Tuneups for Towns
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? Is it sensible to wait until the newspapers or angry citizens tell you what you haven't done or have done badly? No, it is not. What is needed is a good, thorough once-over, top-to-bottom review of how things are done, to find what needs to be replaced, what needs more attention, what ought to be watched next time. Most towns won’t need the municipal equivalent of gum surgery or a root canal, but if you did wouldn’t you want to know about it now?
This is not a test. This is not a device to punish others for their failings. This is merely a punch list of items town officials might use if they wanted to 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 is not exhaustive either, so no one should feel complacent about satisfying every number. You don't have to stay in local government for long before you recognize there’s always something else to worry about next week. But it’s a beginning.
a. Has anyone looked ahead ten years and started to plan for the changes that the future will bring to a town? Is there any long term highway maintenance plan, for instance? Is there a capital expenditure plan?
b. Is the town involved in economic development at any level? Does the town make appearances at Act 250 hearings to ensure that the voice of the town is heard when large scale development is in the planning stage, even when that development is in a neighboring town?
c. How active is the town in working with neighboring towns on projects of mutual advantage? Has anyone thought through the benefits of sharing equipment and personnel? Has the possibility of joint purchase contracts for materials been explored?
d. How active is the town in regional governments, such as solid waste districts, regional planning commissions and the like? Do the local representatives to these organizations make regular reports to the town and to the selectboard?
e. Is there a recent town history or an effort underway to write one? Knowing your history is often the best place to begin planning your future.
a. 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?
b. 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?
c. 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.
d. 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.
e. 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.) 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?
f. 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?
g. 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?
h. 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?
a. 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)?
b. 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.
c. Have all newly elected select board 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?
d. Has the select board 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.
e. At the organizational meeting, did the select board elect a new chair each year? 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.
f. Have all vacancies in elective and appointive office been promptly filled? Did you post a notice that a vacancy in an elective office was created, within ten days of its creation? 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 office holding?
g. 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…)?
h. 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 select board can use when they need it, in the midst of a meeting?
i. 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?
j. Does the workload of the chair and other members justify consideration of the hiring of an administrative assistant or town manager?
k. How often does the select board 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?
l. 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?
m. Has the board written a policy on the use of public property that covers town land, buildings and equipment?
a. Have the oaths of the town clerk and assistant town clerk been deposited with the county clerk? See 24 V.S.A. § 1151.
b. How much of a usual delay is there between the filing for recording and the actual recording of deeds and other conveyances in the town clerk’s office? The statute does not specify a timetable, but this is the most common complaint about clerks’ work. Similarly, is there day book or check-in sheet used to list documents filed for recording as they come in? Are the documents stamped or marked as of the time of filing for recording?
c. Has an assistant town clerk been appointed? Does the assistant know how much of the office’s duties the clerk is willing to delegate to him or her? Is there any regular course of training for assistants?
d. Does the clerk stick to published office hours? Is there coverage for periods when the clerk can't be present?
e. Are minutes of all board and commission meetings filed with the clerk? Are records of grants and other award? No law yet says they must, but unless the clerk takes steps to secure these records, there will be no chance of preserving them for the future.
f. What is the condition of the index to land records? Has a card index been compiled, and if so for what period? Is there any plan to computerize the index? Or to convert the card or general indices to other formats?
g. Is there a plan for restoring town records, particularly those relating to town meetings and deeds and other conveyances? Is regular progress made on appropriating money and arranging for the care and rebinding of these records?
h. Is there a written description of the indexing standards made available to those searching title? Does the office have a written policy about how it will handle documents that the clerk recognizes contain errors (not required by law)?
i. Have you reviewed and posted your fee schedule to ensure that you are charging the proper fees and the public is aware of them?
a. Are minutes of annual and special town (and school district) meetings completed and approved by two of the necessary officers (moderator, selectboard or justice of the peace) within seven days of the meeting? Have they been recorded or placed on permanent retention by the clerk? See 24 V.S.A. § 1152.
b. If the town and school district hold separate meetings, is a moderator elected separately for each meeting? It may be the same person, but a separate election is required unless the meeting is a joint town/school district meeting. Do the town and school district confer before setting their meeting in order to avoid conflicts?
c. Does the selectboard confer with the moderator when it drafts the warning to ensure that the articles are properly worded? Has the board checked to be sure that it is properly voting every article—and that it is using Australian ballot only for those articles required by law or by earlier vote of the town?
d. Does the moderator take time at the beginning of the meeting and throughout the proceedings if necessary to explain to voters how the process works?
e. Is the moderator familiar with the law authorizing reconsideration of articles before the assembly begins work on the next article? See 17 V.S.A. § 2661.
f. Is a pre-town meeting held to educate voters on the issues that will arise at town meeting? The law only requires this for Australian ballot votes, but many towns find it useful, even when town meeting is of the traditional character. Sometimes it unites a town behind its officers by giving voters a forum to ask for longer explanations of policies and choices made.
a. Is the computer “backed up” on a regular basis (meaning are all the files saved on disk and stored where they cannot be harmed if something happens to the computer)? Do you have a security policy to ensure that only those who are authorized can enter or remove data?
b. Does the town have an adopted policy on copying electronic records? How much do you charge and are those fees defensible, according to the policy of the Office of the Secretary of State?
- Are permanent paper copies made of all important documents? How are they stored? Is there a formal policy on preservation of records?
c. Has anyone thought through the possible applications for the computer? Is there a plan for updating the hardware and software? Is the town aware of all that its computer can do for its officials and the public?
a. Is there a highway book where all surveys, certificates and other paperwork relating to highways is kept? (Not a legal requirement, but a darn good idea; if not a book, then is there some index to locating these records?)
b. Have all highways been accounted for? Each town ought to have a record of all highways ever laid out and of their present status. A town should know not only which roads are clearly public, but ought to scope out the potential close calls. Knowledge is the best security here. Before working within the right-of-way, can you say for certain its width?
c. Does the road commissioner understand the limits of his or her authority (i.e., that the select board control the highway budget and make all substantive decisions about highway work)?
d. Is there any potential problem with stored salt, gasoline tanks, or other hazards that can affect the town's liability?
e. Are all class three highways maintained, including winter plowing? Does the town plow private driveways? What is your class four highway policy? Is it clear to all landowners that they need a permit to work within the highway right-of-way?
f. If the town has adopted a snowmobile ordinance relating to the use of the town highways, has it been reviewed recently to see if it is in line with the law? Have the highways been posted? See 23 V.S.A. § 3206(b)(2).
g. Is the speed limit of all town highways properly set and posted? Is it time to review the policy throughout the town?
a. Are all ordinances organized and kept in a separate book or file for easy reference? Have they been kept up to date? Are their adoption and effective dates clearly indicated?
b. Are zoning bylaws published and available in the most current form to the public?
c. If the town has a governance charter, is there a copy handy? Is it available to the selectboard at any meeting? Does it need review (recommendation that every five or seven years the selectboard appoint a committee to review it and decide what changes are needed)? Note, if the charter or its amendments were adopted during the 1963-1983 period, the selectboard should include the entire charter as the submission to the legislature for approval, as the statutory method of “enactment” at the time was flawed.
d. Growing out of c., are there provisions of law that the town would find useful that ought to be included in a charter (even if the municipality doesn't have one)? This would include conflict of interest (which could also be adopted as an ordinance), referendum and initiative, and public recall of officers. Should the selectboard appoint a charter committee to consider the adoption of one?
e. Have all special acts relating to the town been compiled and arranged? This is particularly important to villages and other special districts.
a. Has the report been assembled with full consideration of the standards (nonbinding but still useful) recommended by the extension system? Does it have a good index? Can things be found quickly, using their common names?
b. Does the report contain a superintendent’s, supervisory union treasurer’s and school district treasurer’s report, and a summary of the public accountant’s report (during the years when such an audit is done), as required by 16 V.S.A. § 563(10)? In a town where the school report is printed separately from the town report, only the former needs to contain these reports.
c. Is the report mailed or otherwise distributed to the voters at least ten days prior to the annual meeting? Too often the town opts for no distribution at all, except to those who stop by the town clerk's office, a practice that doesn’t satisfy the statutory standard. If the report isn't mailed or otherwise distributed on schedule, does the town publish newspaper notice of the town meeting at least five days before the meeting, as required by 17 V.S.A. § 2641(b)?
d. Has the town treasurer or trustees of public funds reported on the condition of cemetery trust funds in the report? See 18 V.S.A. § 5385. Have the auditors reviewed the accounts of all officers who handle money, including the zoning administrator, the health officer, the constable or police department, and petty cash accounts kept by other officers?
e. Although there are no legal standards, is the selectboard’s proposed budget comprehensive? Does it include all expenditures and revenues? Is it readable? Do all the selectboard members understand it? Are the lessons of the debate over the budget from last year’s meeting apparent from this year’s effort?
a. Are the listers’ records, excepting personal property inventories, available to the public? Has the board decided formally whether it or the clerk has custody of them? Is the 48-hour rule in making them available respected?
b. Has the board of listers kept to the schedule of deadlines established in Title 32? If not, has it asked for an extension of time through the Director of Property Valuation and Review, with the agreement of the selectboard?
c. If the town has an inventory tax, are inventories properly protected from public scrutiny? Do the listers merely list or do they actually appraise inventory? If they appraise, are they clear on the methodology?
d. Do listers have regular contact with their district adviser? Have they taken the courses on valuation?
e. Have all errors and omissions been handled by December 31 of each year?
f. How long has it been since the last reappraisal? Do you know your common level of appraisal? Do you know how much of a penalty the town may have paid in the last year as a result of falling below the 80% level of an equalized grand list?
g. Does the board keep minutes of its meetings?
a. Are all justices properly sworn on or before February 1 of the year following their election? Have all members of the board taken the necessary oath prior to hearing tax appeals?
b. Does the board know and understand the conflict of interest provisions of 32 V.S.A. § 4404(d) and 12 V.S.A. § 61?
c. Are the board's decisions written lucidly enough to explain to taxpayers and listers the basis for its decision in a tax appeal? Try asking a resident who has no interest in an appeal this year to read a decision and see if it's clear enough.
d. Has the board purged the checklist, reviewing every name for continued eligibility (residency, in most cases) by September 20 of each odd-numbered year? See 17 V.S.A. § 2150(d).
e. Has the board elected a new chair following town meeting each year? See 24 V.S.A. § 801. If members of the board have been appointed to ensure political balance are you sure that they participate in election-related functions?
f. Has the board reviewed its policy on the number of voting booths, the time of opening the polls on election day (particularly the primary and general elections), and the number and adequacy of polling places recently?
g. Has the board checked all polling places to ensure that they are fully accessible (including accessible bathrooms if there are bathrooms available to the general public?) If a polling place is not fully accessible have you applied to the Office of the Secretary of State for a waiver?
a. Does your delinquent tax collector have a written collection policy? Does the policy explain whether and when partial payments will be accepted?
b. Do notice of tax sale include a notice that a taxpayer may request abatement of taxes, and the reasons abatement might be granted to a taxpayer—including the inability to pay?
c. Does the delinquent tax collector collect an 8% fee? Is this the right policy, or should a salary replace this collection fee?
d. Is the board for abatement of taxes called together whenever a taxpayer asks for an abatement of taxes?
e. Does the board have a proper quorum present for its meetings? See 24 V.S.A. § 1533. That's a majority of the sum of the town clerk, treasurer (two count as one for quorum purposes), selectboard, listers, and justices; or a majority of the selectboard and a majority of the listers, and the treasurer. A majority of a quorum may make binding decisions.
f. Has anyone ever compiled a list of abatements granted in the last five to ten years to check to see if any policy or consistency can be discerned?
a. Have cemetery commissioners been elected by the town? Are their terms of office current? (Some towns wind up with a single commissioner, while the law requires three). If commissioners were ever elected and no vote to rescind that practice has been held, selectboard have no authority to regulate cemeteries in town. See 18 V.S.A. § 5373.
b. Are the town’s cemetery lots and walks, “unsightly with weeds or by an unchecked growth of grass" or have headstones and monuments "displaced or out of repair”? Cemetery commissioners' duties with these problems are covered in 18 V.S.A. § 5362.
c. Has anyone compiled the names and other information on the stones in the town cemeteries, for ease of researching and to preserve details that may be lost to time and acid rain? (Not a legal requirement, but very important. Consider investing the town historical society or other volunteer group with the assignment.)
a. Do you know whether your library is a municipal or incorporated public library? (See the Law of Libraries, published by the Office of the Secretary of State, 2000)
b. If the library is a municipal library are all of its accounts managed by the treasurer? Does the treasurer accept orders from the trustees?
c. If the town has a personnel policy does the policy make clear that is does/does not apply to library employees? If the policy applies to library employees has this been approved by the trustees? Do the trustees supervise library employees?
a. Who keeps the school finance records? Does the treasurer know enough about claims and vouchers to feel comfortable signing checks against the school accounts?
b. Does the treasurer still collect one percent of the current taxes? Is this the right policy, or should a salary replace this collection fee?
c. Are cemetery trust funds each kept in a separate account, and maintained by the town treasurer (or alternatively, by the trustees of public funds)? Is the income expended according to the conditions of each trust? See 18 V.S.A. § 5385.
d. Are financial records kept in a manner acceptable to professional auditors?
e. Has an assistant treasurer been appointed? Does the treasurer know when an apparent conflict of interest ought to require that someone else completes the transaction or accounting on a particular matter?
f. Has the treasurer investigated a spreadsheet program that could replace the ledgers with a computer record of the town’s finances?
a. How well has the selectboard kept to its budget during the last year? What categories of expenditure were in surplus or deficit by the end of the year? Are allocations of funds reasonably made?
b. Does the budget include funds for education of town officers? (Not required by statute, but a good idea.)
c. If a discount is voted, are funds offsetting the discount included in the budget? (If not, then the budget must suffer a loss of revenues for that amount.)
d. Has anyone kept track of what hasn't passed at town meeting over the last five years? Has a chart illustrating increases and internal changes in different parts of the budget been compiled so that officials and citizens can see whatever trends are emerging in budgetary policy?
e. When the time comes for rearranging moneys within the line item budget, because of shortfalls in one or another program, do selectboard recognize that money borrowed from the highway fund must be repaid to it (in other words, that money in the highway fund can only be used for highway purposes)?
a. Do both the planning commission and zoning board of adjustment issue written findings and decisions following their hearings? Are these decisions written clearly enough to inform citizens who could not attend the hearings about the nature, reasons, and outcome of the decision? (Have somebody read a couple to judge.)
b. Are all witnesses before the commission and board sworn before giving testimony?
c. Are the decisions of the board or commission consistent? Has any effort been made to compile decisions and look for themes and precedents? Are any decisions made on the basis of the identity of the applicant?
d. Does the zoning administrator sit with the board or commission and participate in their decisions? (Ought not to happen).
e. Are hearings tape recorded? (No legal requirement, but invaluable for record keeping and appeal purposes). Has anyone reviewed the tapes to see if they are audible?
f. Do the board, commission and zoning administrator keep track of the timing requirements for decisions in order to avoid default?
g. Does the board or commission have a well developed sense of conflict of interest? Is it aware of the laws on conflicts and does it know what to do when a difficult situation arises? See 12 V.S.A. § 61 for the basic rule.
h. Are all permits or memorandum of permits filed with the town clerk within thirty days of its being issued (required)? 24 V.S.A. § 4443. Are all permits being posted for 15 days? Are all public hearing notices being publicly noticed properly? 24 V.S.A. § 4447.
i. Is your town plan in effect? If so, when does it expire? Are you working on developing a new plan?
j. Does the planning commission meet with the zoning administrator to discuss improvements to the bylaws based on experience with permit applicants?
k. Does the board have quorum problems? If so, has the selectboard considered appointing a board of alternates? 24 V.S.A. § 4461
a. Is the town ready to respond whenever there is an obstruction of a sewer line or a drain? [Case law shows that a town is not liable if it exercises “needful prudence, watchfulness, and care.” Creighton v. Town of Windsor, 154 Vt. 348, 351 (1990). But liability will come if there is actual or constructive notice and then no response.]
b. Are moneys received from water rents and receipts used exclusively for repairs and management of the water system and payment of interest and principal on water bonds? See 24 V.S.A. § 3313.
c. Does the board of sewer commissioners (usually the selectboard) have an adopted ordinance on the allocation of sewage capacity? Is it reviewed on any regular basis? Is it reviewed when an applicant requests an allocation? Does the board at any given moment have a clear idea of the limits of available sewage capacity?
a. Are all police officers in the town aware of the legal requirement that they report all cases of child abuse to the Commissioner of Social and Rehabilitative Services within 24 hours, and that failure to do so carries a $500 penalty? See 33 V.S.A. § 4913.
b. Does the town have a written policy relating to discrimination against employees on account of race, color, religion, creed, sex, sexual orientation, national origin, age or political affiliation? No law requires it, but writing one down and posting it may be essential in avoiding later accusations about the commitment of a town to eliminate discrimination from its workplace.
c. Are all town employees aware of the penalties for destruction of public records? See 22 V.S.A. §§ 454-55. And of the disposition schedules for local records promulgated by the Director of the Division of Public Records? Does the town clerk have an updated copy of this schedule?