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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 4 Number 2 |
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Redstone Building |
We go to the dentist twice a year for a checkup - not because we have a known problem, but because we want to know if there is one we haven't yet noticed. We provide regular checkups for our cars, our furnaces and our dogs for the same reason. So why not the town? It does not make sense to wait until the newspapers or angry citizens tell you what you haven't done or have done badly. What is needed is a good, thorough once-over, top-to-bottom review of how things are done, to find what needs to be replaced, what needs more attention, what ought to be watched next time. Most towns won't need the municipal equivalent of gum surgery or a root canal, but if you did wouldn't you want to know about it now? To help you with your town check-up we have recently published "A Tune Up For Towns." A Tune Up For Towns provides a checklist for town officials to look at to see whether the town is complying with state law. Of course, the list is not exhaustive because the law does not stay the same for long. But it's great place to start. Call us for a copy of A Tune Up For Towns – and get ready for your municipal check-up! |
Message from the
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Table of Contents | Past Issues of Opinions | Secretary of State's Homepage
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A Voice from the Past
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FIRST RECORDS
They are yellowed with age. The pages are worn, with stains on the corners, moistened by a thousand licked index fingers and dried by the passage of time. The black ink seems to have burned itself into the paper.
They are the municipal version of the Dead Sea scrolls. They are the un-text of town life at its conception, and they contain wonderful things.
That a town’s oldest records have survived two centuries and more is a testament to the endurance of the town itself. Their home in a vault is a relatively recent development. For years they were kept in the home of the Town Clerk. They felt the entire range of temperatures and humidities, season after season. They were dropped on the floor, allowed to lay out in the sun so that the open leaves faded, soaked by rain or a spilled cup of coffee or an ink bottle.
Some have not survived. Some were burned when the Clerk’s house caught fire. The first volume of town records in South Hero is missing, said to have been destroyed by an early town officer who feared the book contained something bad about him. The first two volumes of town meeting records in Barnard disappeared for many years, only to be returned to the town office after someone discovered them in an attic or a closet.
The longevity of these early records is the first miracle, but the story they tell is even more fascinating. "Voted to buy a town book" appears in the earliest town meeting records, as one of the first actions of the voters. Paper was rare and books, even blank books, were dear. Every page was used. The first book often contained a variety of records, with town meetings in the front, vital records at the back and those delightful miscellaneous records in the middle, including the markings farmers used to identify their cattle (usually involving various cuts on the ear) and the statements of religious scruples used to save some residents from having to pay taxes to support the community church.
Like mitosis, the record-keeping soon diverged, with land records in one series, vital records in another, town meetings in a third, and if the town is really fortunate, road records in a fourth.
The handwriting is often challenging. The long s, unfamiliar to us today, that looks like an f without the crossbar, is a common feature. Numbers, particular the 4s, 5s and 8s, are hard to read. And because the process of keeping records was so new (without the benefit of clerk training seminars, handbooks or newsletters), the words are often charming.
In Barnard, for instance, the first clerk described discontinued highways as roads that were "nulled," "flung up" or "relinquished." A town meeting record announces that the following list of people were "approbated" to take the Freemen’s Oath, meaning the "Authority" had approved them as voters, a process that was undertaken at every meeting, as checklists weren’t common for another half century. The warning would include this important question: "To see whether swine should be allowed to run at large in town during what season?"
Clerks have been very good at ensuring these first records are preserved. An even earlier set of records—the Proprietors’ Books—are sometimes overlooked in this process, and allowed to remain in their natural state, perhaps because they are not appreciated. In those books you find the division of the town into lots, and the first linking of lots with particular owners. As every title originates in the decisions made in this book, it too should be the target of a preservation budget, before another land record book is done.
Reading the earliest town records takes time and patience. Sometimes you need to photocopy a page with the contrast button taken to the limit to recover the faded writing. Sometimes you need to look at the writing a long time to understand what is written. But there are also great rewards to be found in these books. We must cherish these records. It is amazing that towns got off on such a sound footing without good models or forms, each essentially an island from the rest of the state, yet so certain of what they needed to do—electing officers, cutting new highways, regulating the movement of swine and other animals—and most important keeping good records of what was done. We are their legacy, and they are our foundation.
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While the town records start with Book 1, Page 1, and continue from one end of the vault to the other, from the first stirring of organized life in the town to the present day, it is clear that we live in bloated times. Take this test. Go into the vault. Pick a year, say 1950, and locate the book that contains the records from that year. Now look back at the number of volumes that mark the beginnings of the town, and then look forward to the most recent book. We have, in 50 or 60 years, used three or four times as many volumes in that period than in the previous 150 years. Yes, it is partly because of an increase in subdivisions and refinancing, but it also reflects the frenetic movement of people in and out of different housing in recent times, where previously people purchased a farm and lived out their lives on that land. Times (and people) have changed, but the records go on forever
Table of Contents | Past Issues of Opinions | Secretary of State's Homepage
Opinions of
Opinions
Opinions
Volume 4 Number 2 February 2002
1. Reserve Funds May Generally Be Used For Purpose of Fund Without New Vote. When the electorate has voted at a Town Meeting to establish a reserve fund, such as a Highway Capital Reserve Fund, the selectboard is authorized by statute to expend those funds for purchase of capital assets for the maintenance and improvement of highways and the selectboard does not need another article to approve each expenditure so long as the expenditure is for the purposes for which the fund was established. 24 V.S.A. §2804. If the selectboard wants to use the funds for some other purpose, then the board needs to warn an article for voter approval to use the funds for a different purpose.
2. Paper Ballot Election Requires Majority Vote. When local officers are elected by paper ballot during the traditional open floor town meeting, a majority of all votes cast for any office is required for an election. 17 V.S.A. §2660(b). The law requires that selectboards, listers and auditors must be elected "by ballot". If a majority is not achieved on the first ballot, voting continues. If no person has obtained a majority by the end of the third vote, the moderator shall announce that the candidate receiving the lowest number of votes in the last vote and any succeeding vote shall no longer be a candidate, and the voting continues until a candidate receives a majority.
3. Australian Ballot Elections Allow Officers To Be Elected By Plurality. When local officers are elected by Australian ballot, the person receiving the most votes shall be declared elected to that office. A plurality is all that is required. 17 V.S.A. §2683(c).
4. Write in Candidate Needs At Least 30 Votes Or 1% To Be Elected. The law sets a minimum threshold for a person seeking election on a write-in campaign. If the person receiving the most votes is a write-in candidate in an Australian ballot election, the person must have received at least 30 votes OR the votes of 1% of the registered voters, whichever is less. 17 V.S.A. §2683(c).
5. Non-voters May Only Speak At Town Meeting With Permission of the Assembly. Only legal voters can speak at Town Meeting unless there has been a motion to suspend the rules and permit non-voters to address the group and the motion has passed by 2/3 of the voters. It is a good practice when making such a motion to include some parameters in the motion, such as non-voters may speak to an issue only once, for a time not to exceed five minutes, etc.
6. Moderator May Reject Amendment If Not Germane. The moderator can only allow amendments to articles that are reasonably related to the article as warned. The purpose of the Town Meeting warning is to enable voters to know what issues are going to be decided. Because no decisions can be made on issues that were not warned it would not be a valid act of the town to amend an article so that it is no longer relevant or germane to the original Article. See Kaeser v. Town of Starksboro, 116 Vt 251 (1950)
6. Voters May Challenge Ruling of Moderator. During a traditional floor voting town meeting, any voter can challenge any ruling on points of order by the moderator by requesting that the issue be put to the vote of the assembled voters. Many wise moderators will encourage voters to challenge a ruling when they are in doubt by prefacing the ruling such as "The chair is doubtful, but will rule that …." This encourages a voter to rise to challenge. Roberts Rules provides that any voter can rise to ask that the ruling be voted upon by the voters present. It is difficult for any moderator to know every rule and anticipate every type of motion that may be presented. Roberts rules thus allows the majority of those voters present to decide what is fair and just under the circumstances.
7. Voters May Limit Debate By 2/3 Vote. In order to limit debate on a motion a vote of two-thirds is required. A motion to limit debate takes precedence over all debatable motions and can be applied to any or all pending debatable motions. Of course, it is out of order when another voter has the floor. The motion itself must be seconded and is not debatable. Simply moving the previous question can also close debate. This also requires a two-thirds vote.
8. Absentee Ballots Must Be Available 20 Days Before Town Meeting. Towns that hold Australian Ballot voting must make Early and Absentee ballots available at least twenty days prior to Town Meeting. 17 V.S.A. § 2681a.
9. Political Party Designation For Local Office Rare – But Possible. Few communities include political party designations for local offices. In most cases it is done because the Municipal Charter provides for such listing. However, the law permits political party designations if the town has voted to provide for such listings, or in the absence of such a vote, if the legislative body votes to permit political party designations.
10. Electorate Sets Date Of Annual Meeting. The school board cannot change the date of the annual school meeting on its own motion. Rather, it must be voted by the electorate. The voters must authorize changing the date of an annual school district meeting by voting at an annual or special meeting on an article: "Shall the ______________Town school district hold its annual meeting on ___________." 16 V.S.A.§422.
11. Fees Must Be Disclosed As Part Of Audit Report. Town Clerks are required to disclose to the public the total amount of fees received as part of his or her compensation for the preceding year within 30 days after the end of the town’s fiscal year. 24 V.S.A. §1179. The law does not state how the clerk shall disclose the fees, but those fees must be included in the report of the Auditors.
12. Ex Officio Notaries Do Not Charge Fees. Town Clerks or other ex officio notary publics cannot charge a fee for notary public services. 32 V.S.A.§1403(b). Also, if you become a notary public ex officio, you must still file the paperwork with the county clerk (so we have your signature on file.) No fee is required. The term of an ex-officio notary public ends when he or she leaves office. If a person wishes to continue as a notary public after leaving office he or she must apply to the county clerks office and pay the required fee.
13. The selectboard is not required to provide access to a landlocked parcel. Vermont law permits an owner of a landlocked parcel to petition the Selectboard to authorize the creation of a temporary right of way for the purpose of removing lumber. 19 V.S.A. § 958. The selectboard can choose to lay out a temporary right of way, limiting the duration of the right of way and requiring the landowner to post a bond for the restoration of the property. Courts have been clear, however, that nothing can compel the selectboard to grant this permission (after all, the right of way is over another landowner’s private property.) Note that the owner of a landlocked parcel (no access to a public road) may be entitled to a "way of necessity" over the remaining lands of the common grantor or his successors in title. Traders, Inc. V. Bartholomew, 142 VT 486 (1986). The town would not be involved in determining whether a "way of necessity" exists – rather, it is a private issue between neighboring landowners that ultimately gets resolved by a court of law.
14. Audio Tapes Will Not Substitute For Minutes. Vermont’s Open Meeting Law requires minutes of meetings to be available within five working days of the meeting. 1 V.S.A. § 312(b). Audiotapes of a meeting will not substitute for these minutes. Indeed, there is a practical difference – whereas it may take a few minutes to review minutes of a meeting, it can be quite onerous to listen to the entire tape of the meeting to see what business was discussed.
15. No Minutes Are Required Of Executive Session Discussions. Vermont’s open meeting law provides that a board can choose not to take minutes of executive sessions 1 V.S.A. § 313(a). However, if a board does take minutes of executive sessions, the law is clear that those minutes may not be made public.
16. No Minutes Need To Be Taken Of Deliberative Sessions. Because deliberations of quasi-judicial boards (where a decision will be made in writing) are outside the provisions of the open meeting law, the requirements that minutes be taken of all public meetings will not apply. Rather, the written decision – with findings and conclusions should offer a full explanation of the action taken by the board and the rationale for the action.
17. Highway Right Of Way Cannot Be Lost Through Adverse Possession. Vermont law establishes that the town cannot lose its legal interest in a highway right of way by adverse possession. Adverse possession can occur when a person uses or occupies property without permission of the landowner, in a way that is open, notorious and adverse to the landowner’s interest for 15 years. 19 V.S.A. § 1102.
18. Obstructing Travel On Highway or Trail Can Be Fined. A person who obstructs a public highway or a town trail, preventing public travel, or causing injury or impeding a person traveling on the highway or trail may be fined up to $1000, plus the actual costs of repairing the damage and reasonable attorneys fees. 19 V.S.A. § 1105. Note that the law exempts logging equipment temporarily within the right of way of a trail if it is located in a ways as not to unreasonably impede passage. It also permits courts to award attorney’s fees against a town if it brings an action against someone without substantial basis.
19. Town Zoning Bylaws Cannot Diverge From Statutory Requirements. Municipal land use regulations must conform to statutory requirements that establish procedures and standards for administration, appeals and enforcement of bylaws. This means, for example, that a town may not adopt a bylaw requiring appeals from the planning commission be brought to the zoning board because it contradicts the statutory requirement that appeals from planning commission decisions be taken to environmental court. See In re Lionni, 160 Vt. 625 (1993) (municipal bylaw which allows action by majority of commissioners "present and voting" is invalid since the rule expressed in 1 V.S.A. § 172 establishes that decisions of the board must be made by concurrence of a majority of the board.) Note also that if a municipality overlooks a statutory requirement the missing language may be imposed, as a matter of law. See In re White, 155 Vt. 612 (1990) (Mandated general standards will be read into the ordinance.). This means that if a regulation fails to include a required provision the zoning board or court will interpret the bylaw as though it included the provision.
Table of Contents | Past Issues of Opinions | Secretary of State's Homepage
Vermont Emergency Management Reports
Disaster Prepared Towns
-by Dennis Smith, Chief of Policy and Planning
As Town Meeting Day fast approaches, now is the time for all local governments to think about disaster preparedness. While Vermont may be the nation’s most beautiful state, we are vulnerable to natural hazards. Late winter and early spring bring the threat of ice storms and flooding. Recent events have underscored the need to also consider our ability to manage man-made and technological hazards.
In mid January, the Governor sent each local government a letter, including a form – the Rapid Response Plan – to complete and return to Vermont Emergency Management. If your local government has not already done so, now is the time to complete this form. Communities are encouraged to work with their Regional Planning Commissions and Vermont Emergency Management on this project.
Town Meeting provides local elected officials the opportunity to let residents know that their community is disaster-ready. Announcing the completion of the Rapid Response Plan and announcing the individual who will serve as the local emergency manager are good first steps. Emergency management is not something that any one agency or level of government can be expected to address alone. Preparing for disaster requires the partnership of local, state and federal agencies. Your efforts to strengthen this partnership are essential to its success.
For more information on the Rapid Response Plan, as well as the full range of programs and resources .available through Vermont Emergency Management, please contact Robert Schell, Chief of Field Operations, at 800/347-0488. This information is also available by visiting the Vermont Emergency Management website, www.dps.state.vt.us/vem
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Getting Ready at the Polls
Town clerks should furnish presiding officers with one or two certified copies of the checklist, depending on whether the town has opted not to use an exit checklist. 17 V.S.A. § 2507.
Town clerks must also deliver sufficient quantities of the ballots to the presiding officer. 17 V.S.A. § 2479.
The presiding officer should assign specific duties to each election official, ensuring that the election officials work in pairs, with each pair containing members from different political parties if possible. 17 V.S.A. § 2562.
Opening/Closing Polls
In an Australian Ballot Election the presiding officer declares the polls open on the day of the election between 6 a.m. and 10 a.m. (the specific time is set by the board of civil authority or by the voters), and declares the polls closed at 7 p.m. 17 V.S.A § 2581.
Town meeting begins at a time designated by the legislative body, unless the town has voted a specific time at a previous meeting. 17 V.S.A. § 2655.
Public Discussion and Politicking in the Polling Place
In towns that start their annual meeting on one of the three days preceding the first Tuesday in March and use the Australian Ballot system on Tuesday, public discussions of Ballot issues and all other issues appearing in the warning, other than election of officers, is permitted at the Saturday, Sunday or Monday meeting. 17 V.S.A. § 2640(c).
Neither the warning, the notice, nor the ballot itself shall include any opinion or comment by any town body or officer or other person on any matter to be voted on. 17 V.S.A. § 2666.
In an Australian Ballot Election the presiding officer should ensure that within the building containing the polling place no campaign literature, stickers, buttons, information on write-on candidates or political materials are placed, handed out, or allowed to remain and that no candidate, election official or other person distributes election materials, solicits voters or otherwise campaigns. 17 V.S.A. § 2508.
Outside the building, the presiding officer must ensure that voters can enter and leave the polling place without interference from candidates or other citizens. 17 V.S.A. § 2508. The provisions of this section apply equally to election of candidates as to votes on public questions, including the budget, if done by Australian Ballot vote.
Maintaining Order at Town Meeting
In traditional town meeting the moderator must follow reasonable and necessary procedures to ensure that people who are not voters of the town do not vote. 17 V.S.A. § 2656.
The moderator must preserve order in the conduct of business and debate. If a person, after notice, continues to be disorderly and refuses to withdraw from the meeting, the moderator may order him
to be removed by the constable or some other person. 17 V.S.A § 2656. A person who disturbs town meeting may be fined $200 by the district court.
Remember that while Roberts Rules of Order or some other rules of procedure must be followed at town meeting, these rules have been modified by state law. For example, the assembly must not reconsider articles already voted once consideration of another article has begun; take no binding action during the "other business" portion of the meeting; allow sufficient time for voters to cast paper ballots whenever that method of voting is to be used. 17 V.S.A. §§ 2660(d); 2661(a).
Accessibility of Town Meeting
The legislative body must take reasonable measures to ensure that elderly or disabled voters may conveniently attend town meeting. Sign Language interpreters must be provided, if necessary. 17 V.S.A. § 2667 and the Americans with Disabilities Act. Town Meeting must be held in an accessible location.
The board of civil authority must take reasonable measures to ensure that disabled and elderly voters may conveniently and secretly cast their votes. If it is not possible to hold the election in an accessible location, election officials must be permitted to carry a ballot to an elderly or disabled person in order to permit that person to mark his or her ballot while in a motor vehicle adjacent to the polling place. 17 V.S.A. § 2502.
A voter who declares to the presiding officer that he or she needs assistance voting may bring a person of his or her choice into the voting booth (so long as it is not the voter's employer or union representative) or the voter can ask the presiding officer to direct to elections officials to assist the voter. Those rendering assistance may not divulge information about the choice of the voter or manner in which the vote was cast. 17 V.S.A. § 2569.
Election of Officers
In order to be elected as a write-in candidate in an Australian Ballot election when no other candidate has received a greater number of votes, a candidate must receive 30 votes or the votes of 1% of the registered voters of the town, whichever is less. 17 V.S.A. § 2682 (c).
The offices of selectboard, lister and auditor must be elected by paper ballot (unless it is done by Australian ballot). The offices of road commissioner and water commissioner, if elected, must also be elected by paper ballot. 17 V.S.A. § 2646.
When there is a single candidate, unless any voter opposes this, the town may agree to ask the clerk to cast one ballot for the candidate. 17 V.S.A. § 2660(b).
A majority of those present and voting is required to elect an officer by paper ballot(unless the vote is by Australian Ballot.) This means that if there are three candidates, none of whom receive a majority of the votes by the third ballot, you must eliminate the candidate with the least votes and repeat the procedure until someone receives a majority of the votes. 17 V.S.A. § 2660(c).
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Sunday, February 3
(Not less than 30 days before Town Meeting)
Last day for municipality to post warnings
and notice of Town Meeting. 17: V.S.A 2641 (a)
2642
Sunday, February 10
Last day for Selectboard to file with Town
Clerk annual statement of description and
Measurement of all Class 1, 2, 3 town highways,
Then in existence, including special descriptions.
19: V.S.A 305 (b)
Wednesday, February 13
(In Towns using Australian Ballot 20 days before election.)
Under direction of Town Clerk, ballots must be back from printer. 17: V.S.A 2681a (a)
Thursday, February 28
(Five days before town meeting) Treasurer must settle accounts with auditors. 24: V.S.A 1518
Looking Ahead to March
Monday, March 4
Prior to the day of election Board of
Civil Authority must appoint Assistant
Election officers for Town Meeting.
17: V.S.A 2455
Tuesday, March 5
TOWN MEETING DAY!
Friday, March 15
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 2822
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