State of Vermont Office of the Secretary of State

Message from the Secretary	Table of Contents
With the general election barely behind us it is time to recognize the exceptional work of those people who run our elections. I want to recognize my Election Division staff – Kathy DeWolfe, Melanie Jacobs and David Crossman. I want to thank Kathy and her staff for their great planning, keen attention to detail and high level of professionalism. We had one of the smoothest elections in recent memory – due in large part to their efforts. I also want to recognize Vermont’s Town Clerks and their election assistants. It is not easy to run an election. Long lines of voters waiting to check in, voters who can’t remember where they are registered, politicians glad-handing voters outside the polling place, poll watchers who can’t hear names and, this year, piles and piles of absentee ballots to process. And yet, it is essential to our trust in the democratic process that our election workers perform their duties professionally, and without bias. I am proud that Vermont’s Town Clerks and their election assistants ensured that this year’s election ran well. Congratulations and thanks to all who made this possible! I also want to express my personal gratitude to the people of the State of Vermont for honoring me by electing me to serve as Secretary of State for two more years. If you have any thoughts about how we might improve our services to Vermont’s local officials in this next term please give us a call. Thank you! Deborah L. Markowitz Secretary of State	Message from the Secretary "Voice from the Past" by Paul Gillies Opinions of Opinions Holiday Displays Archives Update Tip of the Month Calendar Opinions Newsletter Home Page
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A Voice from the Past: by Paul Gillies
YOU SAID THAT ALREADY Great truths never wear thin, as ideas. But if you listen to what people say, in meetings and hearings, you may be inclined to conclude that what passes for truth, or wisdom, is old and trite, tiresome and wrong. "If it ain’t broke, don’t fix it." I’ll bet the first time that was said, everybody in the room keeled over with knowing laughter. The trouble was, everybody there went out of that room and told 213 other people, who laughed and did the same thing. It grew from a clever response into a chant, which is too often used as a simple-minded excuse for not taking action. "Our hands are tied." There are many legitimate excuses for failing to act. You might need more information. You might lack authority. But when you want to say "no," just say why, honestly and directly. The essence of responsibility is facing up to the hard part, not just of deciding, but of explaining your reasons. "Let’s split the difference." King Solomon used this approach in determining the real mother of a baby. The one who refused the bisection was the real mother, in that story. We call very wise people Solomonic, because of this. But Solomon never did any real splitting, and those who recite this axiom before they blindly give each side a fair share of the spoils are not very wise. They are, instead, taking the easy way out, and in that there is often no justice. "It’s the economy, stupid." President Clinton used this phrase in his first presidential campaign. It was smart, sassy and direct, and it worked to elect him. It’s fun to call people stupid, isn’t it. They can’t be smart, because they don’t agree with you. No reason to listen to what they have to say. No reason to treat them with respect, even if they aren’t as articulate as you are. It isn’t the phrase itself that offends; it’s the attitude. "I am right and you are wrong." Doesn’t that say a lot about your openness, tolerance and respect for other people? "Here we go again." A big sigh must accompany this statement. It means, we’ve heard this all before, and we know how it’s going to come out. Parents and children play out this drama daily; so do bosses and employees. It is the sound of a door slamming shut on any dialogue, any understanding of each other’s needs. Let’s build a big bonfire, and throw all these silly phrases into the flames as we dance around, and promise ourselves we’ll never use them again. Saying the same thing over and over does not make it truer. In fact, it often drains more meaning from the words with each repetition. Plain speaking is the best policy. That way, when a man or woman comes before you, when they bring their troubles to your desk or table, you will be able to listen to what they have to say, reserving judgment until they are done, and make a proper decision. A proper decision is one that is made carefully, working through the pros and cons, weighing them, maybe sleeping on it for a couple of nights, and then presenting it in words that clearly explain the reason for the conclusion. Time can be a great burden in this process. Don’t let them rush you. When the law gives you 30 days, or 15, use it. When you reach the final moment, watch what you say. It may be an empty phrase masquerading as a truth.
Opinions of Opinions
1. Guardian May Not Cast Vote For His Charge. There is no power of attorney or guardianship order that allows the person with the power or the guardian to cast a vote for another person. A family member or authorized person can request that an absentee ballot be sent to another voter, but each voter must vote his or her own ballot. A voter can also ask for assistance from any person of his or her choice (except an employer or union representative), but no one can "substitute" vote for another. 2. Sealed Absentee Ballots May be Returned By Anyone. After a voter has voted his or her ballot, placed it into the inside envelope and sealed it, completed the certificate and then placed the inside envelope into the outside envelope, the entire package can be returned to the town clerk’s office by anyone. There are no restrictions on who can deliver the sealed ballot to the clerk because the ballot is sealed in the envelope and could not be tampered with by the deliverer. This includes candidates on the ballot in the election. This applies for Town Meeting Australian ballot votes as well as the primary and general elections. 3. Delivered Absentee Ballot Cannot Be Returned To Voter. Once a voter has returned his or her voted ballot to the town clerk’s office, the ballot cannot be returned to the voter for any reason. A voter cannot change his or her mind and ask for the ballot back. 4. Presiding Officer May Not Alter or Mark Campaign Signs. The Presiding Officer has authority to ban unattended signs from being placed in the ground on the polling place property on election day, and can remove unattended signs placed on the property on election day; however, the Presiding Officer does not have authority to alter or make any marks upon any sign. No public official has the authority to alter or mark on any sign. When authorized by statute, a sign can be removed, but never defaced. 5. Absentee Voter Must Return Unvoted Absentee Ballot If He Or She Wishes To Vote At Polls On Election Day. If a voter who has requested an absentee ballot, appears at the polling place on election day and requests a ballot, the voter cannot be given a ballot until he or she has returned the absentee ballot and envelopes that were given or mailed to the voter. If the voter states that the ballots and envelopes were lost or mislaid, the voter must go to court to get a court order to be given another ballot. 6. A municipal or town ordinance cannot be adopted or established by vote of the electorate. The law permits only the Selectboard to adopt an ordinance (with the exception of Ethics ordinances.) Once an ordinance has been adopted, legal voters of the town can bring a petition signed by 5% of the voters within 44 days of the adoption of the ordinance to require the selectboard to warn a meeting to allow voters to vote to disapprove an ordinance. However, a petition can not be used to force a town to vote to adopt an ordinance. 24 V.S.A.§1792 and 1793. 7. Voters Cannot Petition To Rescind An Ordinance. The law does not permit the voters to petition to rescind an ordinance once it has been adopted by the selectboard and has become effective. Rather, the voters must convince the selectboard to rescind the offending ordinance. 24 V.S.A.§1792 and 1793. 8. JP Terms Begin February 1^st. Although Justices of the Peace have been elected (on November 5^th, 2002), the term of office for the newly elected JP’s does not begin until February 1, 2003. A person elected as a JP can take the oath and return the oath of office to the Town Clerk at any time after receipt of the Certificate of Election, but the person cannot perform any duties of a JP until February 1, 2003. 9. Oath of Office. A justice of the peace is not fully qualified to serve until he or she has taken the oath of office and the oath of allegiance and has filed a notarized copy of those oaths with the town clerk. The Secretary of State provides copies of these oath forms to every newly elected justice. 4 V.S.A. § 491. (In January we will be mailing JP Handbooks and oath forms to newly elected Justices. The guide and forms can also be obtained from our website www.sec.state.vt.us.) 10. Governor Appoints To Fill JP Vacancies. The Governor may appoint a successor whenever a vacancy occurs in the office of justice of the peace. A vacancy can occur by resignation, death, and insanity. A vacancy can also occurs when the JP moves to another state. Moving to another Vermont town in Vermont does not create a vacancy. In most cases, however, a justice will resign when he or she leaves town. Governors usually appoint a member of the party of the former justice of the peace to fill the vacancy - although not always the person recommended by the party. 17 V.S.A. § 2623. The duties of justices of the peace fall into four categories of responsibilities: Elections.Justices of the peace are members of the board of civil authority (BCA). The BCA is responsible for adding and removing names from the voter checklist, and members of the BCA serve as election officials at town or statewide elections. Justices also are responsible for delivering absentee ballots to voters at election time. Tax Abatement and Appeals.Justices of the peace sit as members of the town board for abatement of taxes to determine whether a taxpayer's tax obligation should be forgiven under certain circumstances. Justices of the peace also serve an important role in the town's tax appeal process. As a member of the board of civil authority, justices sit to hear and decided appeals when citizens do not agree with the final decision of the listers. Marriages and Civil Unions.Justices of the peace may also solemnize marriages in Vermont and may certify civil unions. Oaths and Notary. Justice of the peace may also administer oaths in all cases where an oath is required, unless the law makes a different provision. A justice of the peace is a notary public ex officio and has all the acknowledgment powers of a notary public. 11. Towns May Appropriate Money For Social Service Agencies That Serve The communities. 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). 12. Selectboard Can Place Request On Ballot On Its Own Motion Or Agency Can Submit A Petition. 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 40^th day before the date of the meeting. 17 V.S.A. § 2642. Or, the selectboard may, on its own motion, include the appropriation request on the warning. 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. Other selectboards have established deadlines for agency requests along with required participation in a committee review process. In either situations, 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. 13. Petition To Fund Social Service Agencies Can Request Funding For More Than One Agency. Social service agencies can join together in circulating a petition signed by 5% of the legal voters to ask to have an article or several articles placed on the warning for town meeting. However, if using a joint petition we suggest that each agency present a separate Article of the petition so that the votes for each agency will be taken separately at town meeting. 14. Majority of Quorum Must Approve Motion For It To Pass. A Selectboard must have a majority of the full board vote in favor of a motion in order to pass the motion even if some members of the board are absent or have recused themselves. (1 V.S.A.§172). For example, if you have a five-member selectboard, at least 3 members must vote in favor of a motion for it to pass. If only 3 members are present and voting, then all three members must vote in favor of the motion in order to take action. 15. School Boards Need Majority Of Those Present To Pass Motion. School boards operate under a special statute, 16 V.S.A. §554, that changes the general rule for board voting so that a School board needs a quorum (majority of the board) to be present, but then only requires the majority of those present to vote in favor of a motion for the motion to pass. For example, on a union high school board composed of 15 total members, if only 9 members are present at a meeting, only five members need to vote in favor of a motion for it to pass. 16. Tax Sale Is Not The Only Way To Collect Delinquent Taxes. In one town no one bid on a parcel of delinquent tax property. The town was also not interested in purchasing this property so the Delinquent Tax Collector wanted to know if she had any other options. Tax sale property is only one method of collecting delinquent taxes. 32 V.S.A. § 5251. In the alternative, the collector could take a variety of steps to recover the taxes: Foreclosure: A foreclosure action is a legal action brought in superior court to allow personal property (and real property, if there is insufficient personal property) to be attached and sold to satisfy the debt to the town. This action can only be brought if the taxes remain unpaid for two years or longer, up to 15 years. 32 V.S.A. § 5061. Distraint: Distraint is the seizure of personal property to enforce payment of taxes. The property can be held and then sold if payments of the taxes are not made. 32 V.S.A. § 5161. Action at Law: An action at law is a collection action brought in superior court which can permit you to attach property or garnish wages. An action at law may also be brought in small claims court. 32 V.S.A. § 5221. 17. Town Should Not Have Policy Of Bidding At All Tax Sales. One town made the mistake of adopting a policy of bidding at all tax sales in the amount of taxes, penalties and interest due. 32 V.S.A. § 5259. This policy resulted in the purchase of a mobile home of no value, which cost the town money to remove. The best policy is to have the delinquent tax collector describe, in advance of the sale, each parcel to be sold so that the selectboard can decide on a case by case basis whether it is in the interest of the town to bid on the property. 18. Tax Sale May Include Water And Sewer Delinquencies. According to 24 V.S.A. §§ 3504, 3612 delinquent water and sewer charges can be collected in the same manner as delinquent property taxes. This means that when person is delinquent in both taxes and water and sewer charges all of these delinquencies may be combined and collected together. Of course, the collector should set each delinquency out separately in the notice of delinquency that is sent to the taxpayer so they know the basis of each delinquency. 19. When Tax Bill Is Returned To The Town Because Of Town’s Error No Penalty Or Interest Should Be Charged. In one town a tax bill was returned to the town because of the town’s error in addressing the envelope. In this case it would be unfair to charge the landowner interest and penalties for his or her late payment. The town should re-send the bill, giving thirty days to make payment. Any bookkeeping problems can be cleared up by the board of abatement. (24 V.S.A. § 1534(a)(4).) 20. A Private Road Will Not Ordinarily Create A Subdivision. The existence of a right of way or private driveway through a parcel will not automatically create a subdivision of that parcel. The court will treat the issue on a case by case basis. It will look at whether the two neighboring parcels can be developed as a single lot. Generally the court will find a "subdivision" exists when a town or state highway bisects the lot. It is not so clear cut when it is a private right of way that bisects the property, and the court routinely finds that no subdivision exists. See Wilcox v. Village of Manchester, 159 Vt. 193 (1992). 21. Selectboard Oversee Personnel – Including The Zoning Administrator. The issue of who, if anyone, supervises the zoning administrator is often confusing because both the planning commission and selectboard have some authority over the zoning administrator. 24 V.S.A. § 1121 (legislative body oversees town employees); 24 V.S.A. § 4324 (planning commission administers the bylaws); 24 V.S.A. § 4442 (administrator appointed by the planning commission with the approval of the selectboard and removed by the selectboard after consulting with the planning commission.) Because the zoning administrator is governed by the personnel policies of the town and the ultimate hiring/firing authority is the selectboard it is the selectboard that has the authority to oversee the administrator – although this role might be delegated to a supervisor. In addition, there are some duties that are required by statute. For example, the zoning administrator may not exercise discretion, but must strictly enforce zoning bylaws. This means that a Court would likely not permit a supervisor to fire a zoning administrator who, against orders, insists on enforcing the bylaws. 22. Vermonters Who Leave The Country May Remain On The Checklist Where They Last Resided. The law permits individuals who move abroad to retain their United States citizenship and continue to vote in the place they were last registered. It is not unusual for the checklist to continue to list them at their last address, even though others may have moved into the home and are registered to vote there. 17 V.S.A. § 2122 provides in pertinent part " a person shall not gain or lose a residence . . . while living outside the United States." 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 only and should not replace the advice of legal counsel.
Holiday Displays on Town Property
Get ready for the holidays this year by learning what rules apply to setting up holiday displays in your community. This is a summary of the first amendment rules that apply to holiday displays on town property. The town may not treat a religious group differently than a non-religious group. The town may ban all displays on public property – however, if non-religious groups are permitted to use the public property for displays (for example, 4-H club displays), religious groups may erect a holiday display on the public property. In a leading First Amendment case, the Supreme Court held that a private group could erect a cross in a public park during the holiday season. Capitol Square Review and Advisory Board v. Pinette, 515 U.S. 753 (1995). Key to the Court's decision were the following facts: 1) the public park in question had historically been open to the public for a variety of expressive activities; 2) the group erecting the cross had requested permission through the same application process and on the same terms required of other private groups; and 3) the group planned to accompany the cross with a sign disclaiming any government sponsorship or endorsement. See also Elewski v. City of Syracuse, 123 F.3d 51 (2d Cir. 1997)(the court upheld the constitutionality of a privately erected menorah in a public square. A sign posted near the menorah indicated that a private group had sponsored the display.) Town May Erect "Secular" Holiday Displays So Long As They Do Not Endorse A Particular Religion. While the safest bet is to include only secular symbols in your holiday displays the United States Supreme Court has held that religious displays such as nativity scenes and menorahs are acceptable depending on the setting of the display. Lynch v. Donnelly, 465 U.S. 668 (1984); County of Allegheny v. ACLU, 492 U.S. 573 (1989)(The setting of the displays in question was crucial to the varying results in these cases, the critical factor being whether the overall effect of the display was to emphasize the religious nature of the symbols, or whether instead the emphasis was primarily secular.) Happy Holidays!