Voice from the Past
By Paul Gillies

The most prosaic duty of a selectboard is to make the budget. Everything else the board does in December is a welcome distraction from this tiresome job. Watch closely: see how their heads drop, their eyes glaze over, when the night grows long in the shank and somebody makes a longwinded pitch for an appropriation.

Wake up, now, this is important. The budget is the most critical document in the annual life of the town. Within the puts and takes of the budget process, policy emerges. What are we going to do with the road crew? Is it time for
another member? How about the town officers who draw a salary? Are they paid enough? These and dozens of other questions need to be answered before a budget is written.

Ideally, every board starts with an open discussion about the needs of the town. Most selectboards know they can’t sell a large increase in the tax rate, especially when school budgets may not be conservative, but a good working target – a bottom line – is essential preparation for the parade of prayers that follows from the various players (both individuals and boards) that make up the infrastructure of town government.

The best strategy is to hold back. Don’t commit yourself to anything, not one cent, until you’ve heard from everybody about the town’s needs for the coming year. This goes for meetings and for private conversations with a road crew member, the constable, or members of the public. From the perspective of those who want you to favor them – the listers hoping for more per hour, the planning commission wanting to hire a consultant, the zoning administrator asking for more hours – early commitment to their priorities is much preferable to the awful last hours of the budget process, when hard decisions and tough choices are made.

For the good of the town, reserve is required. Be like an old Vermonter, who seldom speaks and never reveals feelings in public. Show no preference for anyone, but be careful. You don’t want to sound discouraging. Ask your questions, while remaining supportive and appreciative of what they’ve done for the town.

It makes complete sense to have a computer spreadsheet to work with, and someone able enough to make changes and print out new versions as needed. You don’t want to add up columns more than once, and a little pinch here or little more there can change everything. Another good idea is to think about how the budget is arranged, and keep a close eye on how the categories of expenditure within the general and highway funds are changing, year to year.

Don’t let any major changes in expenditure or appropriation go unexplained, because on the first Tuesday of March you are going to have to be able to explain and defend these changes. It is foolish to assume others are going to miss the hot spots in the budget come town meeting.

Once you’ve heard from everybody, there comes a time for decision. This is not going to be pleasant, however you try. You can’t agree with everybody and you won’t make everybody happy. When it gets right down to it, it’s amazing how little discretion there is in a budget, but there are places where you can have an impact on town life. It doesn’t take a lot to improve how townspeople feel about their community.

Nobody gets flowers or congratulations for writing good budgets. The hard work doesn’t show in the final product. You may find yourself having offended someone inadvertently, who took your rejection of their request too
personally, but they will come around in time. Perhaps they may stop one day and realize that your job was not as easy as it seemed.

A dilemma is a hard choice between two unacceptable alternatives. A hard choice between two options, both of which are beneficial and worthy, is called an antinomy, and that’s a fine word for the state of mind of most selectboard members during December. Hang in there, ladies and gentlemen of the board. Yours is the toughest job there is in government.

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

Opinions of Opinions

2. Voters can set pay of manager. The selectboard generally sets the salary of the town manager. However, if the voters vote a particular salary, the selectboard is bound by the amount set. 24 V.S.A. § 1239.

3. Town can vote to have manager collect taxes. The voters can elect to have the town manager collect all taxes due the town and perform all the duties conferred by law upon the collector of taxes. Once voted, the manager will serve as the tax collector until the voters elect otherwise. When the town manager collects delinquent taxes he or she may charge and collect the same fees as a collector of taxes that will be paid into the town treasury. 24 V.S.A. § 1236.

4. Tax sale is not the only way to collect delinquent taxes. In one town no one bid on a parcel of delinquent tax property. The town was also not interested in purchasing this property so the Delinquent Tax Collector wanted to know if she had any other options. Tax sale property is only one method of collecting delinquent taxes. 32 V.S.A. § 5251. In the alternative, the collector could take a variety of steps to recover the taxes:

5. Town should not have policy of bidding at all tax sales. One town made the mistake of adopting a policy of bidding at all tax sales in the amount of taxes, penalties and interest due. 32 V.S.A. § 5259. This policy resulted in the purchase of a mobile home of no value, which cost the town money to remove. The best policy is to have the delinquent tax collector describe, in advance of the sale, each parcel to be sold so that the selectboard can decide on a case by case basis whether it is in the interest of the town to bid on the property.

6. Tax sale may include water and sewer delinquencies. According to 24 V.S.A. §§ 3504, 3612 delinquent water and sewer charges can be collected in the same manner as delinquent property taxes. This means that when a person is delinquent in both taxes, and water and sewer charges, all of these delinquencies may be combined and collected together. Of course, the collector should set each delinquency out separately in the notice of delinquency that is sent to the taxpayer so they know the basis of each delinquency.

7. Absent voter’s ballot counts even after death. If a voter who has requested an absentee ballot dies prior to Election Day, but the voted ballot has been properly returned to the Town Clerk with the certificate and signature completed by the voter, the ballot should be commingled and counted with all of the other ballots. The statute provides that absentee voters shall be treated as "present and voting" on Election Day (17 V.S.A. §2550). Therefore absentee ballots properly returned should be counted.

8. Petitions for municipal office must include office and term length. In municipalities using the Australian ballot system for election of officers, Vermont law requires that candidates clearly indicate the office and term length on the petition prior to circulating it for signatures. 17 V.S.A. §2681(b). For example, a candidate cannot circulate a petition for selectboard without indicating which term he or she is seeking. It is permissible for a person to circulate two or three different petitions for selectboard, one petition for the one-year seat, one for the remaining year of a three-year term, and one for the three-year term, and then wait until the filing deadline to decide which petition to submit to the Town Clerk. However, a candidate cannot circulate a petition for signatures without a term length and then add or change the term length after signatures have been obtained.

9. There is no official clerk-treasurer position. In many towns the same person serves as the Town Clerk and Town Treasurer. Nevertheless, the two offices are separate and must be elected separately. This means that candidates for clerk and treasurer who are elected by Australian ballot must file a separate petition and consent form for each position, and the voters must vote separately for each position.

10. Town treasurer serves as school treasurer unless school votes otherwise. The town treasurer serves as the treasurer of the town school district unless the school district elects a town school district treasurer. The town treasurer cannot decide to give up the duties of the school treasurer; however, the town can appoint an assistant treasurer to perform the school treasurer duties. For convenience, the treasurer could consider appointing the school district’s bookkeeper or financial manager as the assistant treasurer. The treasurer will be responsible for the acts and omissions of the assistant treasurer. 16 V.S.A. § 426.

11. Investment of funds is a joint responsibility. While the treasurer has control over the accounts of the town; how and where to invest the money (including decisions as to what bank to keep the town accounts in) are a joint responsibility of the treasurer and the selectboard. 24 V.S.A. § 1571(b) provides that "moneys received by the town treasurer on behalf of the town may be invested and reinvested by the treasurer with the approval of the legislative body."

12. The selectboard can get a credit card to make purchases for the town. The selectboard can choose to authorize the use of a credit card for town purchases. However, before the treasurer pays the credit card bill the selectboard should review the purchases and sign a warrant for payment.

13. Town treasurer should not make out checks without warrant signed by the board. In one town the selectboard asked the treasurer to bring already filled out checks to the selectboard meeting prior to the board’s approval of the individual expenditures. 24 V.S.A. § 1576. The treasurer was correct to decline. Indeed, Vermont law only permits the treasurer to make payments based on properly signed orders of the board or based on certified minutes of the board, signed by both the board’s clerk and chair or by a majority of the board, clearly setting out the amount, and to whom payment is to be made. 24 V.S.A. § 1623.

(Excerpted from Tune Up for Towns, a publication of the Office of the Secretary of State. To obtain the full publication, visit www.sec.state.vt.us or call 802-828-2148)

You go to the dentist twice a year for a checkup, usually not because you have a known problem but because you want to know if there is one you haven’t noticed. Some annual checkup is also probably done on your furnace, your car, and your dog. So why not the town? Give your town a legal tune-up by reviewing the checklist below.

Last month we provided a checklist of items to consider to ensure that you are following the legal requirements of Town Meeting. This month’s checklist will cover considerations for Board of Civil Authority. As with last month’s list, some of the items are not the law; they are simply recommendations based on others’ bad experience. The list below is just the start.

þ Are all Justices properly sworn on or before February 1 of the year following their election? Have all members of the board taken the necessary oath prior to hearing tax appeals?

þ Does the board know and understand the conflict of interest provisions of 32 V.S.A. § 4404(d) and 12 V.S.A. § 61?

þ Has the board elected a new chair following town meeting each year? See 24 V.S.A. § 801. If members of the board have been appointed to ensure political balance are you sure that they participate in only election-related functions? 17 V.S.A. § 2143.

þ Are board meetings being warned at least five days before the meeting, by providing written notice of the meeting to all of the members of the board, and by posting a public notice in two places in each voting district and by lodging the notice in the town clerk’s office? 24 V.S.A. § 801.

þ Are the board’s decisions written lucidly enough to explain to taxpayers and listers the basis for its decision in a tax appeal? Try asking a resident who has no interest in an appeal this year to read a decision and see if it’s clear enough.

þ Has the board purged the checklist, reviewing every name for continued eligibility (residency, in most cases) by September 15 of each odd-numbered year? See 17 V.S.A. § 2150(d).

þ Has the board reviewed its policy on the number of voting booths, the time of opening the polls on Election Day (particularly the Primary and General Elections), and the number and adequacy of polling places recently?

þ Has the board checked all polling places to ensure that they are fully accessible (including accessible bathrooms if there are bathrooms available to the general public?)

****************************************************************************

Now that Vermont’s leading holiday season—hunting season— has passed, the rest of the holidays will soon be upon us. Every year we get calls from the public and from Vermont local officials asking us about the guidelines that govern holiday displays on municipal property. Although there has been a considerable amount of litigation on this issue, there are no hard and fast "rules" about holiday displays on public property. Rather, it will depend upon the context of the particular display.

The definitive United States Supreme Court case, County of Allegheny vs. ACLU, 492 U.S. 573 (1989). makes it clear that any decision will be extremely fact specific and the outcome will depend on the presentation of the various facts to the judge. In fact, in Allegheny, the Supreme Court justices wrote five separate opinions joined in whole or part by various members of the court because the nine justices drew different conclusions based on the facts as presented.

After the Allegheny decision, the judge must determine: "would a reasonable observer of the challenged display in its particular context perceive a message of governmental endorsement or sponsorship of religion?" This means that not every municipally displayed creche or menorah violates the Establishment Clause. The issue now is whether a reasonably informed observer could identify the display as a message of endorsement of a religion or recognize it as a celebration of the diversity of the holiday season.

In a nutshell, we believe that if municipal officials wish to permit holiday displays on public property, the physical display(s) itself and all of the historical and cultural facts surrounding the placement of the display(s) must support the conclusions that the display(s) are a celebration of the diversity of the holiday and not an endorsement of a religion.

The rules are somewhat different when private groups put up holiday displays. In Capitol Square Review Bd. v. Pinette, 115 S. Ct. 2440 (1995), the United States Supreme Court distinguished between privately sponsored and governmentally sponsored religious displays on public property. Generally the rules that will apply to whether private citizens may erect religious displays on public property are as follows: private citizens may erect religious or holiday displays if the property is a public forum on which the government has permitted a wide variety of expressive conduct, the members of the public follow the ordinary permit or application process for use of the public forum, and either they must include a sign informing the public that the display is sponsored by private citizens and the government is not endorsing its message or the religious display must be accompanied by a variety of secular holiday symbols such that the overall message of the display is not exclusively or primarily religious.

Of course if you see a controversy brewing over public holiday displays in your town, contact your town attorney for advice specific to your situation! And, happy holidays!

**************************************************************************

Vermont Public Service Awards
 

Civics: Behind the Scenes
by Janel Johnson

Quote of the Month

It’s easy to make a buck. It’s a lot tougher to make a difference.
— Tom Brokaw

Mailing List Updates

December 2005-January 2006 Calendar