Karl Rove v. Erin Brockovich:
Musings on Accountability and Why We Create Records
Last month I shared some of my pleasure reading. I also do
extensive professional reading in order to keep up with trends and
possible models. Sometimes it all seems like too much. I subscribe to
professional journals and newsletters; am on several listservs (MUNINET
being but one); and receive various studies, reports and fact sheets
from organizations such as the National Association of Government
Archives and Records Administrators and my recently discovered
favorite: NAID, The National Association for Information Destruction.
There is no way to keep up with all this information.
One publication I always take time for is Archivaria, the
journal of the Association of Canadian Archivists. It unfailingly has
well written articles of interest. A recent issue (Number 55, Spring
2003, okay they are running a tad behind) is no exception.
The issue had two articles on whether stronger right to know laws
lead governments to either not create, or to destroy, records.
Anecdotal tales suggested that this is the case, but a preliminary
analysis of selected Canadian agency and department records did not
find any changes in record creation that could be linked to new
freedom of information laws.
What the study suggested was that record creation is strongly
embedded in government culture. One reason is that we create records
of necessity; we need them to meet legal, regulatory or administrative
requirements. We need records to move processes forward and as
instruments of control in an increasingly complex organizational and
service delivery environment. We also create records to overcome
periodic organizational disruptions, such as changing administrations
or staff turnover.
Accountability plays a role, though not always linked to higher
constitutional mandates. Accountability may simply be the need to
protect yourself by documenting that you did what was right, even if
politically inexpedient. Finally there is the very human desire to
leave a lasting record, to anchor a place in history.
The good news that stronger right to know laws do not curtail
record creation is tempered by other findings. Record creation may
remain unchanged, but barriers to access may be raised. A government
function might be transferred to the private sector, which is not
governed by freedom of information requirements. Excessive costs for
copies, unwarranted extensions of response time, or over-broad
interpretations of exemptions may be used to discourage access.
I have, alas, seen examples of all these responses in Vermont. I
also see a changing context for how "accountability" is practiced. I
recently wrote a paper for a panel on gubernatorial records convened
at the annual meeting of the Society of American Archivists. The paper
addressed aspects of our experience with Governor Dean’s records
during the presidential primaries.
I noted that accountability is increasingly practiced by
surrogates, not citizens. Gov. Dean’s primary opponents, not concerned
citizens, came to the Archives. Their interest was in selectively
using the records to de-rail his candidacy. This was not a unique
experience and I cautioned my colleagues not to be distracted by
occasional tales of heroic citizens persisting in archival research to
achieve a public good. In today’s political climate we are more likely
to be visited by Karl Rove than Erin Brockovich. This generates
negative perceptions about records among public officials, a changing
cultural context that may influence recordkeeping more than stronger
freedom of information laws.
It is important that we, as public archivists, understand this
changing context of "accountability" and focus on ways to re-enforce
records as a valuable institutional resource.
The New England Archivists will be holding their Fall meeting at
the University of Vermont on October 14-15. There are several sessions
that may be of interest to municipal clerks, including one on how to
use outreach to improve perceptions of records. There will also be an
open discussion forum on government records chaired by the city clerk
of Nashua, N.H.
For more information go to: http://www.newenglandarchivists.org
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Past Issues of
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1. Selectboard and school board records should be maintained
separately in the town clerk’s Office. The town school district
is a separate municipal corporation from the town or city. The
records for each municipal corporation should be maintained
separately to avoid confusion.
2. Clerk is not required to
search and copy. The public records law only requires the
custodian of the records to make the records available for "public
inspection" and copying (if you have copy equipment) during your
regular office hours. The custodian may, as a courtesy, collect,
copy and send the requested records, but this is a courtesy only -
it is not required by law.
3. Public has a right to be heard at open meeting. Public
boards must allow the public reasonable opportunity to express its
opinion on matters considered by the public body during the meeting,
subject to reasonable rules established by the chair. 1 V.S.A.
§312(h) Vermont law makes it clear that a board cannot eliminate all
public comment; however, it does not clearly articulate the limits
of the board’s control over public comment. Not surprisingly, boards
and citizens may differ in interpreting how much comment and what
type of rules provide "reasonable opportunity" to participate. What
makes it even more challenging is that the appropriateness of the
rules governing participation may change depending upon the matters
under consideration by the board. At a minimum, we suggest that the
board chair should articulate the procedures for public comment and
the board’s rationale for the procedures at the beginning of each
4. Non-residents may participate in public meetings. The rule
that only voters can speak unless the assembly votes to allow the
person to participate applies only to the Annual and Special
meetings of the town. The open meeting law provides that members of
the public (not just voters) have the right to speak on public
issues at meetings of public bodies. 1 V.S.A. § 312
5. Assistant treasurer must be reappointed at new term.
Vermont law requires the treasurer to reappoint his or her assistant
treasurer each time he or she is re-elected or re-appointed.
24 V.S.A. §1573 The reappointment must then be filed with the
town clerk. A new oath of office should be taken and filed at the
same time. If an assistant treasurer leaves office or is terminated,
a revocation of the appointment should be filed with the town clerk.
6. School district clerk must appoint an assistant clerk.
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. The assistant clerk is authorized to perform all
of the duties of the clerk in his or her absence and the clerk is
responsible for his or her assistant’s official acts. The assistant
clerk must be sworn in before taking office. 16 V.S.A.§551 and 24
7. Towns are not required to use bid process. There is no
state statute that requires towns or town cemeteries to use a public
bid process. However, many towns have adopted public bid policies,
and some towns include bidding requirements in their charters.
Whenever a public official may be an interested bidder, a public bid
process should be used to ensure that the public has confidence in
the selection process. Note that the law requires public bidding in
many school district contracts.
8. Board members who bid on town contracts must not participate
in discussion or vote on contract. Whenever a board member
wishes to bid on a town contract the board member should remove him
or herself from the board for the purpose of the discussion and
vote. To avoid even the appearance of undue influence the board
member should not be present during the discussion and vote.
9. Board members should stay away when board decision
could affect their pocketbook. Whenever a board member has a
financial interest in a decision of the board he or she serves on,
the board member should not only not participate in the decision but
he or she should not be present during the discussion of the matter.
This is because it is important for the public to feel confident
that the decision was made in the best interest of the community,
and that the interested board member did not exercise undue
influence on other board members. Note that there is no law that
regulates this type of conflict of interest outside a quasi-judicial
proceeding. However, the law permits communities to adopt ethics
policies that would reach these types of conflict of interest either
by vote of the board or by a voter petition. 24 V.S.A. § 2291
10. Selectboard member/ justice of the peace is only entitled to
one vote on the Board of Civil Authority. Even though the BCA is
made up of justices of the peace and selectboard members and the
town clerk, a person who is elected to serve in more than one of
those offices can only fill one seat on the board. This means that
when there is a dual election, the number of board members on the
full board is 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 select board 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. A person
cannot cast two votes by virtue of being elected to two different
offices. NOTE: For tax appeals, at least three members must be
present and then a majority vote of the board members present.
11. Vacancy in independent justice position is filled by governor
without recommendation. 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. When 17 VSA
§2402 was amended to allow citizens to petition for the office of
justice of the peace as independents, section 2623 was not amended
to address the treatment of vacancies. 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.
12. BCA has flexibility when scheduling tax appeal hearings.
32 V.S.A. §4404 requires tax appeal hearings to start within the 14
days after the last date allowed for a notice of appeal, but it does
not require that the hearing be completed on that date. This means
that the BCA can use the initial hearing to set a schedule of
hearings to be held at later dates. The BCA must then "continue" the
hearing to each subsequent date. Note that whenever a hearing
is postponed at the request of an applicant rather than convened and
then continued to a date certain as described above, 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 insist on going forward on the scheduled
13. BCA must hold hearing even in absence of appellant. If a
person bringing a tax appeal to the BCA chooses not to attend the
hearing, the BCA must still hold the hearing, consider the
appellant’s written submission, inspect the property and render a
decision. However, 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) If this were to occur the applicant must be clearly
told the consequence of his denial of inspection and a follow up
letter indicating that the appeal was deemed withdrawn should be
sent to him or her.
14. Tax appeal is not appropriate venue to challenge exemption
decision. The initial decision about whether a property
qualifies for tax exemption is made by the listers. The statutes do
not set out an appeal process, and do not expressly authorize the
BCA to hear appeals of this issue. 32 V.S.A. chapter 125 Although it
is logical that an appeal of a determination of exemption could go
to the BCA, the law does not give the BCA authority to decide tax
exempt status. Rather, the statutes authorize the BCA to address
issues of value and equalization. Whenever the law does not
articulate an administrative appeal, the rules of civil authority
provide for an appeal to Superior Court. And, indeed, there are many
cases decided by the Superior Court (and Supreme Court) involving
whether a particular exemption is appropriate.
15. Voters cannot force a vote on whether a town should apply for or
accept a grant. Voters cannot petition the selectboard for vote
to force the board to apply for or sign grant documents. That is
because decisions about whether to apply for or accept grants are
generally left up to the discretion of the board. A board that
wishes to get public input on such a decision can conduct an
informal poll or can ask for a "straw vote" or consensus of opinions
at a public meeting held for that purpose. Note that in some cases
the terms of a grant may require a public vote, in which case such
vote can be held as part of a special or annual meeting of the
16. No single board member has any authority to act alone. 1
V.S.A.§172 states that whenever authority is given to a board with
two or more individuals, the board can only act when a majority
authorizes the action. Board members have no authority independent
of the board as a whole. This means that individual board members,
even the chair, may not act on his or her own. An official who acts
on his or her own may run the risk of personal liability because the
official is acting outside of his or her authority as a board
17. Board correspondence must be authorized by the board.
Chairs of municipal boards do not have authority to act on their own
making representations for the board. This means an individual board
member may not write a letter using town or official stationery,
representing that the letter is on behalf of the board without a
motion passed at a duly warned meeting authorizing the board member
to send the letter on behalf of the board. 1 V.S.A. § 172
18. Motion fails without majority of board vote. Unless
otherwise provided by law (for example, school boards follow a
different law), when authority is given to three or more persons,
the concurrence of a majority of the total number is required to
pass a motion, and not just a majority of a quorum. 1 V.S.A. § 172
For example, a five-member board can act only if the motion
proposing the action receives at least three affirmative votes.
Anything less, and the motion fails.
19. All checklists must be purged this September. In
September of each odd-numbered year (including this year, 2005), the
town clerk must send a letter to the secretary of state to confirm
that the BCA has completed challenge letters and purged the
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 challenge letters
to individuals who have moved out of your town.
20. It is time for political parties to reorganize! Political
parties must reorganize in the fall of each odd numbered year
(including this year, 2005). 17 V.S.A. (Chapter 45) §2301 et seq.
Organizing the reorganization is the responsibility of the state
committees. The parties were sent a memo explaining the process and
including forms in June. If party members have questions, direct
them to the state party. The telephone numbers are available on our
21. Non-profit organization serving town can keep finances
private. No law requires a private business or non-profit to
open its financial books for public inspection. It would be
reasonable, however, for the selectboard to ask a nonprofit that
serves the town to justify it request for an increase in payment
from the town. As part of that justification the board may ask to
see the financial books of the organization.
22. Non-profit organizations can hold raffles and lotteries.
Vermont law generally prohibits gambling but allows non-profit
organizations, including municipalities, to organize and execute
games of chance for the purpose of raising funds for civic
undertakings. 32 V.S.A. § 2143 and 10201(5) Check the law for
specific prohibitions (ex. awarding alcohol, using gambling
machines, holding too many casino nights in one year, etc . . .).
Note that political parties may also organize and execute games of
chance to support their activities.
23. Only adults may organize or execute a game of chance. A
nonprofit organization that is organizing a lottery or casino night
must be careful not to allow any person who is under 18 to help out
in the gambling activities. A person who is under age may work
performing services at the event so long as they are not related to
the execution of the game of chance. 32 V.S.A. § 2143 and 10201(5)
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? Part 2
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
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 review the checklist
Last month we provided a checklist of items to consider to ensure
that you are following the legal requirements of Vermont’s open
meeting laws. This month’s checklist will cover considerations for
selectboard. 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. Next month we will
look at the town clerk . . .
A Legal Tune up for Selectboards:
ž Does the board annually designate an official
newspaper for the publication of warnings and other official
business, as required by 17 V.S.A. § 2641(b)?
ž Does the board chair (or person under his or her
charge) keep a "single record of all orders drawn by the board
showing the number, date, to whom payable, for what purpose and
the amount of each such order?" See 24 V.S.A. § 1622.
ž Have all newly elected selectboard members (also
constables, listers, grand jurors, fence viewers, and justices
of the peace) taken the oath of office before taking office? Are
the oaths kept by the town clerk?
ž Has the selectboard required and set the amount
of a bond for the school directors, constable, road
commissioner, collector of [delinquent] taxes, treasurer, and
town clerk? Have the records of these bonds been filed with the
clerk? Read 24 V.S.A. § 832 for more details.
ž At its organizational meeting, did the
selectboard elect a new chair? Did they appoint three fence
viewers, at least one poundkeeper, an inspector of lumber,
shingles and wood, a weigher of coal, and a tree warden? See 24
V.S.A. § 871.
ž Have all vacancies in elective and appointive
office been promptly filled? Has a notice that a vacancy in an
elective office was created been posted within ten days of the
creation of the vacancy? See 24 V.S.A. § 963. Has the board
given any thought to town officer recruitment as an active
policy? If a citizen walks into the town office and expresses an
interest in public office, is there any handout or official to
direct the citizen’s interest—even an application form the
citizen can complete and have kept on file? Has the town ever
held a general public session to explain the roles of the
various officers, in order to engender greater interest in
ž Has the board adopted or considered adopting
personnel rules (optional; not mandatory, but worth exploring)?
See 24 V.S.A. § 1121. Does the town maintain a bulletin board
for employees which includes all of the required notices and
posters (i.e. sexual harassment policy, notice of
non-discrimination, worker’s compensation notice, etc . . .)?
ž Has the board adopted procedural rules, such as
Robert’s Rules for Small Boards, for the conduct of its
meetings? Does the town own a copy of Robert’s Rules that the
selectboard can use when they need it, in the midst of a
ž Is the town adequately covered by insurance? How
long has it been since your insurance agent has checked to see
if your policies are up to date? How long has it been since you
put the insurance out to bid to see if another company can offer
you lower rates or better coverage for the same price?
ž Does the workload of the chair and other members
justify consideration of the hiring of an administrative
assistant or town manager?
ž How often does the selectboard meet with other
town officers and employees? Is there a neutral forum where
elective and appointive officials can meet and share ideas about
the direction the town is taking?
ž Has an inventory of all real and personal
property owned by the town been compiled (optional, not
mandatory)? Is there a policy about how to treat this property?
Has the board written a policy on the use of
public property that covers town land, buildings and equipment?
Vermont History, Facts & Fun
On Monday, August 29, the Secretary of State’s Office hosted a
kick off party at the Vermont Historical Society to celebrate the
newest publication from our office – Vermont History, Facts & Fun.
This activity booklet is designed to help 3rd
-5th graders learn about Vermont’s amazing
history, culture and geography. Students, teachers and history buffs
came together at this event to honor those students who helped put
the book together and take a look at the finished product!
Copies of Vermont History, Facts & Fun are available for
elementary school children as part of their curriculum on Vermont
history which is typically taught in the 4th
grade. A copy of the booklet has been sent to all Vermont elementary
schools and the orders are starting to pour in! If you would like a
copy in the Town Clerk’s office, please feel free to contact me at
email@example.com or call
Within the month, our newest publication will also be available.
How a Bill Becomes a Law is an engaging comic-like booklet
designed for middle school children. This booklet walks readers
through the bill-making process and demonstrates how they can become
involved. Watch for updates on this publication!
Vermont Public Service Awards
The Secretary of State's Vermont Public Service Awards program
honors local officials who have provided their communities with
20-plus years of service.
We are busy gearing up for the VPSA awards ceremonies which will
occur in towns throughout Vermont during the autumn and spring of
2005-06. If you are still interested in participating, please
contact Kathryn Mathieson at 802-828-2148 or email her at firstname.lastname@example.org
for more information and to obtain nomination forms.
If you have completed your forms, please make sure to let Kathryn
know which ceremony your town will be attending. Thank you for
Event Date and Location
Autumn 2005 VPSA ceremonies:
October 6 in Middlebury
October 11 in Johnson
October 13 in Montpelier
October 20 in Springfield
October 27 in Lyndon
November 2 in Rutland
November 9 in Fairlee
November 15 in Burlington
Spring 2006 VPSA ceremonies:
April 6 St. Albans
April 12 Barton
TBA West Dover
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