Apportionment Board and give the Board their comments about the original plan. Boards will receive copies of the tentative plans before June 1 and will need to respond to the Legislative Apportionment Board by July 1. As the BCAs develop their plans, they should take into account the statutory guidelines of 17 V.S.A. § 1905.
Next year the BCA’s of some (not all) towns will need to act to subdivide larger representative districts after the legislature has adopted a final plan. But for now, plan on holding a meeting between June 1 and July 1 to review and comment on the tentative plan.
Any towns wishing to make joint recommendations can ask for a member of the Legislative Apportionment Board to preside (without a vote) over a joint meeting of two or more BCAs.
Legislative Apportionment Board Hearing Dates and Times
Wednesday, May 9---Board Meeting Room,
Danville Town Offices, Danville; 6:30 p.m.
Wednesday, May 16---Alderman's Chamber
(2nd Floor), City Hall, Rutland; 6:30 p.m.
Come and provide input on the proposed redistricting plans.
For more information check out our web site at
|Opinions of Opinions|
- DELINQUENT TAX COLLECTOR MAY BE ELECTED FOR THREE-YEAR TERM.Beginning in July, a new law amending 17 V.S.A. § 2646 will permit a town to elect a delinquent tax collector for a term of three years. When a town chooses to elect a delinquent tax collector for a three-year term, that term length will remain in effect until the town rescinds it by the majority vote of the legal voters present and voting at an annual meeting, duly warned for that purpose.
- ONLY ACTUAL ATTORNEY FEES CAN BE CHARGED TO DELINQUENT TAXPAYER.When the delinquent tax collector uses an attorney to begin the tax sale process, the delinquent tax collector may add the actual and reasonable attorney fees that it has incurred to the fees owed by the delinquent taxpayer. 32 V.S.A. § 5258. The amount charged for attorney’s fees may not exceed 15% of the total tax owed. Note that past practice of some towns was to simply pay an attorney 15%, no matter how much time was spent on a particular sale. An amendment to section 5258, adopted in 1995 makes it clear that this can no longer be the practice – a town may only charge the taxpayer for the expenses actually and reasonably incurred by the tax collector for legal assistance in the preparation for or conduct of said sale.
- TAX COLLECTOR MUST HAVE SELECTBOARD’S APPROVAL TO HIRE ATTORNEY.Although the delinquent tax collector may choose whether, when and where to hold a tax sale, the collector does not have authority to contract with an attorney to assist in conducting the sale. Even though an attorney, in this instance, is not generally paid from town revenues, the law requires the delinquent tax collector to seek the selectboard’s approval before obtaining legal assistance.
- PROPERTY APPRAISAL MAY BE EXEMPT FROM DISCLOSURE.Appraisal of property as part of a negotiation for purchase by the town is exempt from public disclosure until after the contract is signed. Vermont public records law exempts from disclosure “information pertaining to the location of real or personal property for public agency purposes prior to public announcement of the project and information pertaining to appraisals or purchase price of real or personal property for public purposes prior to the formal award of contracts thereof.” Note that once the contracts are signed the appraisal would become public. This ensures that there is public accountability. 1 V.S.A. § 317(13).
- E-MAIL CAN BE USED FOR DELIBERATION.Ordinarily, decisions made by a board outside of a public meeting – whether they are made at a party or through use of e-mail will violate the open meeting law. However, because deliberations of a quasi-judicial body (when the board is acting like a court), where the decision will be in writing, can be held outside of a public meeting, there is no prohibition against a board conducting its deliberations through e-mail by passing draft decisions back and forth between board members.
- BEWARE: E-MAILS SENT BETWEEN BOARD MEMBERS ABOUT PUBLIC BUSINESS MAY BE PUBLIC RECORD!Even if two board members e-mail to and from their home computers, those messages will be subject to the requirements of the public record laws. This means that if the subject matter of the e-mail is not exempt from the public records law, by, for example, being about a personnel matter, then it must be disclosed upon request.
- E-MAIL MAY BE USED FOR ROUTINE COMMUNICATION.Boards must take care not to violate the open meeting law through use of e-mail. Decisions about town business must be made at the public meeting – as should information gathering and discussion of the town business by a majority of the board occur only at the public meeting. This means that e-mail should play a limited role in the conduct of town affairs. In one town the manager sends daily or weekly reports to board members – this is appropriate. In another, board members e-mail the chair with items for the meeting agenda and the chair e-mails the board members to discuss when the best time is to schedule a special meeting of the board.
- TOWN MAY ALLOW PUBLIC TO USE TOWN SAND.Many towns permit local landowners and businesses to use sand during the winter from the town sand pile. If a town wishes to allow the public to take sand we advise that the town adopt a uniform policy so that all members of the public feel as though they are treated equally.
- THE SAME PERSON MAY SERVE AS BOTH VILLAGE TREASURER AND TOWN SELECTBOARD MEMBER.It is not incompatible for one person to serve both as a village treasurer and as a member of the town selectboard. Although it is incompatible for one person to serve as both treasurer and selectboard member/trustee of the same municipality, because the town and village are separate municipal entities, there is no incompatibility for the same person to serve on the legislative body of one municipality and as treasurer for the other. 17 V.S.A. § 2647. (Note that this same rule does not apply to town treasurers and school board members because town treasurers serve also as the school treasurer.)
- PERSON APPOINTED TO FILL A VACANCY SERVES UNTIL NEXT ELECTION.When a person is appointed to fill out an unexpired term, the appointment is valid until the next election. This means that if a person is appointed to fill a two-year term in 2001, she must run in 2002 to remain in office. Note that, at any time the voters can petition for a special election to fill the vacancy – and if done by election, the vacancy is filled for the unexpired term. 24 V.S.A. § 963.
- IF THERE IS A VACANCY IN MAJORITY OF SELECTBOARD MEMBERS, THE SECRETARY OF STATE CALLS SPECIAL ELECTION TO FILL VACANCIES.Although this is a rare occurrence, Vermont law contemplates the secretary of state calling a special meeting to fill vacancies in a town where there are so many board vacancies that there is no quorum left to call a meeting. The law permits, the secretary to also, for that interim period, appoint and authorize the town clerk or another qualified person to draw orders for payment of continuing obligations and necessary expenses of the town until the vacancies are filled. 24 V.S.A. § 963.
- FORMER OFFICIAL MUST PASS TOWN PROPERTY – INCLUDING PAPERS AND RECORDS - TO NEW OFFICIAL.When a town or town school district office becomes vacant by expiration of the term of office of the incumbent, or otherwise, and a successor is elected or appointed, on demand, the new official is entitled to receive from the last incumbent of the office or anyone having possession of the same the records, files, books and papers of such office, or property of the town or the town school district, as the case may be. A person having such records, files, books, papers or other property in his possession who refuses for ten days after such demand to surrender the same may be fined (only $10/week) for his or her refusal. 24 V.S.A. § 991.
- WHEN LESS THAN A MAJORITY APPEAR AT HEARING THE HEARING MUST BE RE-WARNED FOR NEW DATE.In one town, when the zoning board fails to achieve a quorum for a hearing on a matter it opens the hearing and then adjourns to a date certain. However, because it is unclear whether less than a majority can "act" to open the hearing at all – even just to adjourn to a date certain, the best practice is to re-warn the hearing. 1 V.S.A. § 172.
- WHENEVER A WRITTEN OPINION IS REQUIRED, THE MINORITY IS FREE TO WRITE A DISSENTING OPINION TO EXPLAIN THEIR VOTE.Every once in awhile a dissenting member of a board feels so strongly about a matter that he or she wishes to attach to the written decision an opinion explaining why he or she did not vote with the majority. There is no law prohibiting this, and indeed, it may give the public a better understanding of the complexity of the situation, and the different viewpoints of the board.
- MEMBER OF THE PUBLIC CANNOT FORCE BOARD TO AMEND MINUTES.In one town a member of the public believes that the minutes of a meeting of the board misquoted her. Although this individual may go to the board to request they amend the minutes -- whether minutes are approved or amended is solely in the discretion of the board. In such a case it might be appropriate to allow the individual to lodge her objection in writing, and file that writing with the meeting minutes.
- TOWN CLERK IS NOT REQUIRED TO BE CLERK OF THE BOARD.In many communities the town clerk serves also as the clerk of the selectboard. Law does not require this arrangement. This means that the board can only appoint the town clerk to serve as clerk of the board, if he or she is willing to serve in that capacity.
- SECRETARY OF STATE HAS NO AUTHORITY OVER LOCAL OFFICIALS.In Vermont there is local control of town affairs. This means that neither the Secretary of State’s Office nor the Department of Education has authority to investigate complaints or force local officials to take particular actions. However, if a local official fails to perform mandatory duties the State's Attorney or the Attorney General can bring an action against the official. 13 V.S.A. § 3006 provides that "A state, county, town, village, fire district or school district officer who willfully neglects to perform the duties imposed upon him by law, either express or implied, shall be imprisoned not more than one year or fined not more than $1,000.00, or both.." Of course, very often the real way to solve the problem with a board member is political – voters have an uncanny way of not re-electing those officials who are unresponsive!
- TOWN MUST APPOINT TOWN SERVICE OFFICER.Vermont law provides that on or before April 15th of each year the selectboard must appoint a town service officer and notify the commissioner of social welfare of the appointment. A selectboard member may be a town service officer, but the officer does not have to a resident of the town and may serve simultaneously more than one town. If the selectboard fails to appoint a town service officer the commissioner may do so, and in the absence of the town service officer any selectman may act in his behalf. Town service officers are compensated by the state for their services. 33 V.S.A. § 2102.
- TOWN SERVICE OFFICERS PROVIDE EMERGENCY ASSISTANCE.Town service officers receive applications for assistance, investigate and make determinations of eligibility for general assistance, and makes emergency grants from funds advanced to him or her for emergency general assistance. The service office must perform other duties, including such investigations, under the welfare code as the commissioner of social welfare may direct. 33 V.S.A. § 2102.
- A TOWN CLERK MUST RECORD PROPERLY SUBMITTED DEED AND SURVEY (CONFORMS TO STATUTORY REQUIREMENTS IN 27 V.S.A. § 341) EVEN IF AN ABUTTER OBJECTS THAT IT CONTAINS INCORRECT INFORMATION.The recording function of the clerk is purely ministerial. With few exceptions, it is the clerk’s duty to record what is submitted to her without regard to its veracity (whether a document so recorded is accurate is a private matter between the owner of the property and whoever else might have an interest in the property.) If a correction needs to be made, a new corrected deed or survey must be submitted for recording.
- THE SELECTBOARD CAN IGNORE WISHES OF SCHOOL BOARD WHEN IT APPOINTS TO FILL A VACANCY.Although Vermont law requires the selectboard to seek the advice of the remaining members of the town school board when it is to fill a vacancy in that board, no law requires the selectboard to follow the advice of the school board. Rather, the selectboard can appoint any legal voter that it considers the best person for the position. 16 V.S.A. § 427
- A PERSON IN A CORRECTIONAL INSTITUTION MUST REGISTER TO VOTE IN THE LAST TOWN IN VERMONT THAT THE PERSON RESIDED IN PRIOR TO INCARCERATION.17 V.S.A. § 2121 and 2122(a) provide that “a person can neither gain nor lose residency…while in a correctional institution. In addition, 28 V.S.A. § 807 provides that an incarcerated person cannot register to vote in the town where the correctional facility is located. While some attorneys consider this provision to be unconstitutional, it has not been challenged in court.
- BUDGET RE-VOTES BY AUSTRALIAN BALLOT MAY BE WARNED FOR AS FEW AS TEN DAYS BEFORE THE VOTE.In a town using Australian ballot for budget votes, if the budget is defeated and must be presented again to the voters, 17 V.S.A. § 2680 provides a shorter warning period of 7 days (not the standard 30 to 40 days.) However, because section 2680(g) requires 10 days warning for the public hearing, we recommend that towns that wish to take advantage of this shortened warning period post both warnings together at least 10 days before the hearing.
- TITLE 17 REQUIRES THAT THE VOTER CHECKLIST INCLUDE THE MAILING ADDRESS OF EACH VOTER.The voter checklist should include the current mailing address of voters, which means that the checklist should be updated to include the correct E911 addresses unless the person has a Post Office Box for a mailing address or unless the person filed a confidentiality request form to keep the E911 address out of public records. Towns will also want to update mailing addresses this year so that when the clerk sends out “purge letters”, these letters will be sent to the most recent address of the voter.
- ABSENTEE BALLOTS CAN BE MAILED TO VOTERS UPON REQUEST OR CAN BE DELIVERED BY A PAIR OF JUSTICES OF THE PEACE TO VOTERS WHO ARE ILL OR PHYSICALLY DISABLED.17 V.S.A. § 2539 AND 2538. Absentee ballots cannot be delivered by any other Town Official. There are no exceptions to this rule. Not the town clerk. Not selectboard members. ONLY pairs of Justices can deliver absentee ballots and ONLY to ill or physically disabled voters. After July 1, 2001, the law will be changed to allow a voter to pick up his/her own ballot at the Town Clerk’s office. The law remains that ONLY pairs of Justices can deliver a ballots to ill or physically disabled voters.
- THE SELECTBOARD MUST PASS A RESOLUTION OF PUBLIC NECESSITY TO BEGIN THE PROCESS FOR A BOND VOTE.24 V.S.A. § 1755. All bond votes require special and additional notice and warning to be provided as directed in 24 V.S.A. § 1756. The ballots must be prepared as directed in 24 V.S.A. § 1758. Selectboards and town clerks must provide copies documenting the various steps to bond counsel. It is wise to confirm that you have covered all the steps with bond counsel before the warning period expires.
In our monthly Opinions we provide what we believe the law requires based upon our legal judgment, years of observing Vermont’s local government practices, and Vermont Court decisions. This information is intended as a reference guide. This information is not intended to replace the advice of legal counsel.
Remembering those who served their communities
and the State of Vermont
In Memoriam of
MUNICIPAL RECORDS 2001 SURVEY
Thanks to all of you who participated in the recent survey on the condition of municipal records sponsored by the State Archives, the Vermont Municipal Clerks' and Treasurers' Association (VMCTA), and the Vermont Historical Records Advisory Board (VHRAB). The survey builds upon an earlier survey done in 1998-99 (the results of that survey are available at http://vermont-towns.org/Munrec/munrprt.htm).
We received 141 replies. Some preliminary results are:
- Eighty-six clerks report daily requests for retrieval or copying of records; forty report weekly requests; twelve monthly and only three indicated such requests as "rare."
- One hundred twenty-five reported that record requests have increased in the past five years; only seven experienced a decrease in requests.
- Seventeen clerks included the actual number of annual requests, averaging 555 requests a year. At the high end were clerks who received over a thousand requests a year; the lowest reported total was ten.
- One hundred twenty-six clerks have vaults, with eighty-nine of the vaults being at least four hour fire rated. Safes, fireproof filing cabinets, and office shelving were other storage devices listed.
- Most vaults lack environmental controls that can stabilize the records; twenty-five vaults had temperature controls and thirteen had humidity controls.
- Most clerks had roller shelving (109) and maps cases or hanging files (94).
- Twenty clerks reported that their vaults were currently out of space; eighteen calculated their vaults would be full in one to four years; and thirty-three thought their vaults would be full within five to ten years.
- One hundred thirty-five clerks use a computer, forty-three as part of an office network and ninety-two as stand alone desk top computers.
- Fifty-three clerks back-up their computers daily; forty do so weekly; and twenty-six monthly. Three reported no back-up procedures.
- Twenty-one clerks have a technology plan for coordinating the implementation and upgrading of hardware and software and sixty-eight have a technology budget.
- Forty municipalities have long range conservation plans to guide priority and budget decisions. Amounts spent on conservation in the last year ranged from $655 to $5,800.
- One hundred-six respondents had adopted the $1 preservation surcharge; seven reported abolishing or reducing the surcharge following passage of Act 155 of the 1999 adjourned session (2000).
- The amounts raised by the surcharge in the last year ranged from $45,000 to $96.
Like most of you, I am inundated by questionnaires and surveys. As frustrating as they can be, surveys can provide baseline information on the creation, use and preservation of municipal records; that, in turn, provides us with planning tools.
The municipal record surveys suggest a lack of accessible planning information. That only seventeen clerks reported accessible, quantifiable information on record use is a case in point. Such information can guide planning vault or user space, photocopier needs, and other considerations. It could also counter perceptions of "dusty, old archives" by suggesting how much local economic activity depends on municipal records.
The absence of such information retards effective planning in general. That 106 clerks reported having the preservation surcharge, but only forty have long term conservation plans, or that 135 clerks use computers, but only twenty-one report having technology plans, indicate the problem. How are decisions made about what records to conserve, in what order, at what cost? Given the host of issues associated with computers--the rapid turnover of generations of hardware and software, the need to migrate data and records across the generations, the costs of upgrades and training, and the benefits of compatible systems within municipal offices are examples--planning is essential. Are our technology plans driven by our recordkeeping requirements, or is it the other way around?
These and other questions need our sustained attention. As VHRAB begins to plan this summer's workshops and to continue to offer grants to bolster planning, we look forward to partnerships with the clerks in providing the best service possible.
ARE YOU A J.P. THAT MISSED THE RECENT TRAININGS?
If so, you are in luck! A video tape of the Training has been distributed to Vermont Access Networks. The following towns will be airing the training on their public access channel. Please contact your local station for details on dates and times.
Barre, CVTV, Channel 17
Bellows Falls, F.A.C.T.
Chittenden, Channel 17
Enosburgh/Richford, North Country Cablevision
Manchester, Northshire Access TV
Middlebury, Middlebury Community TV
Montpelier, Adelphia Channel 15
Norwich/Hartford, Community Access TV
Richmond, Mt. Mansfield Community TV
Rutland, Rutland Region Community TV
Shelburne, Channel 2
St. Albans, NWPEG-TV
St. Johnsbury, Kingdom Access TV
Wilmington, Duncan Cable TV
We also have made video cassettes of the training which can be borrowed upon request. For more information contact: Talia Latif 802-828-2464, Email: email@example.com
ATTENTION TOWN CLERKS AND TOWN OFFICERS:
The Office of the Secretary of State Announces: The Vermont Flag Project.
If your town office does not currently have a Vermont state flag, please let us know. You may be eligible to receive a flag to fly in your town.
For more information contact: Martha Trombley firstname.lastname@example.org 802-828-2148
Tuesday, May 15
Last day for Town Clerk to remit to State Treasurer an accounting of dog and wolf-hybrid licenses sold and remit the license fee surcharge for animal and rabies control program. 20 V.S.A. § 3581(f)
Wednesday, May 30
MEMORIAL DAY. 1 V.S.A. § 371
Looking ahead to June...
Friday, June 1
Deadline for Listers to lodge personal property inventories with Town Clerk. 32 V.S.A. § 4007
Monday, June 4
(Within 60 days of petition) If a petition for reconsideration or rescission of a question considered or voted at Town Meeting has been filed, this is the last day in which a municipal vote may be held at a duly-warned meeting. 17 V.S.A. § 2661(b)
Tuesday, June 5
(90 days after Town Meeting election) in towns using Australian Ballot, Town Clerk may open and destroy used Town Meeting ballots and tally sheets, except as otherwise provided by law. 17 V.S.A. § 2590(d)
Saturday, June 30
End of fiscal year for all school districts, charter provisions not withstanding, and for municipalities that have adopted July 1 through June 30 fiscal year calendar. 32 V.S.A. § 1, 24 V.S.A. § 1683(b)(c)
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