The American revolutionaries applied this concept to their own legislative bodies. This explains, in part, why no minutes were kept of the constitutional convention of 1777 that created Vermont. Later the U.S. constitutional convention also prohibited the keeping of minutes, a prohibition that James Madison thankfully ignored. Madison’s personal notes are the primary source for knowing what went on at the convention. Even the deliberations of the U.S. Senate, when it was first created, were viewed as outside a public right to know. By the early 1800s, however, parliamentary privacy lost ground and legislative deliberations became open, usually in concert with the ratification of constitutional amendments protecting legislative speech.

In a recent article in The American Archivist, Dwayne Cox examined state case law from 1874 to 1918 involving the title companies’ struggle to gain access to the records of registrars of deed.1 The case law covered a variety of issues as title companies sought to have hired staff working in the registrar’s office, tried to create complete abstracts to all title records, and even sought rent-free space for doing the work. Registrars responded not only by pointing to the common-law tradition of direct interest, but also by noting the potential harm to the documents, the disruption of business, and the loss of fees if a parallel set of records was created by commercial interests. As Cox notes, "Many of the open records issues faced by late nineteenth- and early twentieth-century custodians of public records sound familiar….How can custodians of public records balance the demands of access and the need for security? When should they establish fee-for-service operations? To what extent can researchers legitimately circumvent these fees? When does an individual’s right to privacy supercede the public’s right to know?" 2

1. Citizens who wish to be added to the checklist cannot refuse to take the voter’s oath. When the Supreme Court struck down Vermont’s durational residency requirement as unconstitutional, the court found that the constitutional requirement to take the voter’s oath was fine. A voter is only required to take the oath once (If you move to another town in Vermont, you do not need to take the oath again.) That being said, each citizen must take the voter’s oath before being added to the checklist for the first time in Vermont.

2. Large commercial public events require state permit. The organizers of a commercial public event or gathering expecting 2,000 or more attendees must apply for a permit from the Department of Public Safety at least 30 days before the event is held. The Department of Public Safety may grant the permit, deny the permit, or grant the permit with conditions, such as providing a bond or other financial security. 20 V.S.A. § 4501 et seq. If a town wants to regulate smaller assemblies it must adopt a local ordinance. 24 V.S.A. § 2291.

3. Town accounts are public record. The law provides that accounts kept by the Town Treasurer must be available for inspection by interested persons. 24 V.S.A. § 1571. If a citizen has questions about town expenditures, he or she can visit the treasurer’s office and review and copy the town accounts. 1 V.S.A. § 316. Note that payroll information is public – although the treasurer should be sure to black out all social security numbers and other personal personnel information.

4. There is no recall of elected public officials in Vermont. No law in Vermont permits voters to recall an elected official. However, a citizen who is unhappy about an official’s actions has some options including:. discussing concerns with the public official and arguing for a different course of action, trying to get others to sign a letter or petition to the public official urging them to take these concerns seriously and the asking to have the issue discussed at a meeting of the public body. That being said, there is no statutory means to force the official to change a policy or discretionary decision. Voters cannot generally petition for a vote on policy decisions left to the discretion of a particular official. If a public official has failed to carry out a statutorily mandated duty, a prosecutor or citizens can bring an action for neglect of duty 24 V.S.A. § 902, 13 V.S.A. §3006.

5. Town party chair is entitled to one free copy of the checklist in the 30 days prior to an election. Vermont’s election law provides that the party chairs of each political party organized in a town can receive one free copy of the voter checklist in the thirty days prior to an election. 17 V.S.A. §2141. Other members of the public can request a copy of the checklist that must be provided at cost upon request. The checklist is a public record that must be provided without reference to the purpose that it is to be used for. There is a law that would prohibit the statewide checklist – once it is created – from being used for commercial purposes, but this does not apply to individual town lists. 17 V.S.A. § 2154(b).

6. Incompatible office rules apply to villages. The law that sets out incompatible offices for towns found in 17 V.S.A. §2647 also applies to village offices. 1 V.S.A. §139 provides that the laws that apply to towns in Vermont also apply to all municipal corporations including villages. Just as a selectperson cannot be the tax collector, a village trustee cannot be the village tax collector.

7. Village BCA differs from Town BCA. The Board of Civil Authority of a village consists of the Justices of the Town who reside in the village, the trustees of the village, and the village clerk. Other Justices of the Peace who reside in the Town but not in the village cannot be involved in administering village elections. 17 V.S.A. §2103(5).

8. Village checklist comes from town checklist. A village clerk must automatically include on the village checklist all voters living within the village who are on the town’s voter checklist. 17 V.S.A. §2126. There is no need for the voter to apply separately to the village clerk.

9. Appointed BCA members can only participate in election related activities. Members of the Board of Civil Authority who were appointed by the selectboard to increase representation for an underrepresented party shall have the same duties and authority with respect to elections as have other members of the Board, including participation in the Legislative Reapportionment meetings and decision every 10 years. 17 V.S.A. §§ 2143,1891-1909. Members so appointed cannot participate in BCA functions that are not related to elections, such as property tax appeals or tax abatement hearings.

10. Spending reserve funds is generally up to the legislative body. If a town has established a reserve fund for a special purpose, such as a reserve fund for highway equipment, the statute provides that the reserve fund is to be under the "control and direction" of the legislative body (i.e. selectboard or school board). 24 V.S.A. §2804. Once a reserve fund is established and funded by town vote, the board may spend the funds without another town vote so long as the expenditure is for the purposes for which the fund was established. If the legislative body wants to spend those reserve funds for any other purpose, then the voters at an annual or special meeting of the municipality must authorize the spending.

11. Elected officials do not qualify as employees for the purpose of workers compensation law. Elected public officials, such as selectboard members are specifically excluded from the definition of "employee" in Vermont Worker’s Compensation and Unemployment Compensation statutes. We have confirmed with the Commissioner of Labor and Industry that ALL officials who are serving in positions that are "elected" when originally filled, are excluded from coverage, even if a particular selectboard member or other official has been appointed by the selectboard to fill an unexpired term. It is the category or type of position created by the statute that determines the exclusion. Therefore Town Treasurer’s do not need to include any officials serving in offices that are normally elected by the voters for purposes of Worker’s Compensation or Unemployment Compensation.

12. Citizens cannot force selectboard to adopt an ordinance – except for ethics rules. Vermont law does not permit citizens to force a selectboard to adopt, amend or repeal an ordinance (except for those governing ethical rules for local officials). However, upon petition of 5% of the voters within 44 days of adoption of an ordinance, petitioners can force a town vote to disapprove a proposed ordinance. 24 V.S.A. §1973(d). If the voters disapprove the ordinance, the ordinance ends. If the voters fail to disapprove, then the ordinance takes effect.

13. BCA must take an oath before hearing tax appeals. Vermont law requires that BCA members take an oath before entering upon their tax appeal duties 32 V.S.A. § 4404. The required oath for members of the board of civil authority who will be hearing tax appeals is found in 32 V.S.A. §4405. Board members should take the oath each year before beginning the first tax appeal hearing.

14. Charter provisions generally preempt general law. When there is a conflict between a municipal charter and State law, the charter will govern. That is because rules of statutory construction provide that more specific statutes will govern over more general. Aube v. O’Brien, 140 Vt. 1, 4, 433 A.2d 298, 299 (1981) (when two statutes are in conflict to the extent they cannot be reconciled, the specific will usually prevail.)Although, if reasonably possible the court will require that both apply. Downtown Rutland Special Tax Challengers v. City of Rutland, 159 Vt. 218, 221, 617 A.2d 129, 131 (1992) (laws relating to a particular subject "should be construed together and in harmony if possible.")

15. Town only has those powers specifically granted to it by the legislature. In Vermont, we have no home rule constitutional provision, which means that a town has only those powers specifically authorized by the legislature. Hinesburg Sand & Gravel Co. v. Town of Hinesburg, 135 Vt. 484, 485-86, 380 A.2d 64, 66 (1977).

16. Boards must stick to special meeting agenda. When a board calls a special meeting it must publicly announce, at least 24 hours before the meeting, the time, place and purpose of the meeting. These notice requirements are designed to alert the press and public to the issues that are to be considered at the special meeting of the board so that they know whether or not they wish to attend. Accordingly, the board may only discuss the issues specifically noticed for the meeting. 1 V.S.A. § 312(c)(2).

17. Open meeting errors can be corrected by ratifying board action. In the event that a board violates the open meeting law when it discusses and decides a particular matter, it can cure the error by ratifying the action at a later meeting. The decision must be ratified at a regular meeting where the issue is on the agenda or at a special meeting of the board that is properly noticed. Stalbird v. Town of Washington, 106 Vt. 213, 216, (1934) (selectmen have "power of ratification" if they act in good faith and for best interests of town as they see it): Valley Realty & Development v. Town of Hartford, 165 Vt. 463 (1996) (Invalidation of public action is often an "extreme remedy" that may be inappropriate for the underlying violation.)

18. Clerk must record lien despite landowner’s objection. The law does not give the town clerk authority to reject a lien submitted (with proper fee) for recording in the land records. 24 V.S.A. section 1154 (a) says "A town clerk shall record in the land records, at length or by accurate, legible photocopy, in books to be furnished by the town: . . . (2) instruments or evidences respecting real estate;". The fact that the landowner objects or claims that the lien is improper will not alter the clerk’s obligation. This does not give the clerk discretion. Indeed, it would be bad policy to ask the clerk - a person who generally has no legal expertise - to make legal judgements as to whether a particular lien or other instrument respecting real estate is legally sufficient. For this reason the law make it the responsibility of those who file the instruments to ensure that they are legally valid - and if they are not, even though they are recorded in the land records, they may have no force and effect.

19. Clerk must record copy. The general rule is that a clerk must simply record a document when it is presented for recording. If the document presented is a copy and not an original this presents some problems since, once copied into the town records a person searching the records will have no way of knowing that what he or she is looking at is not an original document. Therefore, when given a copy for recording, the clerk should clearly indicate in the margin that the recording is of a copy. This will hopefully prevent someone from being misled later on. It is up to the attorneys to decide whether a recorded copy of a document has any legal force or effect!

20. Adverse possession rule is 15 years. Vermont law provides that a person who possesses another’s property (or who uses a right of way over someone else’s property) obtains title to that property (or a legal right of way over that property) if their possession was "open, notorious, hostile and continuous for the full statutory period of fifteen years." 12 V.S.A. § 501. Lawrence v. Pelletier, 154 Vt. 29 (1990). If the landowner has permitted the person to use the property no adverse possession claim can be made unless there is an express or implied revocation of that permission. Note that it takes a court action to transfer title by operation of this law. Only when the town clerk is given such an order for recording can the grand list be changed to reflect the new ownership.

21. Public land cannot be acquired through adverse possession. Vermont generally follows the common-law rule that a claim of title or right by adverse possession does not lie against public lands. Society for the Propagation of the Gospel in Foreign Parts v. Town of Sharon, 28 Vt. 603, 612 (1856). The principal behind this rule is that it would hurt the public to allow adverse possession of lands dedicated to public use.

22. Municipalities can acquire land through adverse possession. Although a municipality cannot lose the right to property through adverse possession, the courts generally recognized that public entities, including municipalities, may acquire land by adverse possession. In re: .88 Acres, 165 Vt. 17 (1996).

23. Board must give notice before selling town property. If the legislative body of a town or village wants to sell municipal real estate, the legislative body must give notice of the terms of the proposed sale by posting a notice in at least three public places within the municipality and publishing notice in a newspaper of general circulation within the municipality at least 30 days prior to the date of the proposed conveyance. If the voters wish to vote on the proposed sale they have 30 days from the date of posting to bring in a petition signed by 5% of the voters to require the board to call a special election to decide the issue. 24 V.S.A. § 1061.

After an election I place the binder with all the Requests for Absentee Ballots in a "shredding drawer" with the date for shredding clearly marked on the outside. Then, when the time comes, it is easy to pull out the binder and shred the papers without trying to remember the retention date.

If you have a good tip that you would like to share with our readers please email it to Sandy Harris at vernontc@sover.net or mail them to:

Sandy Harris- VMCTA President
Town of Vernon
567 Governor Hunt Rd
Vernon, VT 05354