1. Voters cannot petition to force Selectboard to apply for a grant. In most cases the law will not permit voters to force a selectboard to apply for a grant for the town by petitioning for a vote of the town. That is because applying for grants for particular purposes is part of the general oversight of the town left to the selectboard or another specifically authorized town board. If the terms of the grant require a vote of the town then the voters may petition to hold such a vote.

2. Selectboard can ask for public input on grant. If the selectboard wishes to get a consensus of the town before it applies for a grant it is free to ask for public opinion at one of its board meetings. The board can also choose to put an advisory article on a special or town meeting warning.

3. No state agency can force Selectboard to act. We get regular calls from disgruntled citizens who are mad at their selectboard and are looking for a "higher authority" who can force the board to be responsive to their concerns. Of course, in Vermont the local elected officials are accountable solely to the people they serve. There is no "higher authority" who can intervene - unless the board fails to follow the state law. In such a case a citizen can go to court - and the court can demand that the board comply with the law. Because it is costly and time consuming to go to court, in most cases the best recourse for citizens who are upset about an unresponsive board is to elect new members at the next town meeting.

4. School District clerks appoint assistant cerks. Vermont law requires school district clerks to appoint an assistant to perform all duties of the clerk in his or her absence. The law states: "after his or her election as a Town School District Clerk, a Union School District Clerk, a Unified District Clerk or an Incorporated District (I.D.)Clerk, the elected Clerk should appoint one or more assistant clerks for whose official acts he or she shall be responsible, and the assistant clerk shall be sworn in and is authorized to perform all of the duties of the Clerk in his or her absence." 16 V.S.A.§551 and 24 V.S.A.§1170,1171.

5. Petitions on school matters must be directed to the School Board. Special meetings of the school district may be held upon petition of 5% of the voters of the district. Such a petition should be submitted to the school district clerk (who is generally also the town clerk.) Once the clerk verifies that the proper number of signatures are or are not on the petition the school board must accept or reject the petition (depending on whether it is a legal petition) and then, if required, set a special meeting of the district to consider the petitioned article. 16 V.S.A. § 472.

6. Vacancy on school board is filled by Selectboard upon recommendation of the School Board. The school district is independent of the selectboard in all ways except that its vacancies are filled by the selectboard. The law states that "The selectmen shall, with the advice of the remaining school board members, within 30 days of the creation of the vacancy, appoint a qualified person to fill a vacancy in the town school board, until an election at a special or annual meeting is held and a record thereof shall be made in the office of the town clerk. " 16 V.S.A. § 424.

7. Only those board members who heard the evidence may participate in a permit decision. When a municipal board is acting in a quasi-judicial proceeding, (i.e. holding a hearing to gather evidence that will result in a written decision,) a quorum of the board must hear all of the evidence, and a majority of the board must agree on the decision. (Note an exception to this rule for School Boards described below). 1 V.S.A. § 172. However, a board member may not participate in making the decision unless he or she has heard ALL of the evidence. (The due process clause of the constitution requires decision makers to make decisions based on the evidence. This is not possible if the board member has not heard the evidence.) There is some case law to suggest that if a board member misses part of the hearing, he or she can listen to a tape of the missed portion of the hearing and view written evidence and still participate in the decision. However, if a member misses part of a hearing that is not tape recorded, the member CANNOT participate in the decision. Reading minutes of a previous hearing is not sufficient to allow a board member to participate in the decision.

8. A majority of those present at a school board meeting have the authority to take formal action. Like all town boards, a majority of the members of the board constitutes a quorum. However, notwithstanding 1 V.S.A. § 172, the law permits a concurrence of a majority of members present at a school board meeting to take binding board action. 16 V.S.A. § 554.

9. Board members may not act alone. A member of a board only has authority to act as part of the board. This rule applies to all local boards. For example, for a three-member board to act in a quasi-judicial proceeding, at least 2 members of the board must hear all of the evidence and must agree upon a decision.

10. School Board must follow Roberts Rules of Order. Unlike town boards, that can create their own rules of order, Vermont law requires school boards to conduct their meetings using Robert's Rules of Order. 16 V.S.A § 554.

11. Nonprofit boards do not have to follow open meeting law. Nonprofit corporations are private entities – even if they receive public money to operate, and even if they provide public services to citizens of the town. The open meeting law applies only to "public bodies" which are defined as "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 . . ." Therefore, Vermont’s open meeting law will not apply to the board meetings of non-profits.

12. It is time to purge your voter checklist! In September of each odd numbered year, the town clerk is required to send a letter to the Secretary of State to confirm that the BCA has completed purging the town’s voter checklist. A memorandum explaining the process and including sample forms was sent to each Town Clerk by the elections division this summer. Please review the memorandum with your BCA and then review your checklist to remove names or to send purge letters to persons who have moved from your town.

13. When an Independent Justice of the Peace position is vacated, the governor picks a replacement. Vermont law does not tell us who can make recommendations to fill a Justice of the Peace vacancy created by the death or resignation of an Independent justice. 17 V.S.A. §2623 was not amended when section 2402 was amended to allow citizens to petition for the office of Justice of the Peace as independents. Section 2623 provides that the Town Committee of the political party of the justice who created the vacancy may make recommendations to the Governor, and then the governor may appoint a qualified person, whether or not the appointee is recommended by the party committee. The law does not suggest a procedure for recommendation for filling the vacancy of an independent justice, although the vacancy will be filled by appointment by the Governor.

14. Assistant judge vacancy is filled by Governor upon recommendation of the County Political Committee. When there is a vacancy in the office of Assistant Judge, the law provides that the governor may request the county political party of the person whose death or resignation created the vacancy to submit one or more recommendations as to a successor. 17 V.S.A. § 2623.

15. BCA tax appeal hearings can be continued until they are completed. Although Vermont law requires the Board of Civil Authority to begin tax appeal hearings no later than 14 days after the last date allowed for the notice of appeal, the hearings can be convened and then continued to another date if there are too many hearings or if the board wishes to agree to an appellants request for a different hearing date. 32 V.S.A. §4404 requires the BCA hearings to start within the 14 days but does not require that the hearings be completed on that date. As a practical matter the BCA can schedule a number of appeals for the same night and then continue some of those hearings to a date certain if the individual hearings take longer than anticipated. However, if a hearing is postponed at the request of an applicant rather than convened and then continued to a date certain, the board should obtain a waiver from the appellant. It is within the discretion of the BCA to allow postponement to a later date at the request of the appellant or to insist on going forward on the scheduled date.

16. Tax appeal can be conducted without the appellant present. When a taxpayer appeals his or her assessment the BCA is required to hold the hearing to decide the appeal. This is true even if the person bringing a tax appeal to the BCA fails to attend the hearing. In such a case the board must consider the appellant’s written submission, inspect the property and render a decision. Note that if the appellant refuses to allow an inspection of the property (both interior and exterior of any structure), then the appeal will be considered withdrawn. 32 V.S.A.§4404(c).

17. Justice/Selectboard member gets only one vote on the BCA. When a person is elected both as a Selectboard member and a Justice of the Peace, that person is only entitled to one vote on the Board of Civil Authority. The number of board members on the full board is also reduced by one for purposes of calculating a quorum. For example, if a town normally has a BCA made up of five selectboard members, 15 justices and a town clerk, the board would be 21 members and a quorum for other than election purposes would be 11. If, however, in the same town, two selectboard members were also elected Justices of the Peace, the board would be 19 members and a quorum for other than election purposes would be 10. NOTE: For tax appeals, at least 3 members must be present and then a decision made by a majority vote of the board members present.

18. Constable’s authority is limited to the boundaries of the town. Vermont case law makes it clear that Vermont’s constables, whether elected or appointed, do not have any authority outside of the boundaries of the town in which he or she was elected or appointed. State v. Hart, 148 VT 104 (1987). While municipal police officers were given authority by the Legislature in 1988 to exercise statewide jurisdiction, constables were not included in this authorization. A constable should be very careful not to misrepresent his authority outside of his town. For example, if a constable represented himself to be a "police officer" with full authority when in a car accident out of his or her jurisdiction, it is possible that the constable may be charged as impersonating a police officer.

19. Petition can include only signature of voter. Vermont law requires the town to warn articles requested by a petition "signed by at least five percent of the voters of the municipality." 17 V.S.A. § 2642. To comply with this requirement a petition must include the warned article and enough information for the clerk to know who the person signing is and, and to determine that the person who signed the petition lives in town. Although all that is required is a voter’s signature, it makes it easier for the clerk to have the printed name of the voter so that he or she can read the name to determine whether the person is on the voter checklist.

20. Once a meeting is warned petition signers cannot revoke their signatures to prevent the vote. In one town some of the citizens claimed that they misunderstood what they were signing when they participated in a petition drive in the town and wanted to revoke their signatures right before the meeting was to be held. Once a petition is submitted to a board the board can use its discretion to allow people who signed the petition to remove their names – however once a meeting is warned it is too late. The bottom line is that people who sign petitions must take responsibility for knowing what they are signing!

21. School board member must resign post when hired by a school in the supervisory union. The law provides that a member of a school board may not be regularly employed by the school district or by a school district within the same supervisory union or by the same supervisory union during the board member’s term of office. 16 V.S.A. § 558. Note that the commissioner of education can waive this provision when a board member is being hired as a substitute teacher, coach or supervisor of extracurricular activities. This waiver will only last for a year unless the school can prove that it cannot find anyone else to hire to replace the school board member.

22. School board can authorize superintendent to draw orders to pay school bills. 16 V.S.A. § 563 (8) permits the board to "authorize a subcommittee, the superintendent of schools, or a designated employee of the school board to examine claims against the district for school expenses and draw orders for such as shall be allowed by it payable to the party entitled thereto. Such orders shall state definitely the purpose for which they are drawn and shall serve as full authority to the treasurer to make such payments. It shall be lawful for a school board to submit to its treasurer a certified copy of those portions of the board minutes, properly signed by the clerk and chairman, or a majority of the board, showing to whom, and for what purpose each payment is to be made by the treasurer, and such certified copy shall serve as full authority to the treasurer to make the payments as thus approved.

23. Board can elect new chair at any time. Although the law requires a board to reorganize after the annual meeting of the town, there is no law to prevent the board from revisiting its decision at any time. So long as a majority of the board agrees to do so, the board can reorganize again – setting a new regular meeting time and date, appointing a new chair and clerk, etc . . . . Notice of the changes should be posted so that members of the public will be aware of the them.

Table of Contents     |     Past Issues of Opinions     |     Secretary of State's Homepage
 

Table of Contents     |     Past Issues of Opinions     |     Secretary of State's Homepage
 

Table of Contents     |     Past Issues of Opinions     |     Secretary of State's Homepage
 

Table of Contents     |     Past Issues of Opinions     |     Secretary of State's Homepage
 

Table of Contents     |     Past Issues of Opinions     |     Secretary of State's Homepage
 

The ability to obtain copies of public records is crucial to Vermont’s right to know mandates. Secretary Deborah Markowitz encourages your input on the proposed rule. You may submit written comments to Deputy Secretary of State Bill Dalton (26 Terrace St., Montpelier, VT 05609-1101, Fax (802) 828-1135 or via email: bdalton@sec.state.vt.us). The public hearing on the proposed rule will be on September 29, 2003 at 9 a.m. at the Secretary’s Office at 26 Terrace St.

In 1996 the General Assembly, seeking uniform charges for copies of public records, required the Secretary of State, in consultation with the Secretary of Administration, to establish, by rule, a fee schedule for copies.

The fee schedule must conform to the formula set out in 1 V.S.A. §316(d) that factors in the cost of media, use of copying equipment and labor charges when complying with a copying request takes more than 30 minutes. The proposed charges are listed below. New language is underlined and deleted charges and language are struck through.