Office of the Vermont Secretary of State - www.sec.state.vt.us 26 Terrace Street, Montpelier, VT 05609-1101 : Phone 802-828-2363 |
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The long days of summer allow enough time, at the end of the day, to retire to the back lawn with a stack of books. Depending on the level of companionship provided by noseeums and deerfly, I then give free rein to my eclectic reading interests. For example, I began the summer with thoughts of building a stone retaining wall for one of our gardens. To learn about different building techniques I read Kevin Gardner’s The Granite Kiss. The title, which refers to getting your finger smashed between two stones, was not encouraging but the book was helpful and also pointed me toward Susan Allport’s Sermons in Stone: The Stone Walls of New England and New York. Here I gleaned that in 1870 there were 252,539 miles of stonewalls in New England and New York and that it would take 15,000 people, working 365 days a year, 243 years to build stonewalls of comparable mileage. Apparently the work that went into these walls would have built the pyramids of Egypt a hundred times over. I am never quite sure how to respond to such nuggets. How were the calculations arrived at, for example? But this is summer reading, so I don’t care as long as I can trot out such factoids at dinner parties (this may explain the declining number of invitations we receive). What struck me, however, was how stonewalls, an efficient and necessary response to an agricultural need (clearing land for farming), ultimately became barriers to the increasing mechanization of agriculture. New horse-drawn harvesters and other technologies were designed for the wide open fields of the west, not the small, stonewall-enclosed fields of New England. This contributed to the decline of New England agriculture. This, in turn, lead to thoughts about several on-going projects on implementing electronic record systems; how can we identify and implement standards so current computer systems don’t become barriers to new information technologies? That train of thought suggests that my summer reading is not the escape it should be. So I picked up Jodi Picoult’s Second Glance, a mystery/ghost story set in Vermont. I was delighted to discover that the author not only incorporated the Vermont Eugenic Survey into her story, but also availed herself of some of the Survey’s records that we had helped process a number of years ago. Alas, part of the tale turned on the discovery of eugenic records in a town clerk’s office; if I recall correctly the records were described as neglected and scattered across the floor of the clerk’s vault. Encounters with the myth of the "dark and dusty" archives are too common, whatever your reading tastes. Though I should have known better, in order to escape my record-haunted reading, I then picked up Geoffrey Stone’s Perilous Times: Free Speech in Wartime. Though the book was a hernia-inducing 730 pages long, it was well written and fascinating. Vermont figured prominently in the first chapter on the Alien and Sedition Acts from 1798-1801. Twenty-five leading Jeffersonians were arrested under the Sedition Act, ten of whom were brought to trial. All ten were convicted, including two Vermonters: Matthew Lyon and Anthony Haswell. Lyon’s case is relatively well known, particularly the fact that Vermonters re-elected him to Congress while he was serving his sentence in a local jail. Haswell, publisher of the Vermont Gazette, created a lottery to help pay Lyon’s fine, writing that "your representative…is holden by the oppressive hand of usurped power in a loathsome prison, suffering all the indignities which can be heaped upon him by a hard-hearted savage, who has, to the disgrace of Federalism, been elevated to a station where he can satiate his barbarity on the misery of his victim" (the "hard-hearted savage" was the Federalist sheriff Jabez Fitch). This was enough to earn Haswell his own conviction under the Sedition Act in 1798. Since Haswell’s sentence ended on July 7 th Vermonters postponed their 4th of July celebrations until the 7th and some 2,000 supporters gathered to greet Haswell upon his release. Of course civil liberties and records are closely tied and once again I found myself reading about recordkeeping issues (the section on Daniel Ellsberg’s theft and publication of the Pentagon Papers not only touched on record issues but stirred memories from my youth).Figuring I had found a safe, if depressing, harbor from records I began reading Romeo Dalliare’s Shake Hands with the Devil on the Rwanda genocide. Lt. General Dalliare was the UN commander in Rwanda who tried valiantly but in vain to bring world attention to the horror that was taking place around him. Even within this horrifying memoir of inhumanity and indifference one could find references to Vermont and records. While General Dalliare has particularly harsh words for Belgium, France and the United States, he gives thanks to two U.S. Senators who contacted him in order to move the Clinton Administration to action; one of those senators was Jim Jeffords (the other Paul Simon). Dalliare also noted the role of records, including how extremist Hutus used an identity card system that included ethnic identity, first created during Belgium’s colonial rule, to target Tutsis for death. He also expressed his suspicion that memos, received after the genocide began to receive international attention, were "included only for the archives"; that is to create a historical record that protected the UN from charges of indifference. My professional reading underscored how recordkeeping can be important to documenting genocide. I recently read an article by Dawne Adam on the meticulous recordkeeping conducted by the Pol Pot regime in Cambodia ("The Tuol Sleng Archives and the Cambodian Genocide" in the Spring 1998 issue of Archivaria). Ms Adam noted that "obsessive documenting allowed [the Khmer Rouge] to reassure themselves that all measures had been taken to cleanse the country" and thus defend their ideology. If that obsessive documentation was not depressing enough, Ms Adam went on to explain how difficult it was to bring Khmer Rouge leaders to trial despite the capture of their extensive files from the Tuol Sleng death camp. Our celebration of records as instruments of accountability is sometimes overblown. As the above suggests, I include professional literature in my summer reading. One such book is Richard Cox’s No Innocent Deposits: Forming Archives by Rethinking Appraisal. Dr. Cox wonders about the decisions, over time, that have filled our archives and historical societies; about criteria we are currently using to identify archival records; and about how those decisions affect perceptions of archives as either repositories of evidence and as "memory houses." These are interesting questions in Vermont where the core collections of the Archives, UVM’s Special Collections, the Vermont Historical Society, the Sheldon Museum, the Fairbanks Museum, the Shelburne Museum, etc. originated from the idiosyncratic collecting impulses of a few individuals like Henry Stevens Sr and Jr, Henry Sheldon, Horace Fairbanks, Electra Webb and others. Dr. Cox’s musings are also timely as the Archives attempts to respond to a host of new legislative directives to document the executive and judicial branches of government. What is it we, that is, all of us, need to document and why? Have the answers to those questions changed over time and what records of accountability and memory will we collect? Where all this gets me or what book will next surface from my stack of summer reading is unclear. Meanwhile the stonewall for the garden awaits; but wait, the new Harry Potter just arrived; let me take a look then I will get back to work.
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This summer the Board of Civil Authority in each town must complete a review of the checklist and send "challenge" letters to all persons on the list that any member believes may have moved out of town. The statute requires that by September 20 of each odd-numbered year, towns must send a letter to the Office of the Secretary of State certifying that its checklist has been updated and that detailed records have been maintained. 17 V.S.A. §2150(d)(7) If the BCA meets at regular intervals throughout the year to send challenge letters then the biennial purge should be fairly easy. 2. Citizens who wish to be added to the checklist cannot refuse to take the voter’s oath. 3. State permit required for large public gatherings. 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. If a town wants to regulate smaller assemblies, the town needs to enact local ordinances or regulations. 4. Town treasurer’s records must be made available for inspection. Any member of the public who has questions about the town’s accounts or expenditures may look at them. The law governing treasurers has a provision that expressly permits the public to visit the treasurer’s office and review the accounts kept by the treasurer. The public record law would additionally require the treasurer to make copies of those records upon request. 24 V.S.A. § 1571; 1 V.S.A. 316. 5. There is no recall of elected public officials in Vermont. Vermont law (except for a few municipal charters) does not provide for recall of elected officials. Although members of the public have a right to be heard at public meetings, and can publicly ask for a resignation, there is no statutory means to force an official to step down. 6. Willful neglect of duties is a crime. Vermont’s criminal statutes include a provision making it a crime for a public official to intentionally fail to carry out his statutorily mandated ministerial (as opposed to discretionary) duties. 13 V.S.A. §3006. A prosecutor may file a complaint for willful neglect of duty by a public official. Of course this is rarely or ever used, and in our view, should be reserved for serious, willful neglect that will cause harm to either the municipality or its citizens. In addition, 24 V.S.A. § 902 provides that " Unless otherwise provided, a town officer who fails or neglects to perform a duty imposed upon him by law shall be fined not more than $100.00." 7. Selectboard can increase bond requirement if it believes official poses a risk. Certain positions require officials to be bonded before they can take office. These include school directors, constable, road commissioner, collector of taxes, treasurer, assistant treasurer when appointed by the selectmen, and the clerk. The bonds are paid for by the town at amounts set by the selectboard. The law provides that if the selectboard at any time considers a bond to be insufficient, they may require, in writing, that the officer give an additional bond in such sum as they deem necessary. (Again, the town pays for the bond – but the official is required to find a company who will provide the bond.) If an officer fails to provide the new bond within ten days, his or her office is considered vacant. 24 V.S.A. § 832; 835 8. Town can be liable for damages caused by the neglect of the town clerk or the constable. The law recognizes an exception to the general rule of sovereign immunity (the principal that municipalities will not be liable for damages they cause). 24 V.S.A. § 834 provides that "a town shall make good the pecuniary damages which may accrue to a person by the neglect or default of the town clerk or constable of such town, to be recovered in an action of tort on this statute." This means that if the clerk negligently fails to record a deed and a landowner is harmed, the landowner can sue the town to recover damages. 9. Town officials cannot generally be sued personally. In order to encourage people to serve in local office Vermont law makes elected officials immune from suit for actions taken in their official capacities. Specifically, the law provides that when a person wishes to sue an appointed or elected municipal or town school district officer "the action shall be brought in the name of the town . . . or town school district. 24 V.S.A. § 901 The law offers additional protection by requiring the municipality to "assume all reasonable legal fees incurred by an officer when the officer was acting in the performance of his duties and did not act with any malicious intent." 24 V.S.A. § 901 10. Municipal employees and volunteers are protected from liability. A municipal employee cannot be personally sued for damages that arose from actions that were within the scope of his or her employment. Rather, such action must be brought "against the municipality that employed the employee at the time of the act or omission." In addition, the law requires the municipality to "defend and indemnify a municipal employee for any legal costs if a municipal employee is improperly named as a defendant in a proceeding." 24 V.S.A. 901a Note that an employee may be liable for damages for acts that were "willful, intentional, or outside the scope of the employee’s authority." 24 V.S.A. 901a (e) 11. Village trustee may not serve as the village tax collector. The law on 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. This means that, just as a selectperson cannot be the tax collector, a trustee cannot be the village tax collector. 12. JPs who live in the village automatically serve on the village 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). 13. All voters living in a village must be included on the village voter checklist. 14. BCA members appointed for political balance may not participate in tax appeals. Members of the board of civil authority who were added to the BCA 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 and §§1891-1909) Members so appointed shall have no authority with respect to functions of the board of civil authority that are not related to elections, such as property tax appeals or tax abatement hearings. 15. Reserve funds are under the control of the selectboard. 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 (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 for such purposes for which the fund was established without another town vote. If the legislative body wants to spend those reserve funds for any other purpose, then the spending must be authorized by a majority of voters at an annual or special meeting. 16. Elected officials do not benefit from the worker’s 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 the Department of Labor 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 board to fill an unexpired term. It is the category or type of position created by the statute that determines the exclusion. Therefore town treasurers 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. 17. Citizens may not petition to force a vote to repeal an ordinance. There is no way for citizens to force a selectboard to adopt, amend or repeal an ordinance (except for an ethics ordinance). Note that newly adopted ordinances can be submitted for a public vote upon petition by 5% of the voters, but the petition must be received within 44 days of the adoption of the ordinance. 24 V.S.A. §1973(b). If the voters disapprove the ordinance, the ordinance does not become effective. 18. Clerks must remember to hand out Civil Union Guide to those who apply for a civil union license. Vermont law requires that town clerks "provide a person who applies for a civil union license with information prepared by the secretary of state that advises such person of the benefits, protections and responsibilities of a civil union and that Vermont residency may be required for dissolution of a civil union in Vermont."18 V.S.A. § 5160 (f). Newly updated Guides to Vermont Civil Unions are being sent out to all towns this month. 19. There is no residency or citizenship requirements for marriages or civil unions. Anyone can receive a marriage or civil union in Vermont so long as both parties are over 18, not under guardianship and not closely related or already married or joined in civil union. It is good to warn nonresidents who seek civil unions in Vermont that it is easy to get a civil union in Vermont, but it may be hard to dissolve the civil union later. The Vermont Family Court only has authority to consider dissolution when at least one member of the couple has been a resident of Vermont for at least one year preceding the date of the final hearing of the dissolution. Five years after the civil unions law has come into effect it is clear that in many other states the courts will not consider a case asking to dissolve a Vermont civil union.20. Only Vermont justices of the peace may solemnize marriages or civil unions in Vermont. Some states permit non-residents to become a JP for a day in order to perform a marriage ceremony. In Vermont we have no law that would permit the appointment of a JP for the day for the purpose of performing a wedding or civil union – whether it is an in-state person or someone from out of state. Sometimes a Vermont justice of the peace will agree to sign the license prior to the ceremony so that the unofficial officiant can "perform" the ceremony. 21. Vermont does not require any particular ceremony for a marriage or civil union. There is no law governing what a marriage or civil union ceremony must include. Indeed, the couple is free to discuss with the justice, judge or clergy member their own ideas of what they want in a ceremony. What is important is that the officiant is present for the ceremony and is able to certify that that the parties entered into the civil union or marriage with mutual consent. 22. Justices of the peace do not have to perform ceremonies. Performing ceremonies (marriage and civil union) are discretionary functions of the office of justice of the peace. A justice may decide whether to perform a particular ceremony on a case by case basis, or may decline to perform all ceremonies or may decide only to perform ceremonies for family and friends. Of course, since a justice is a public official he or she may not discriminate on any basis prohibited by law (age, race, sex, national origin, religion, sexual orientation), and must apply his or her policy to both marriages and civil unions. 23. Clerks must issue licenses to out of state couples. Recently clerks received a communication from an organization called "Vermont Renewal" which states that clerks have can deny providing civil union licenses to non-residents that come from states that do not recognize civil unions. This is not true. Both the Vermont Attorney General’s Office and legal counsel for the Health Department agree that, just as they do with Marriage licenses, clerks must issue licenses for civil unions, and accept certification of out-of-state civil unions of state couples (as described in opinion 19 above). The issue of the legal effect of the Vermont civil union will be up to the court and legislature of couple’s home state. 24. School board must fill school vacancies in an open session of the board. A change in the law permits school boards to fill vacancies on the school board. 16 V.S.A § 424 (Prior law required the selectboard to fill the vacancy with advice from the remaining school board members.) While the open meeting law permits the board to interview candidates in executive session the decision must be by vote in the open meeting. 1 V.S.A. § 313 25. **** New zoning requirements will be effective September 1st **** Beginning September 1st many new provisions of Chapter 117 will come into effect and will supersede local ordinances. In many towns ordinances have not yet been amended to reflect the new requirements of the law, and in those cases the changes will be implied "by operation of law." You should consult your local attorney and take a look at the Vermont Planning Information Center (http://www.vpic.info/index.htm) for specific information about how that new laws will effect your bylaws. 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 only and should not replace the advice of legal counsel. Table of Contents | Past Issues of Opinions | Secretary of State's Homepage Tune-up for Towns Does Your Town Need a Tune-Up? (Excerpted from Tune Up for Towns, a publication of the Office of the Secretary of State for the full publication visit www.sec.state.vt.us or call Kathryn at 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? The checklist below includes items town officials might consider if they wanted to check to see whether things in town are up to snuff law-wise. Some of the items are not the law; they are simply recommendations based on others’ bad experience. The list below is just the start. Next month we will look at the Selectboard . . . Are you following the Open Meeting law? þ Special Meetings. Are special meetings of all local boards and commissions properly warned by posting in three public places, giving oral or written notice to each member of the board (unless waived, in writing), and the media (at least those that have requested such notice as well as the news director or editor of a local radio station or newspaper), twenty-four hours in advance?þ Regular Meetings. Are regular meeting dates and times established by resolution and put in the minutes of the board following its organizational meeting? How about a posted notice (more than legally required) announcing the same in the town clerk’s office?þ Executive Sessions. Do all boards entering executive session require a motion, citing the category as listed in 1 V.S.A. § 313, to justify the session? Do executive sessions stick to the subject of the executive session? Are they clear that they must leave executive session and enter open session before taking any binding action? Make a chart listing the last ten times the board entered executive session. Make columns for the reason and the action that ensued, and leave a place for a comment or two about whether the executive session was justified in the light of what you know now.þ Executive Session Findings. Do all boards make a finding (by including this information in their warnings) that "premature public knowledge would place the . . . municipality, other public body, or person involved at a substantial disadvantage" before entering executive sessions of the type described in 1 V.S.A. § 313(a)(1)? This includes executive sessions on contracts, grievances, and civil actions.þ Agendas. Is an agenda available for all meetings? (One ought to be if requested by a member of the public; one must be for special meetings, within the public notice itself.)þ Minutes. Are minutes prepared, and are they legally sufficient (see 1 V.S.A. § 312(b))? Are they completed and available to the public within five calendar days?þ Public Comment. Does each board (at any regular or special meeting) provide an opportunity for a public comment period? Has the board considered the adoption of rules governing this period? How is public comment handled in the minutes?þ Emergency Session. How often has any board held an emergency session? List the reasons that justified such sessions. Were the emergency sessions always to respond to an unforeseen occurrence or condition requiring immediate attention by the public body?þ Subcommittees. Are subcommittees, task forces, and special committees appointed for a particular purpose also aware of their responsibilities to follow the open meeting law? When such a subcommittee is formed, is any time spent explaining the law to its members? |
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Civics: Behind the Scenes |
Vermont Public Service Awards
Throughout the autumn of this year and the spring of next, the Secretary of State’s Office will be honoring long-serving appointed and elected local officials of all fourteen counties at the Vermont Public Service Awards. The purpose of the Vermont Public Service Award program is twofold - it gives our dedicated local officials the recognition they deserve - and, by highlighting the vital role our public servants play in our towns, it will, hopefully, encourage others to serve. In addition to presenting certificates of recognition to qualifying local officials, past honorees from the 2000 Awards who are still serving will also be honored. To qualify for the Vermont Public Service Award an individual must have served as an elected or appointed local official, or have been a volunteer firefighter or rescue worker for 20 or more years. The individual need not currently be in office or serving. All town clerks should have received letters soliciting nominations for the awards. Our office is now in the process of setting up the locations around the state to hold the award ceremonies. We are providing as many locations as possible so that attendees won’t have too far to drive. Some awards ceremonies will be held in the fall before the winter weather hits us and some will be in the spring. Soon we will let you know the dates and locations and your town can choose what is most convenient. Please note that although the deadline for nominations has passed, we will be (happily!) accepting names of qualifying officials throughout the summer. If you need help with research or the nomination forms and information explaining the program in greater detail, please do not hesitate to contact Kathryn Mathieson, Executive Assistant to Secretary Markowitz, at (802) 828-2148 or kmathieson@sec.state.vt.us. Kathryn will be making calls during the month of August to follow up on towns who have not yet sent in nomination forms and to check in with town clerks about possibly hosting events. Look for a complete list of locations and dates in the September issue of Opinions!Janel Johnson Table of Contents | Past Issues of Opinions | Secretary of State's Homepage |
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UPDATE! As of July 22, 2005, we have added the voter checklist data from Windham, Franklin, Bennington, and Windsor counties to the statewide checklist database. We have also conducted the initial training sessions in these four counties and each user has been given a draft user guide to the system. We will continue to add voter checklist data from the remaining counties during the week or two preceding the scheduled trainings. Each town clerk has received the complete training schedule and will attend either the training in his or her county or in a neighboring county (if there is a scheduling conflict). We have received some initial positive reactions to the new voter registration application—and we greatly appreciate helpful suggestions from town clerks to make additional improvements. We will continue to add or modify features based upon suggestions from users. We expect to complete the data collection from all towns and cities and the initial training for all users by the end of October 2005. We will then review the application, review additional input from users, and make any necessary modifications to the application. Not later than December 2005 we will certify that the first version of the system is complete and also distribute a finalized user guide with form screen prints to each town.
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Beyond the Divide, Conflict and Paths to Community
Success August 09, 2005 Event Sponsor: VT Council on Rural
Development VCRD is holding a roundtable to address the challenges of building unity in the face of social, economic and cultural change. This annual roundtable conference will look at the challenges rural communities face in building bridges between parts of the community to get things done. The conference will balance presentations by experts with participant discussions that analyze the ways that communities throughout Vermont have responded to challenging social, cultural and demographic differences. Participants will put their ideas on the table, share success stories, and learn from each other (and from providers) about tools and resources available to communities.
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Quote of the Month |
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"Some people are happy only when
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Let us know if: Send us a note via fax: 802-828-2496, Thank you for helping us keep Opinions running efficiently! Table of Contents | Past Issues of Opinions | Secretary of State's Homepage |
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August 15 Last day for Town Clerk to
electronically transmit a copy of the grand list, tax rates, and
assessed tax amount to the Director of Property Valuation and Review.
32:5404(b) August 16 Bennington Battle Day. 1:371 September 5 Labor Day. 1:371 September 14 VLCT Annual Meeting and Town Fair September 15 Last day for Town Clerk to remit to State Treasurer an accounting of dog and wolf-hybrid licenses sold and remit the license fee surcharge for an animal and rabies control program. 20:3581(f) September 15 Last day for the Board of Civil Authority to review most recent checklist to determine whether those listed are still qualified to vote. 17:2150(c) September 20 Last day for the Board of Civil Authority to certify to Secretary of State purging of the checklist has been completed. 17:2150(d)(7) October 10 Columbus Day. 1:371 October 25 State Withholding Tax Return is due (actual date by which return must be postmarked is shown on the printed form) if reporting less than $2500 per quarter. More than $2500 requires monthly report; more than $9000 requires semi-weekly report. 32:5842 October 31 Last day to file Form 941 (Quarterly Withholding Return) with the IRS. November 11 Veterans' Day. 1:371 November 24 Thanksgiving Day. 1:371 December 1 Last day to pay property taxes in towns that voted to collect interest on overdue taxes. 32:5136(a) December 14 Last day for Listers to notify persons of omissions from inventory. 32:4086 December 25 Christmas Day. 1:371 December 27 (70 days before Town Meeting) First day to warn the first public hearing if a charter adoption, amendment or repeal is to be voted on at Town Meeting. 17:2641(a), 2645(a) December 30 Last day for Listers to correct real or personal estate omission or obvious error in grand list, with approval of Selectboard. 32:4261 December 31 Town fiscal year ends, unless voted otherwise. 24:1683(c) Table of Contents | Past Issues of
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