Voice from the Vault
By Gregory Sanford, State Archivist

Hurakan was the Mayan god of thunderstorms and whirlwinds, as well as the creator of earth and the life upon it. Hurakan has been in all our thoughts of late. The scale of destruction and human tragedy suffered this hurricane season is almost beyond our comprehension.

Though our attention has rightfully been focused on the disruption and loss of life, widespread destruction has also been visited upon records. Pictures of the destruction to archives and libraries are disheartening (see: http://www.coshrc.org/arc/hurricane-MSvisit-photos.htm). One of the early reports out of Louisiana indicated that the New Orleans Notorial Archives had been damaged and its records, including early land records and current title records, flooded. Other early reports noted the extensive damage to court records throughout the region, as well as to local manuscript repositories and archives.

Steve Bruno, custodian of the Notorial Archives, was quoted in the New Orleans Times-Picayune as saying "there won’t be any [real estate] transactions until this problem is solved. Sure, a lot of people are going to want to sell and a lot of speculators are going to want to buy," but without the records "it isn’t going to happen."

The loss of court records also had an immediate impact. Inmates were evacuated from New Orleans flooded jails, but without court records (or a court system for that matter) there was no way to tell what charges each inmate faced. Accused murderers were mixed in with those facing drunk charges. But without court records it was, in the words of one official, like "taking a jail and shaking it up in a fruit-basket turn-over, so no one has any idea who these people are or why they’re here."

Court records in general took a heavy hit and a September 9th New York Times article noted that "a vast universe" of court records had been lost. "Court proceedings from divorce to murder trials, to corporate litigation, to custody cases will be indefinitely halted and when proceedings resume lawyers will face prodigious—if not insurmountable—obstacles in finding witnesses and principals and in recovering evidence." Beyond court records, it was reported that a third of Louisiana’s lawyers lost their offices

The scale of destruction and the lack of coordination delayed attempts to salvage records, creating additional problems. Mold, for example, begins to form fairly quickly after water damage, particularly in a hot and humid climate. The Notorial Archives, had a disaster recovery plan calling for the use of refrigerated trucks to freeze-dry water-soaked documents to allow for later recovery. The trucks, however, were turned back by troops trying to keep people away from the flooded area. The records were eventually retrieved and are now housed in refrigerator trucks or at a freeze-dry facility in Chicago.

In truth the degree of destruction over such a wide area undid most plans. As H.T. Holmes, the Mississippi state archivist reported, "None of our reactions are following the textbook recovery lessons, but this ‘melt-down’ situation over such a huge area is not a situation previously thought probable by most folks down here." A recovery team of archivists visiting Mississippi three weeks after Katrina reported that "collections typically were either lost entirely or survived the storm but were damaged subsequently by high humidity and mold…Much of the damage to records came from a storm surge that swept through buildings, destroying their contents, and then retreated. This suggests that conditions may be different in New Orleans, where the water resulted from a broken levee rather than a storm surge and where damage has probably resulted from standing water rather than surging water."

The archivists visiting Mississippi reported that "there was little evidence of paper in the debris surrounding homes and business. Shreds of fabric and plastic were caught in trees, but it appears that the power of the storm surge completely destroyed paper." Interestingly, the news story on court records reported that law offices with computers (and off-site back-up) are better positioned to recover than those offices totally reliant on paper records.

Archivists have launched a variety of efforts to assist in document recovery and restoration. The Society of American Archivists has established a grant fund to support stricken repositories and is accepting contributions at: https://www.archivists.org/katrina/contribute.asp The Council of State Archivists (nee the Council of State Historical Records Coordinators) provides a variety of flood-related information on its web site at: http://www.coshrc.org/.

Being in Vermont allows for some distant musings on the impact of hurricanes on records. We have, for years, tried to alert state and municipal officials, as well as citizens, about the value of archival records. The loss of records relating to titles to land, to the court system and to local history provides a real life, and tragic, example of that argument.

How current are our own disaster plans and do they envision a broad scale catastrophe or only one localized to our building? What if the land-based phone system has been destroyed, or the roads are impassable or the area sealed off for emergency response reasons? Have we built mutual support plans when more than one repository is damaged (the Rutland County Clerks’ Association was working on a county-wide response team a few years ago; it would be interesting to hear how their plan has progressed).

The survival of computer records, at least those which were backed-up outside the immediate region, suggests that properly managed electronic records may have some advantages in the event of a disaster. I hasten to add, however, that the key phrase is "properly managed." We have already experienced a wide range of "quiet disasters" as improperly managed electronic records are lost with the implementation of each new "generation" of hardware and software. Widespread loss of electricity or phone lines may also complicate the restoration of computer systems (does your disaster plan address how you would respond to the loss of computer hardware even if the software survived off-site?).

The events of the last few weeks should make all of us revisit our disaster mitigation and response plans. We should also give pause to celebrate the dedicated archivists and recordkeepers of the Gulf coast who are struggling to save their records even when confronting the loss of their own homes and communities.

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2. Property purchased by a church after April 1st is not exempt until the next tax year. Although churches and other property used for religions purposes is exempt from property tax, when a church purchases property this exemption does not begin to apply until April 1st following the purchase. The law does not provide a mechanism for changing exempt status in the middle of a tax year. Indeed, a church cannot even seek abatement of these taxes since the change in status of the owners is a statutorily recognized reason to grant abatement. 24 V.S.A. §1535 Only when the listers prepare the next year’s grand list, the property can be listed as exempt under 32 V.S.A. §3802(4) and 3832

3. Property tax exemptions for volunteer fire department property must be voted at Town Meeting. Volunteer fire departments that are independent of the town (i.e. not a town department) are not automatically exempt from property taxation. Rather, the exemption can be voted for 10 years the first time and thereafter for five-year periods. The Vermont Listers Handbook provides a good discussion of property tax exemptions including a chart giving the source of funding for education property tax liability for locally voted exemptions. The handbook also includes a chapter on properties that are exempt under state or federal law, and another chapter on exemptions that must be voted by the town. 32 V.S.A. §3840

4. Town vote to exempt property will not remove assessed value from calculation of town’s education tax liability. When a town votes to exempt property from taxation it can only exempt the property from municipal tax liability. The town vote will not remove the assessed value from the calculation of the town’s education tax liability, and the property owner will not be exempt from paying the education tax on his or her property. 32 V.S.A. § 5404a

5. Board of abatement may act by majority vote of a quorum of the board. Most municipal boards require the concurrence of a majority of the board to act. However, 24 V.S.A. § 1533 provides that only a majority of the quorum of a board of abatement is needed for it to decide a matter. Figuring out how to calculate what constitutes a quorum of the board of abatement can be confusing. Like other municipal boards, a quorum of the board is a majority of all of the members of the board. Members of the board of abatement include the BCA (clerk, selectboard, and justices), the listers and the treasurer. The number of justices depend on the size of your town - so presuming you have 10 justices, plus three selectboard members and three listers, the total number of the board would be 18 and a quorum of the board would be 10. The town would therefore need 10 people in order to convene the meeting of the board, but it would need only six to agree on a particular course of action. In the alternative, the board of abatement is deemed, by law, to have a quorum if a majority of the listers and a majority of the selectboard members and treasurer are present.

6. Board of abatement exercises discretion when deciding whether to abate taxes. 24 V.S.A § 1535 sets out a number of circumstances in which a board of abatement may choose to abate the taxes of a property owner. The statute does not require abatement under any circumstances, and courts have affirmed the board’s right to exercise discretion in these matters. Abatement is meant to be an equitable remedy, used only in the most unusual cases - as in a fire or where a survivor is temporarily unable to access the assets of an estate while it is in probate. It is not meant to be a way for the town to subsidize taxpayers who can no longer afford the taxes on their property. On occasion the delinquent tax collector may request an abatement to clear up his or her records when a delinquent tax payer cannot be found or if the taxpayer’s property has no value and the delinquent tax payer has no other assets to be taken.

7. Board may grant partial abatement. The board of abatement may abate, in whole or in part, taxes from the current or prior years so long as one of the statutory reasons for granting abatement applies. When taxes from a prior year are abated, the board of abatement may choose to give the taxpayer a cash refund, or the board may provide a credit towards the current and future year’s taxes. 24 V.S.A. § 1535

8. Conditional abatement may be permissible. Recently, a town asked whether a conditional abatement can be granted. That is, whether the board could agree to abate taxes unless the property is sold within the tax year, or unless the property owner’s insurance company compensates the owner for the loss. The law is not clear on this issue. However, since the law does not clearly preclude this approach, until a court considers the issue we advised that the board could go ahead with a conditional abatement when a particular situation might warrant such an approach. 24 V.S.A. § 1535

9. Town will be liable to pay state education tax when it abates town and school tax. The Board of Abatement has a lot of discretion when it is deciding whether and how to abate taxes on a property. While the board of abatement may only abate taxes for the reasons listed in the statute (see 24 V.S.A. §§ 1533-36) if the board chooses to abate it may do so in full or in part. This means the board can choose to abate only the town portion of the taxes. If the board abates the entire tax (including the education tax) the town will still be liable to pay out to the school and state (if applicable) the education portion of the tax amount.

10. No voter approval is required for borrowing for highway equipment. Municipal financing law was amended as of July 1, 2001, so that a Selectboard can now approve borrowing for purchases of equipment for highway equipment without going back to the voters for approval. 24 V.S.A. §1786a. This is a very limited delegation of powers and can only be used for equipment to maintain or construct highways or bridges within the town.

11. Unused highway funds may be carried into the next fiscal year, but they may only be used for highway purposes. 19 V.S.A. § 312 provides that "the funds raised from town highway taxes shall not be used for any purpose other than that for which the tax was voted, subject to the provisions of this chapter. If in any year money so voted is not expended, it shall be applied for the same purpose the following year." Accordingly, unlike other town funds which may not be carried forward from year to year, a town with excess highway funds may spend them in the next year without additional voter approval.

12. Selectboard can decide to pave a road without town vote. It is the responsibility of the selectboard to construct and maintain the roads of the town. Although there is a public process involved when a board wishes to change the classification of a town highway, no public process is required (beyond a decision made during a public meeting of the board) when the board decides that a particular road should be paved. 19 V.S.A. § 304.

13. Landowner can gate a town road with selectboard’s permission. The selectboard can create pent roads in a town by granting permission to a landowner to erect stiles, or unlocked gates and bars on a town road. Landowners used to request the board to permit them to gate a road when they owned both sides of a highway and used the fields for grading. Today, most requests for pent roads are made in an effort to slow down ATV traffic on class 4 roads and trails. The board can make regulations governing the use of pent roads and can establish penalties not to exceed $50.00, for noncompliance. The permission to pent a road must be given in writing and it must be recorded in the town clerk’s office. 19 V.S.A. § 304(5)

14. Parking regulations must be made by ordinance. The selectboard has the authority to regulate parking and on town roads. Although the law specifies that the board can make "special regulations as to the operation, use and parking of motor vehicles on highways under their jurisdiction," courts have said that these regulations must be made by ordinance. 19 V.S.A. § 304(6)

15. Selectboard may appoint acting zoning administrator. When a zoning administrator has a conflict of interest or needs a permit for his own property, the planning commission may nominate, and the selectboard may appoint an acting zoning administrator for the limited purpose of handling the matters in which the zoning administrator feels he or she has a conflict. 24 V.S.A. §4448.

16. Selectboard should adopt policy for use of town property. It is a best practice for each legislative body, selectboard, school board, or other public body that owns buildings, to adopt a policy outlining requirements for use of town or school property by other groups. It is constitutionally permissible for a board to prohibit any and all use by outside groups. However, the town must have a good reason to permit some groups, but not others, use of town property. For example, it is reasonable and acceptable to limit use of certain rooms or spaces to groups of less than 30, or to meetings ending not later than 9 p.m. However, it may be discriminatory to allow the Boy Scouts to meet in a room, but to turn down a political caucus or a religious organization.

17. Village tax rate set using town grand list. Most villages in Vermont set the village tax rate using the grand list assessments prepared by the town listers. If a resident grieves his taxes, and the listers or BCA make an adjustment lowering the property assessment, the grand list will be adjusted and the village must also lower the assessed amount.

18. A BCA inspection committee must view entire property. As part of the tax appeal process, three members of an inspection committee must inspect the property that is subject to the appeal and report back to the full board of civil authority that is considering the tax appeal. If, after notice, an appellant refuses to allow the inspection committee to inspect whatever parts of the property (both outside and inside) it wants to inspect, the appeal shall be deemed withdrawn. 32 V.S.A. §4404. Additionally, although it is best if the inspection committee would visit the property all together, this is not mandatory, and they can return a second time within the 30 days given for the inspection, if necessary.

19. BCA may increase, decrease or sustain the appraisal upon appeal. Once the taxpayer raises the issue of the property’s valuation, the BCA must make findings to support what the BCA believes to be the correct valuation of the property, even if that amount is higher than the lister’s assessment. The same is true for further appeals to the State Board of Appraisers or the Superior Court. 323 V.S.A. §4409

20. Voters can vote to disapprove a newly adopted ordinance, but it may not initiate an ordinance (except for an ethics ordinance) or initiate the revocation of an existing ordinance. The selectboard is given primary authority for the adoption and revocation of ordinances for the town. There is no public hearing process required when an ordinance is adopted. However, once adopted, the board must post the ordinance (or a concise summary of it) in five public places, and publish it in a local newspaper, so that the public can decide whether to petition for a vote on the issue. If, within 44 days, the voters present a petition signed by 5 percent of the legal to disapprove the ordinance, the board must hold a special election so that the voters may decide whether the ordinance should become effective. 24 V.S.A. §§1972, 1973 (Chapter 59)

21. Registered voters in Vermont do not lose residency for voting purposes solely by living outside of the United States. Once a person has registered to vote in Vermont, he or she can keep that residency for voting purposes even if he or she lives outside of the United States with no intent ever to return to the states. Until the voter returns to reside in the United States, or gives up United States citizenship, the voter can remain on the checklist and vote by absentee ballot in the town in which the voter last resided, regardless of his or her reason for living outside of the United States. 17 V.S.A. § 2122

22. Overseas voter who returns must register to vote in the jurisdiction of his or her current residence. Once an overseas voter returns to the United States he or she must register where the voter resides. 17 V.S.A. § 2122 For example, if a member of the armed forces who has been in Germany for 20 years retires and moves back to the United States, that person must register to vote in the place in which he or she now resides. If you send a letter as part of your purging process and the person returns your form giving another town or state as his or her residence, you can remove that person from your checklist.

23. A citizen who wishes to be added to the checklist cannot refuse to take the voter’s oath. When the 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 only needs to take the oath once, but each citizen must take it before being added to the checklist for the first time in Vermont. (If you move to another town in Vermont, you do not need to take the oath again.) A notary public, member of the board of civil authority, or other person authorized to administer oaths must complete and sign the form stating that the new voter has sworn or affirmed the oath and the form must be received by your Town Clerk before the new voter can receive an absentee ballot or vote in person for the first time in Vermont.

24. Permits are required for large public events. 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.

(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 Kathryn at 802-828-2148)

þ Have you reviewed and posted your fee schedule to ensure that you are charging the proper fees and the public is aware of them?

Tip of the Month

"I send an email when my office will be closed for training, etc. I know at least one clerk faxes people - that works too if you can figure out how to program the fax machine. I just set up a list in my email address book and ask attorneys if they want to be included. Several have told me that they appreciate it."

Civics: Behind the Scenes
By Janel Johnson, Civics Outreach Coordinator

The Secretary of State's Vermont Public Service Awards (VPSA) program honors local officials who have provided their communities with 20-plus years of service. Often times those who serve their town, village or city do not receive the recognition and thanks of which they are so deserving. But what would we do without these hard-working individuals who devote hours of their week and years of their life to making sure things run smoothly in Vermont's towns and cities?

We have begun our fall VPSA awards ceremonies which will occur in towns throughout Vermont during the autumn and spring of 2005-06. So far, over 1,000 names have been submitted to our office! Approximately one-fourth of these nominees are still serving, although it has been five years since the last round of awards. Those still sereving will receive an extra recognition at the ceremony.

Please note that there have been several scheduling changes for some of the events. (These are bolded and marked with an asterisk below.)

Thank you for your help in making these award ceremonies a very special occasion for the award winners! Remember that it is not too late to participate! If you are still interested in submitting nominations from your town, please contact Kathryn Mathieson at 802-828-2148 or email her at kmathieson@sec.state.vt.us for more information and to obtain nomination forms.

April 6 St. Albans
April 12 Barton
TBA West Dover
*TBA *Springfield

(1) The Office of the Secretary of State sends out invitations to the event. After nominee invitations are sent out, a packet containing extra invitations for interested parties is sent out to all town clerks who nominated individuals from their towns. State representatives and senators from your area are also invited.

(2) Please note the schedule changes in the box to the left. All invitations sent out reflect the correct date.

(3) If the event you are attending follows a MOM Seminar (Johnson, Rutland, and Fairlee), there is NO cost to attend the VPSA ceremony.

Hurricane Katrina Update

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October-December 2005 Calendar