In my youth I devoured the Hardy Boy mysteries. While I occasionally bemoan my advancing years, I am glad my youth embraced the Hardy Boys before the old titles were updated, starting in 1959. The Frank and Joe Hardy of my youth had chums, rode in coupes, fought "swarthy foreigners," or confronted mad scientists who put promising technologies to questionable ends. This was particularly true of electricity. As the country celebrated the growing number of laborsaving devices powered by electricity, Frank and Joe risked life and limb confronting darker applications of this force.

More often than not their wired opponents were once decent men (I don’t recall women villains) who became deranged by tragedy or injury. I am sure many of us remember the bewhiskered Eben Adar from The Disappearing Floor (1940) who invented furniture that glowed and automatically turned off when you slept and who grew plants electrically (he is also memorable for having a soft spot for the Boys' formidable Aunt Gertrude). As these inventions suggest Eben wasn’t really a bad guy; he wanted to use technology to improve society. Alas a temporary mental disarrangement left him the pawn of a gang of thieves.

The early Hardy Boy books are a wonderful example of our fascination with the promise of technology. Even in the hands of villains, technologies such as those applied to electricity held limitless possibilities.

What occasioned these thoughts was reading H. 792, the bill seeking to implement many of the Challenges for Change recommendations for making government more efficient and effective. The number of times "electronic" or "electronically" appear in the bill would have made Eben Adar proud. It is a sign that our faith in technology is undiminished; information technology will surely lead us to the promise of improved services for less money.

"But wait," says your inner Hardy Boy, "haven’t we been spending millions on information technology for decades? Shouldn’t we already be effective and efficient?" That sounds like a mystery.

Despite having once read the Hardy Boys’ Detective Handbook (1959) my initial sleuthing on IT costs was not up to Frank and Joe’s standard. I did call on a couple of chums (to protect their identities let’s call them Chet Morton and Biff Hooper) who provided two different sets of figures. Chet, for example, used the 2007 report on Charting the Course Toward Vermont State Government’s Information Technology Future which identified $36,513,185 in IT expenditures in Fiscal Year 2005. Biff, however, looked at agency budgets and reported $4,558,981 in IT expenditures in FY 05. I suspect the difference might be because Biff looked at the Department of Information and Innovation’s (DII) budget, not at broader IT investments and maintenance expenditures, but in truth I remain clueless.

Still, the mystery (let’s call it the Case of the Missing Efficiencies) remains. If IT is the solution to inefficiency, after spending hundreds of millions on computer systems over the years shouldn’t we be pretty darned efficient by now?

One clue is the complex inter-relationships among government agencies and departments. An obvious example is the interplay among the judiciary, law enforcement, corrections, and social services. If the workflow among these distinct entities is not understood or IT "solutions" are employed only within one unit, then efficiencies not only won’t be found, but new inefficiencies might be created. Our record analysts, for example, found one agency hand-entering data into its computer system – data that is created in a system maintained by another agency. Because the two systems are not compatible, the information is transmitted on paper by a fax machine on a weekly basis. This is not, alas, an isolated event. Our agencies often find themselves replicating data and working around technological inefficiencies caused by inadequate or narrow planning.

1. Town clerk may charge for faxing documents but cannot charge for receiving faxes. No law requires a town clerk to fax documents, but if he or she chooses to do so, the clerk may establish a reasonable fee for the service. In contrast, if the town has a fax machine, there is no law that would permit the clerk to charge for receipt of faxes.

2.  The selectboard is only required to call a vote on petitioned articles if they cover a topic that the voters have the right to decide. All articles involving issues that Vermont law states the voters or electorate are capable of deciding and binding the town, must be placed on the warning by the selectboard. Examples of binding articles include increasing the size of the selectboard or school board, zoning bylaws, establishing special reserve funds, funding approval for particular equipment or improvements. All of these categories of articles are specifically mentioned in the Vermont statutes as being for the electorate or voters to decide by vote. The board may warn "advisory" or non-binding articles that are petitioned, but it is only required to do so if they relate to town business. A recent Supreme Court case clarified the rule by saying that a town did not have to warn a petitioned article directing the legislative body to inform the legislature that the citizens wished it to consider a law requiring parental notification when a minor sought an abortion. Clift v. City of South Burlington.

3. Social service agency funding requests approved by the voters are for the new fiscal year. When the voters approve an appropriation for a social service agency the appropriation should be paid to the agency at the start of the new fiscal year. In some cases the selectboard will negotiate a different payment schedule based on the cash flow needs of the agency and the needs of the town.

4. Town clerk must record properly submitted deed and survey. A town clerk must record properly submitted deed and survey (conforms to statutory requirements in 27 V.S.A. §341) even if an abutter objects that it contains incorrect information. The recording function is a ministerial duty that allows the documents to provide notice to others. If a correction needs to be made, a new corrected deed or survey must be submitted for recording.

5. If a justice of the peace resigns, moves out of state, or dies, a vacancy is created. The law provides that the governor may appoint a qualified person to fill the vacancy. The statute allows the town committee of the political party of the person whose death or resignation created the vacancy to meet (with five days notice) to make a recommendation or recommendations to the governor. The governor is not bound by any recommendation. The law does not include a specific process for recommendation if the vacancy was created by a justice who was an independent. Note that a justice who moves out of the town, but not out of state, may continue to serve as the town’s justice. 17 V.S.A. §2623.

6. Town can charge for actual cost of attorney who assists with delinquent tax sale even if the sale does not go through. When a town sends delinquent taxes to an attorney for collection and to begin the tax sale process, if the delinquent taxpayer decides to pay all of the back taxes, penalty, and interest, the town can also add the actual and reasonable attorney fees that it has incurred. 32 V.S.A. §5258. However, the town cannot add a straight percentage similar to a contingency fee, but can only add the total of the actual hours spent by the attorney as shown in the bill for the fee that was incurred in efforts to collect the funds.

7. A person in a correctional institution must register to vote in the last town in Vermont that the person resided in prior to incarceration. According to 17 V.S.A. §2121 and 2122(a), "a person can neither gain nor lose residency…while in a correctional institution." There is also a more specific provision in 28 V.S.A. §807 that states that a person cannot register to vote in the town where the correctional facility is located. While some attorneys consider this provision to be unconstitutional, it has not been challenged in court and it is law in Vermont.

8. The legislative body (selectboard or school board) must pass a resolution of public necessity to begin the process for a bond vote. 24 V.S.A. §1755. All bond votes require special and additional notice and warning to be provided as directed in 24 V.S.A. §1756. . The ballots must be prepared as directed in 24 V.S.A. §1758. The boards and town clerk must provide copies documenting the various steps to bond counsel. Ask your bond counsel to provide you with a checklist so that you can be certain that you do not omit any required publications and that you properly document all steps. It is wise to confirm that you have prepared for all the required postings and newspaper publications with bond counsel before the posting and warning period begins.

9. Minutes of every public board or committee meeting must be made available for inspection and copying by the clerk of the board upon request. Minutes do not need to repeat all that is said in a meeting. 1 V.S.A. §312 (b) provides a concise list of the matters that must be noted in minutes. It is generally easier for research into past minutes if only the required information is noted. There is no statutory requirement that minutes be posted on town or school websites although this is frequently done to reduce individual requests. If draft minutes are posted or made available to inspection and copying, each page should be clearly marked "DRAFT".

10. The entrance checklist from each election must be kept for five years following the election and a copy shall be made available upon request at cost to the public. 17 V.S.A. §2590. The entrance checklist must be kept out of the ballot bag and be available for inspection and copying under the supervision of the town clerk. The entrance checklist must be kept for at least five years. The ballot bag(s) can be opened by the town clerk after 90 days for a local election. When opened, the ballots and tally sheets must be destroyed by the town clerk. The ballots cannot be inspected unless the town clerk is given a court order. The ballot bags must be kept sealed for 22 months following any election that includes federal offices (primary and general elections). At the end of that time period, the ballot bags can be opened and the ballots and tally sheets must be destroyed.

11. No vote is required when a selectboard decides to reclassify a road. Towns must go through all of the same statutory procedures to reclassify a highway from IV to III as must be done to go to a lower classification or to abandon a road. 19 V.S.A. §§707-717. If a road is reclassified to Class III, after the selectboard has gone through the necessary notice, hearing and decision, the town can use funds from its town highway budget to improve the road, if funds are available. A vote of the electorate is only required if additional funds are needed.

12. The manner in which a town votes to either adopt or revoke the town manager system is determined by the manner in which the town has voted to elect its town officers. 24 V.S.A. §1242 and 1243. If a town has voted to elect its officers by Australian ballot, then a vote to adopt or to revoke the town manager system of government must be done by Australian ballot. If a town still votes its officers from the floor by voice vote or paper ballot, then the vote to adopt or revoke the town manager system is by the floor system of voting. The legislature decided to "piggyback" the manner of voting to the manner in which officers are elected rather than dictate Australian ballot for all towns.

13. Board should take care not to discuss business outside public meeting. In one town a public board was reported to "recess" its meeting for a brief time in order for board members to leave the room to continue to discuss board business in private. This violates the open meeting law. All board business must be discussed in public unless it meets one of the two exceptions to the open meeting law: executive session or deliberative session.

14. A public board cannot "recess" its meeting for a brief time in order for board members to leave the room to continue to discuss board business in private. All board business must be discussed in public unless it meets one of the two exceptions to the open meeting law discussed below (executive session or deliberative session). It is perfectly appropriate for a board to take a brief recess to allow members to use the facilities, take a stretch, or return an important telephone call. However, the recess should not be a ruse so that board members can discuss board business outside of the hearing of the attending public.

15. One of the two exceptions that a board can use to discuss board business outside of a public forum is an executive session. This is used when the board is acting in a legislative capacity and the subject that needs to be discussed fits into one of the nine reasons listed in 1 V.S.A.§313 to go into executive session. For a municipal board to enter executive session, there must be a motion stating the statutory reason with specificity, the motion must be seconded and passed by a majority of its members present (two-thirds vote of members present is required for a public body of state government). No formal or binding action can be taken in executive session (except for the securing of real estate options) and the board can only discuss the subject that it publicly announced.

16. Deliberative session is used when a board is acting in a quasi-judicial capacity and its decision will be in writing. Deliberate sessions are used most often for deliberations of the zoning board, development review board or board of civil authority. After the board has heard all of the evidence in a hearing affording due process to the applicant and interested parties, the members of the board who will be participating in the decision meet in private to have candid discussions, weigh the evidence and make its decision. Deliberative sessions do not need to be warned and the board can reach its decision during the session. Frequently, after the decision is reached, one member is designated to draft the written decision and circulate it to other members.

17. No testimony can be taken in deliberative session. When the DRB or ZBA closes a hearing no additional testimony can be taken on the application (unless the board decides to later reopen the hearing). This means that in deliberative session the board members may only discuss the evidence that was already presented to them in the hearing. Any individuals they have asked to assist them in the deliberations (most commonly the zoning administrator or a clerk for the board) are limited to providing information about the zoning bylaws and how the bylaws have been applied in the past - no new evidence (facts) about the particular application can be given.

18. E-mail may be used for deliberation. Ordinarily, decisions made by a board outside of a public meeting – whether they are made at a party or through use of e-mail – will violate the open meeting law. However, because deliberations of a quasi-judicial body (when the board is acting like a court) where the decision will be in writing can be held outside of a public meeting, there is no prohibition against a board conducting its deliberations through e-mail by passing draft decisions back and forth between board members.

19. E-mail may be used for routine communication. Boards must take care not to violate the open meeting law through use of e-mail. Decisions about town business must be made at the public meeting – as should information gathering and discussion of the town business by a majority of the board. This means that e-mail should play a limited role in the conduct of town affairs. In one town the manager sends daily or weekly reports to board members – this is appropriate. In another, board members appropriately e-mail the chair with items for the meeting agenda and the chair e-mails the board members to discuss when the best time is to schedule a special meeting of the board.

20. Beware: e-mails sent between board members about public business may be public record! Even if two board members e-mail to and from their home computers, those messages will be subject to the requirements of the public record laws. This means that if the subject matter of the e-mail is not exempt from the public records law, by, for example, being of a personnel matter, then it must be disclosed upon request.

21. Only the town or abutting landowner may remove trees and shrubs within the right of way. Vermont law provides that "a person, other than the abutting landowner, shall not cut, trim, remove or otherwise damage any grasses, shrubs, vines, or trees growing within the limits of a state or town highway, without first having obtained the consent of the agency for state highways or the board of selectmen for town highways." 19 VSA § 901. A person who violates this law will be subject to a fine. 19 V.S.A. § 902.

22. Town can permit planting in the highway right of way. The selectboard may enter into agreements with individuals or organizations who wish to plant grasses, shrubs, vines, trees or flowers within highway limits. 19 V.S.A. § 903.

23. Selectboard may cut brush in right of way. The selectboard, if necessary, may cut a burned tree, or remove from within the limits of the highways under their care, trees and bushes which obstruct the view of the highway ahead, that cause damage to the highway or that are objectionable from a material or scenic standpoint. Shade and fruit trees that have been set out or marked by the abutting landowners shall be preserved if the usefulness or safety of the highway is not impaired. Young trees standing at a proper distance from the roadbed and from each other, and banks and hedges of bushes that serve as a protection to the highway or add beauty to the roadside, shall be preserved. 19 V.S.A. § 904.

There have been some changes to the state and federal election laws and they are highlighted below:

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

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