Deborah L. Markowitz
Secretary of State

3. Board Should Stick To Agenda Of Special Meeting. One town asked whether they could include on a special meeting agenda an item that would allow them to "transact any other lawful business." We believe that it is best practice to stick to a specific agenda and avoid open ended agenda items for special meetings of a board. 1 V.S.A. § 312(b)(2) of the open meeting law provides, in part, that: "the time, place and purpose of a special meeting" shall be announced . . .." A special meeting (as opposed to a regular meeting) is designed to allow a board to respond to particular issues between regular meetings. The special requirements of stating the purpose of the meeting is designed to put the press and public on notice about what special is going to be discussed and decided. The general language - "transacting any lawful business"- circumvents this intent. Note that until a court rules on this issue it remains an open question whether "transacting any other lawful business" is a permissible stated "purpose" of a special meeting.

4. Committees Appointed By Public Bodies Must Comply With The Open Meeting Law Including This Warning Of Special Meetings. 1 V.S.A § 310 (3) provides that " 'public body' means any board, council or commission of the state or one or more of its political subdivisions, any board, council or commission of any agency, authority or instrumentality of the state or one or more of its political subdivisions, or any committee of any of the foregoing boards, councils or commissions, except that 'public body' does not include councils or similar groups established by the governor for the sole purpose of advising the governor with respect to policy."

5. Town Party May Receive Free Copy of The Checklist. Vermont law provides that 30 days before an election, one copy of the voter checklist must be made available, on request, without charge to the chair of each political party in the town. See 17 V.S.A.§2141. All other organizations, candidates or individuals can be charged actual cost for a copy of the checklist.

6. Voter Must Apply To Get On Checklist By Noon, The 2nd Saturday Before an Election In Order To Vote. Applications to the Checklist (Voter Registration applications) must be received by the Town Clerk where the applicant has his or her legal address on or before Noon , August 31, 2002 in order to be able to vote in the 2002 Primary Election on September 10, 2002. 17 V.S.A.§2144(a) and (b). If you are assisting in a voter registration drive, please make certain that all applications are in the offices of the Town Clerks before the deadline.

7. Overdue Penalty Does Not Apply Until Final Installment Is Unpaid. In towns that have voted to collect taxes by installment, (unless a town has a charter provision that provides otherwise,) the delinquent tax collector cannot charge the 8% penalty until taxes become delinquent after the final payment of the year becomes due. 32 V.S.A. §1674(b). Several Chittenden county towns have charters that allow the Town to collect the 8% penalty in addition to interest on each installment. If your town does not have a charter, the town can assess interest on each late installment but cannot collect the 8% penalty until the final installment payment for the year is due. 32 V.S.A. § 4873.

8. The 8% Penalty For A Delinquent Tax Payment Can Only Be Charged Or Assessed Once On The Full Amount That Is Delinquent. The law permits the delinquent tax collector to charge the 8% penalty only one time on overdue taxes. Only the interest per month charge continues to be added each month on the remaining balance of the taxes until the taxes and interest are paid in full.

9. Delinquent Tax Collector may Accept Partial Payment. If a collector permits partial payment of overdue taxes, the collector may apply the payment to his or her 8% penalty, then the interest due, and then to the taxes. Some collectors apply the payment proportionately to tax, penalty and interest. If a taxpayer requests the payment be used only to pay principal, the collector may reject the payment. (Note that once the tax is paid, and no additional interest can accrue, there is a disincentive to quickly pay the interest and penalty owed to the town.) The acceptance of full or partial payment of overdue taxes by a town official will not preclude the town from collecting any unpaid balance of taxes and any interest and collection fees accruing to the town, whether relating to the collected or uncollected portion of taxes. 32 V.S.A. §5142.

10. Treasurer May Accept Payment Of Delinquent Taxes Before Warrant is Issued to Collector. In one town the delinquent tax collector was on vacation when a taxpayer wanted to pay his or her delinquent taxes and the individual was concerned that if he waited for the collector to return would accrue additional interest. The law does not allow another official to accept the payment for the collector (although the collector might delegate this while he or she is out of town.) The law only allows the treasurer to accept, on behalf of the collector of delinquent taxes, payment of overdue taxes tendered after the due date, but before the warrant is issued to the delinquent tax collector to allow him or her to collect the taxes. This payment may only be accepted if it is accompanied by the collection fee and any interest. Taxes, fees and interest collected under this subsection must be turned over to the collector of delinquent taxes when the warrant is issued. 32 V.S.A. §5142.

11. Tax Sale Property Must Be Sold For Taxes, Interest and Penalty Due. The minimum acceptable bid at a tax sale is for the taxes, interest and penalty due. 32 V.S.A. § 5254. If a property cannot be sold because it is not worth the amount of the overdue taxes then the board of abatement should abate a portion of the overdue taxes.

12. Taxes Must Be Received By Due Date. Vermont statutes state that a tax payment must be paid on or before the due date. 32 V.S.A. § 4772, 4773. Some towns prefer to permit taxes to be postmarked by the due date. We don’t believe this is best practice because mail service is sometimes unpredictable, and it leaves the treasurer or collector in a position of uncertainty. The law is clear that taxpayers have the responsibility to get the tax payment to the town on or before the due date. If a town prefers to use the postmark, the town should either include such a provision in its charter, or ask the legislature to amend the law to allow a town to accept a postmark if so voted at town meeting.

13. Sunday Taxes Due Date Shifts To Monday. When the tax due date falls on a Sunday the law provides that the due date will be considered the following Monday. 32 V.S.A. § 3004. The law does not specifically extend this consideration to Saturdays and holidays, but we believe the collector of taxes (or treasurer, if the treasurer collects the taxes,) has the authority to push the due date forward in these situations. We always advise the collector to indicate on the tax bill what his or her policy is so that taxpayers are not caught unawares.

14. "Extraordinary" or "super" majority voting for amendments to municipal zoning bylaws No Longer Allowed. After July 1, 2002, zoning amendments must be passed by a simple majority of the legislative body for routine adoption in urban municipalities and by plurality vote of those present and voting at a town meeting or special town meeting in rural municipalities. 24 V.S.A. §4404(c) and (e). The law that permitted voters to petition for a supermajority vote on bylaws has been repealed by the legislature.

15. Once Public Hearing Is Noticed Zoning Applications Are Reviewed Under Proposed Rules. Once the public notice for a first public hearing by the legislative body on a proposed amendment of a zoning bylaw has been made, all permit applications that fall under the proposed changes must be reviewed using the proposed bylaws. The law provides that the administrative officer, for a period of 150 days following the public hearing notice, must review any new application filed after the date of the notice under the proposed bylaw or amendment and applicable, existing bylaws and ordinances. If the new bylaw or amendment has not been adopted by the conclusion of the 150-day period, or if the proposed bylaw or amendment is rejected, then the permit will be reviewed again – using the existing bylaws and ordinances. An application that has been denied under a proposed bylaw or amendment that has been rejected, or that has not been adopted within the 150-day period, must be reviewed again, at no cost, under the existing bylaws and ordinances, upon request of the applicant. 24 V.S.A.§ 4443.

16. Listers Should Make Appointments to View Properties. It is best practice for listers to call property owners to set appointments to look at property to complete listers cards for reappraisals. If listers show up unannounced it is reasonable for the property owner to say that it is not a convenient time and set an appointment for a mutually convenient future date. If the property owner refuses entry to the property at any time, then the listers must do their best appraisal without entering the property. However, if a property owner subsequently files an appeal of his listed value, the appeal must be considered withdrawn by the property owner if the property owner refuses to allow the BCA to inspect the property to determine its fair market value. 32 V.S.A.§4404(c).

17. BCA Member Must Recuse Himself If He Has A Personal Or Financial Interest. In general the law only requires recusal of a board member if he or she has a "personal or financial" interest in the outcome. 12 V.S.A. § 61. This means that if there is personal animosity between the board member and the appellant it may be sufficient to require recusal if it rises to the level of a "personal interest". If a person charges a board member with conflict it is up to the board member to decide whether to recuse him or herself. Unless the town has adopted a conflict of interest ordinance or policy no one can force a recusal. 24 V.S.A. § 2291 (20).

18. 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. 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.

19. Clerk Is Not Required To Search And Copy. The public records law only requires the custodian of the records to make the records available for "public inspection" and copying (if you have copy equipment) during your regular office hours. The custodian may, as a courtesy, collect, copy and send the requested records, but this is a courtesy only - it is not required by law.

20. 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.

21. 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. However, political candidates cannot hold raffles or lotteries.

22. 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.

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.