Judy Hansen was known for her professionalism, for her attention to detail and for her warm and easy way with people. She was a wonderful ambassador for her community and she served as a role model and friend to town clerks across the state. Judy devoted a significant part of her life to working for her community and the State of Vermont. She worked for many years as a schoolteacher and then served as town clerk and on the schoolboard, as well as on other community boards. She was actively involved in the Vermont Municipal Clerk’s and Treasurer’s Association and she represented the Association in the Vermont legislature.

Bill MacLeay was a longtime selectman for the town of Colchester, serving as chairman for nine years. Bill was known for his enthusiastic interest in people, and his concern with ensuring that the processes of government were fair and truly served the public. Not only was Bill on the selectboard for many years but he devoted his free time to the Boy Scouts – serving at one time as the president of the Green Mountain Council of the Boy Scouts of America. Bill also worked on the development of local bike trails and the Causeway Park. Bill served our country in Vietnam as an officer in the Air Force and continued to serve as a liaison officer for the Air Force Academy.

Both Judy and Bill had in common an uncommon commitment to their communities. Each of them dedicated a significant part of their lives to making their communities and the State of Vermont a better place. Let us honor their memories by continuing the work they began. They will both be sorely missed!

1. Completed and Returned Early Vote Ballot May Not Be Withdrawn. Vermont law provides that "once an early voter absentee ballot has been returned to the clerk in the sealed envelope with the signed certificate, it shall be stored in a secure place and shall not be returned to the voter for any reason." It is just as if the ballot had been deposited in the voted ballot box on Election Day. 17 V.S.A. §2543.

2. Early Voter May Return Spoiled Ballot For New One. If an early voter discovers that he has made a mistake and spoiled his ballots prior to returning the ballots to the clerk, he can return all of the spoiled ballots and envelopes to the Town Clerk and request another set of ballots to vote. 17 V.S.A §2568

3. No Limit On Who May Return Early Voter Ballot. Vermont law strictly limits who can request an absentee ballot for a voter, but it permits any person the voter wishes to return a voted ballot. This means that even a candidate or campaign worker for a particular campaign may return voted absentee ballots. 17 V.S.A. § 2543.

4. Sick Voter May Not Have Ballot Delivered Unless Request Was Made Prior To Election Day. In order for a voter to have a ballot delivered to a voter on Election Day the voter must be either sick or disabled, and the request for ballot delivery must have been made by 5:00 or the close of the Clerk’s office on the day before Election Day. 17 V.S.A. § 2531. This means that a person who falls ill on election day will be out of luck unless they can make it to the polls, or unless they had already received an absentee or early voting ballot.

5. Ballots Are Delivered By Politically Balanced Pairs. Vermont law requires that absentee ballots be delivered to disabled or sick voters by politically balanced pairs of Justices of the Peace or other legal voters designated by the BCA. No pair shall consist of two justices from the same political party. The non-Justices are picked from lists of registered voters submitted by the chairs of the town committees of political parties, and from among registered voters who in written application to the board state that they are not affiliated with any political party. No candidate or spouse, parent, or child of a candidate is eligible to deliver absentee ballots unless the candidate is running unopposed. 17 V.S.A. § 2538.

6. Towns Should Set Reasonable rules for Poll-Watchers. Poll-Watchers generally come to the polls to see who has come in to vote (they have their own checklist and take notes as people check in) so that at the end of the day candidates can be sure to get their voters to the polls. Sometimes poll-watchers can distract election workers which can lead to errors. Consequently we suggest that the Presiding Officer set reasonable rules for poll watchers. (These should be told or be given in writing to each poll watcher so they know what is expected of them.) Some suggested rules include:

No cell phones in the Polling Place (for all election workers – not just poll watchers)
No talking to voters
No politicking in the polling place
No talking to election workers when voters are present
Sit behind guardrail or tape-marks on floor

No one has the right to see the entrance checklist during the election except the election workers, except in towns with less than 500 voters on the checklist when a written request has been made at least 12 hours before the polls open. We also suggest that the Presiding Officer instruct the election workers to speak loud enough for the poll watchers to hear them, and to instruct the poll watchers to let the Presiding Officer know as soon as there is a problem with audibility.

7. No Petition Vote On Grant Application. The selectboard has the authority to act for the town when submitting applications for grants for the town. The voters cannot force the board to submit (or not submit) an application by petition and vote. When an application is controversial it is advisable for the Selectboard to hold a public hearing or to provide time during regularly scheduled selectboard meeting for public comment. It may even ask those present for a "straw vote" on the issue to help advise the board as it decides whether to go forward.

8. Minutes Of A Meeting Of A Public Body Are Not Transcript. The law requires minutes of meetings to simply record the official action of a meeting. We believe that it is best practice not to attempt to create a transcript of the meeting or a complete restatement of all public discussion at the meeting. Simply state each motion or resolution with the action taken. Too much detail can cause citizens and/or board members to become distracted and spend more time at meetings debating the accuracy of the "transcriptions" and dialogue recorded in minutes of past meetings, than on the new action items. 1 V.S.A. § 312.

9. Non-Profit Organization Serving Town Can Keep Finances Private. No law requires a private business or non-profit to open its financial books for public inspection. It would be reasonable, however, for the selectboard to ask a nonprofit that serves the town to justify it request for an increase in payment from the town. As part of that justification the board may ask to see the financial books of the organization.

10. Non-Profit Organizations Can Hold Raffles and Lotteries. Vermont law generally prohibits gambling but allows nonprofit organizations, including municipalities to organize and execute games of chance for the purpose of raising funds for civic undertakings. 32 V.S.A. § 2143 and 10201(5). Check the law for specific prohibitions (ex. awarding alcohol, using gambling machines, holding too many casino nights in one year, etc . . .) Note that political parties may also organize and execute games of chance to support their activities.

11. Only Adults May Organize Or Execute A Game Of Chance. A nonprofit organization that is organizing a lottery or casino night must be careful not to allow any person who is under 18 to help out in the gambling activities. A person who is under age may work performing services at the event so long as they are not related to the execution of the game of chance.

12. Non Residents May Participate In Public Meetings. The rule that only voters can speak unless the assembly votes to allow the person to participate applies only to the Annual and Special meetings of the town. The open meeting law provides that members of the public (not just voters) have the right to speak on public issues at all meetings of public bodies. 1 V.S.A. § 312. Note that the moderator or chair of the meeting can create reasonable rules (time and speaking limits) to ensure everyone who wants to has an opportunity to speak.

13. Fence viewers May Still Have Role. The role of Vermont’s fence viewers is largely honorary these days – but on occasion, upon request of landowners, the selectboard will call on the fence viewers to examine a fence line between adjoining properties to determine what portion of the fence must be made, repaired or maintained by each party. Fence viewers may also be asked to determine where a fence must be placed when a fence cannot be placed squarely on a property line. Note, however, that fence viewers may not determine a boundary line or ownership of land, and only the selectboard can order a fence to be built where none exists. 24 V.S.A. § 3802. See Camp v. Camp, 59 Vt. 667 (1887); Shaw v. Gilfillan, 22 Vt. 565 (1850).

14. Fence Viewers Should Meet As Soon As Possible After Request Is Made. When a request is made for assistance the fence viewers should meet as soon as reasonably possible. Although there are no statutory time frames for acting, the law requires the fence viewers to give notice to all interested parties, or their tenants or agents, of the time when they will examine the fence or line between adjoining lands. This gives all parties an opportunity to participate and provide their input before a decision is made. 24 V.S.A. § 3811. Note that by law a fence viewer may be paid six dollars ($6) for each day’s work by the complaining landowner or by both landowners if more than one asks for the Fence Viewers services.

15. Decisions Of Fence Viewers Must Be Recorded. Vermont law requires decisions of the Fence Viewers to be certified and recorded with the Town Clerk. This ensures that the decision is valid against the parties and their heirs and assigns. 24 V.S.A. § 3811.

16. Charter Amendment Can Be Proposed By Petition Or By Selectboard. A charter amendment can be proposed at either an annual or special meeting. It can be proposed by the Selectboard or requested by petition of 5% of voters. However, there are a number of steps, including public hearings, that have to be followed before the proposed charter can be voted on, and for a charter to be adopted it needs the approval of the Legislature. 17 V.S.A. § 2645.

17. There is no recall of elected officials. There is no law that authorizes either the voters or the selectboard to remove elected public officials under any circumstances. This means that even if an official proves incompetent or even dangerous to the public, there is no recourse except to fail to reelect them when their term expires. Note, however, that some municipal charters may contain provisions for recall of elected officials. In addition, in certain extreme cases a bonded official might lose his or her office if his or her bond is revoked. See 24 V.S.A. § 832.

18. Selectboard May Generally Remove Appointed Officials. The selectboard may generally remove an official that it has appointed to a position. However, there are many statutes that require finding of "good cause" or public notice and hearings before an appointed official may be removed by the board. For example, the selectboard may remove the Town Manager by a majority vote of the board; but only for "cause". 24 V.S.A. § 1233. The selectboard may also remove appointed road or water commissioners for "just cause" and after "due notice and hearing." 17 V.S.A. § 2651. An appointed member of the planning commission may be removed "at any time by unanimous vote," 24 V.S.A. § 4323(a), but a member of the zoning board may be removed for cause, only "upon written charges" and after a hearing. 24 V.S.A. § 4461. A building inspector may be removed by the selectboard by majority vote, 24 V.S.A. § 3102, and the zoning administrator may be removed, for cause, after consultation with the planning commission. 24 V.S.A. § 4442.

19. Zoning Board Must Rewarn Hearing When Date Is Changed, Or Open Hearing And Adjourn To New Date. When a Zoning Board wants to change the date of a warned hearing on an application or appeal it can do so in one of two ways. It can simply cancel the hearing (notifying people when they come - and the known parties) and then re-warn the hearing for the new date. All public notice requirements must be followed if the hearing is rescheduled in this way. In the alternative, the board can open the hearing and then adjourn it to a date certain. The law would permit the new hearing to be held without additional warning, although we always suggest that the adjourned date be publicized. 1 V.S.A. § 312. 24 V.S.A. § 4447.

20. Selectboard Sets Fees For Zoning Applications Appeals. It is up to the selectboard to set the fees for zoning applications and appeals. 24 V.S.A. § 4446. The fees must be reasonably related to the cost of running the zoning/planning office in the town and cannot be used to subsidize other parts of municipal government. Pollack v. Burlington, 158 Vt 650 (1992). The selectboard can devise its own reasonable rules, so long as they are consistently applied, to permit a refund or waiver of fees in some cases. For example a board might permit a refund of appeal fees to a person who wins on an appeal of an action of the zoning administrator, or may waive fees when an applicant is asked to resubmit an application.

21. Court Is Loath To Find Deemed Approval In Zoning Cases. A series of cases before the Vermont Supreme Court has defined when a decision of a zoning or planning board will be considered final for the purpose of preventing deemed approval, and for the purpose of determining when an appeal to Environmental Court might be appropriate. The rules are as follows:

22. Failure To Notify Appellant of Decision Will Not Result In Deemed Approval. 24 V.S.A. § 4470 requires the zoning board of adjustment or development review board to notify the appellant of the board's decision by sending him or her the board's written decision. According to statute, this notice is required: the board "shall within that [45 day] period send to the appellant, by certified mail, a copy of the decision." However, recent Vermont Supreme Court precedent has interpreted this statutory provision and has made it clear that, although the board must notify the appellant of the decision in the manner described by statute, an inadvertent failure to do so will not result in a deemed approval so long as a written decision has been made within the 45 day period, even though the result might be that the appellant has no actual notice of the decision until after the 45 day period has passed. Leo Motors, Inc. v. Town of Manchester, 158 Vt. 561 (1992). In addition, if the applicant has actual notice of the decision within the 45-day period, there will be no deemed approval even if the decision is never reduced to writing. See also Town of Hinesburg v. Dunkling, 167 Vt. 514 (1998).

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.

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