State of VermontSecretary of State
Municipal Update, October, 1997
State of Vermont
CONTENTS:Welcome!
We hope this update proves useful to you. Please note that Vermont Municipal Monthly returns in January as a World Wide Web publication (details below). As I told many of you at the recent VLCT gathering in Barre, we would be happy to answer questions about getting your office hooked up to the Internet. Give me a call if I can help. If you do have e-mail, you may reach me at (jmilne@sec.state.vt.us). Elections Director Ellen Tofferi can be reached at (etofferi@sec.state.vt.us). Mail address is 109 State Street, Montpelier, VT 05609-1101; Phone is 828-2363.
-- Jim Milne
With support from our Office, the Town Officers Connectivity Project is coordinated by the UVM Extension System and the UVM Center for Rural Studies. It provides training, through distance-learning technologies and on-site support, to assist town officials who want to connect to and use the Internet.The project now serves Essex, Orleans, Caledonia, Washington, Orange, and Lamoille counties, and the group is seeking funding to expand the project statewide. Officials within the project area may e-mail David Deutl at (ddeutl@sover.net) for more information or call him at 223-2389.
NOTE: The Vermont Municipal Clerks and Treasurer's Association's continuing education committee has approved the Town Officers Connectivity Program's "Certification Program in Internet Connectivity" as a source of continuing education credit.Since March 1997, approximately 60 towns in the project area have been connected to the Internet using e-mail and half a dozen have posted World Wide Web sites.One point per 10-hour course will be given under the category "education courses and in-service training relating to this position." The connectivity course provides a total of 18 hours or 1.8 points, and will apply toward CVCs or CVTs. For more information on becoming certified, see the Web document on certification at: (http://crs.uvm.edu/tocp/certific.htm).
Our Office is pleased to host municipal Web sites from throughout Vermont, free of charge. We also provide a page, at (www.vermont-towns.org), that points to all of the state's municipal Web sites we know of, hosted by us or by others. E-mail Deputy Secretary of State John Howland Jr. at Webeditor if you would like us to host your site or point to it.
The Town Officers Connectivity Project also has initiated electronic discussion list services for town officials; directions for joining are posted at: (http://crs.uvm.edu/tocp/).
Other partners in the project include individuals from the Vermont Municipal Clerks and Treasurers Association, the New England Municipal Resource Center and the Vermont Center for Geographic Information.
The National Voter Registration Act of 1993 went into effect in Vermont on July 1, 1997. Since its implementation, our Office has mailed 80,000 voter registration forms to clerks and voter registration agencies (the Department of Motor Vehicles has its own form). In the same period, we have mailed more than 5,000 completed applications to town clerks.WHAT PROBLEMS HAVE WE ENCOUNTERED?
People don't follow directions well, so we have the perennial problem of applications that do not contain the required information. We have been in contact periodically with the Department of Motor Vehicles and the other voter registration agencies to give them feedback about the applications. This communication will be on-going as we try to achieve the ever-elusive goal of a properly completed voter application form!COPIES OF FORM FOR APPLICANT AND TOWN WHERE APPLICANT PREVIOUSLY VOTEDIn the case of the Department of Motor Vehicles form that we receive and forward to you, the sheet we receive is the fourth sheet in the application that the voter fills out. Applicants don't always apply enough pressure and reading the application information -- even if it is complete -- has been a challenge in some cases. Again, we've communicated this problem to DMV, and they are addressing it as best they can.
The form the Department of Motor Vehicles is using was specifically exempted from the requirement that the voter application form be in four copies. 17 V.S.A. § 2145(b). When the Board of Civil Authority adds an applicant to the checklist, the clerk must make two copies of the application form to send to the new voter and to the town where the voter was previously registered.PURGINGThe smaller forms we've been receiving from the Department of Motor Vehicles have created problems because people have failed to realize that they need sign the form only if they wish to register to vote. At present, most individuals who have signed these forms are already registered voters. If you are a clerk who receives such a form for a voter already registered, you may throw it away.
However, if the voter is not already registered, the application should be processed as any other application, and the clerk should make copies of the application and send it to the newly registered voter and to the town where the applicant previously voted.
The purging process should be somewhat less cumbersome now, because the BCA need send only one letter to a voter for whom the board cannot determine continued residency.RESIDENT WHO IS NO LONGER A RESIDENTThe voter's name cannot be taken off the checklist unless the voter responds to the letter stating that he or she is no longer a resident of the town. If the clerk receives a letter verifying that a voter is no longer a resident, the clerk may remove the name from the checklist without reconvening the BCA. If the voter doesn't respond, the voter's name remains on the checklist until the day after the second general election following the date the notice was sent. On that day or at some point thereafter, the BCA removes the names of those voters who never responded to the letters asking them to confirm their residency in the town.
What happens, however, when the BCA sends a letter to Jean Jones in San Francisco, and Jean responds that she is still a resident of the town?VOTERS WHO DON'T RESPOND TO THE PURGE NOTICE AND THEN SHOW UP TO VOTEJean is not a student, a member of the military or confined in a correctional institution, hospital or nursing home. If a majority of the BCA does not believe Jean is still a resident of the town, despite her belief that she is, the BCA may set a date for a meeting at which Jean is invited to attend or present written information to the BCA to supplement her assertion that she is still a resident of the town.
Remember that the information she presents to the BCA has to be confined to facts pertinent to what is contained on an application for addition to the checklist. 17 V.S.A. § 2145(c). In other words, she needn't present and should not be asked for income tax returns, driver's license, or registration information.
She needs to supply the BCA with proof of her residency. Is she domiciled in the town with an intent to maintain a principal dwelling place in the town? If she cannot satisfy the BCA that she is domiciled in the town with an intent to maintain a principal dwelling place in the town, the BCA should remove her from the checklist.
The notice of removal from the checklist should contain notice of the fact that she may appeal the BCA decision to superior court in the county where she claims residence. 17 V.S.A. § 2148(a).
Voters who never respond to the purge notice but show up to vote at the next election are required to give affirmation of their address prior to being allowed to vote. 17 V.S.A. § 2150(d)(3)(A).WHAT HAPPENS TO THE VOTERS WHO NEVER RESPOND?Clerks might want to consider a method of denoting on the checklist those voters who received notices but didn't respond. If there is not an easy way to denote these voters on the checklist, the list of those who did not respond should be available to election officials at the check-in table so that each voter's name can be checked against it.
The BCA is required to keep detailed records of its proceedings for at least two years. One of the records required to be retained is the list of the names and addresses of all persons to whom notices were sent and information concerning whether or not each person to whom a notice was sent responded to the notice. 17 V.S.A. § 2150(d)(7).Clerks will need to keep that list longer than two years. Persons on the list who do not respond may be removed on the day after the second general election following the date of such notice, if the voter has not voted or appeared to vote in an election since the notice was sent or has not otherwise demonstrated his or her eligibility to remain on the checklist.
If the notice was sent out in August of 1997, for example, the voter could not be removed from the checklist until the day after the general election in the year 2000 (a little over three years).
There will be more questions and concerns as we administer the law, and we will try to supply you with appropriate guidance. Please let us know about issues as they arise so we can respond promptly.
- Must municipalities provide cemetery space for their residents?
Apparently not. 18 V.S.A. § 5361 states that "a town may vote sums of money necessary for purchasing, holding and keeping in repair suitable grounds and other conveniences for burying the dead." The legislature's use of "may" gives a town the discretion whether or not to do so.- Must cemeteries have fences along their borders?
There seems to be no statute requiring a cemetery to have fences along its borders. 18 V.S.A. § 5364 covers situations in which the selectmen neglect to keep an existing fence in repair, but it says nothing about requiring a fence. Section 5321 covers situations where a private burial ground becomes unsightly, but if applicable, it would only require repair of a fence already in existence. Section 5365 covers situations where there is no fence around a cemetery and animals damage property on the cemetery. Under this section, a person or an estate may recover damages from the town through a civil action. Since a town may be found liable for damages as a result of a fenceless cemetery, it may want to enact a fence requirement. Under 18 V.S.A. § 5305, an "agency" has the authority to make rules and regulations for the "use, care, management and protection" of a cemetery. Therefore, any "agency" (which includes towns) could, by rule or regulation, require a fence if it so desired.- Must religious cemeteries follow state law regarding where investments of the perpetual care fund occur?
18 V.S.A. § 5306 authorizes an "agency" to establish a perpetual care fund. It is the agency's duty to establish the fund according to the applicable statutes. 18 V.S.A. § 5301 defines "agency" to include religious cemeteries; therefore, they must follow state law regarding perpetual care funds.- How are condemnation proceedings followed for "eminent domain" on adjoining land?
Towns and cemetery associations are authorized to acquire land and property for cemetery purposes through eminent domain proceedings by virtue of 18 V.S.A. §§ 5482-5494. While these statutes set forth the procedure to be followed, if a landowner does not want to sell the selected property, a proceeding must be initiated in superior court. This should be done after consultation with an attorney familiar with such proceedings.- When a nonmunicipal cemetery financially fails, who is now responsible for the cemetery and can anything be done before failure?
18 V.S.A. § 5439 allows a nonmunicipal cemetery, which is not owned by a church, or by a religious or ecclesiastical society, to be dissolved under the provisions of Chapter 19 of Title 11. Upon such dissolution, all lands and property held by the dissolved cemetery may be transferred to the town in which the lands are located and may become a public burial ground. Since the statute reads "may" rather than "shall," this result is discretionary, not mandatory.
Before failure, an incorporated cemetery association or society may merge with another incorporated cemetery association or society in the same town by virtue of 18 V.S.A. § 5440. Again, this action would depend on willing parties, because the law permits, but does not require, merger.
- Can vault companies sell only to funeral directors?
There is nothing in Chapter 121 of Title 18 that would require vault companies to sell only to funeral directors. It would seem that such a restriction could constitute a restraint of trade.- Who is responsible in state government for making sure cemeteries comply with the law?
A word of preface: The legislative, the executive and the judicial branches form the structure of our government. Constitutionally, the doctrine of separation of powers confines each branch to carrying out its own duties and prevents it from encroaching into the responsibilities of another branch. Simply stated, the executive branch of state government is responsible for executing the laws that have been promulgated by the legislative branch. The judicial branch ensures that all laws passed and all government actions are constitutional.Obviously, each official of the executive branch is primarily responsible for executing the laws that pertain to his or her area of government. The laws themselves, either by their operative language or by their location in the statutes, indicate which part of the executive branch or state official has the duty to execute the law. Rules and regulations promulgated by the executive branch through the Administrative Procedures Act further define the responsibilities of state officials. Also, state officials necessarily have wide discretion in carrying out their responsibilities.
The cemetery laws are located in Title 18, which is entitled "Health." 18 V.S.A. § 5573, for instance, states that no community mausoleum or columbarium shall be constructed without the consent and approval of the state Board of Health. Section 5574 gives the state Board of Health supervisory control over such construction. The Board shall also require compliance with approved plans and specifications. Section 5577 sets forth the Board's responsibilities when a mausoleum or other structures become a public health risk. It is clear that the state Board of Health has certain responsibilities concerning these provisions.
18 V.S.A. § 5579, however, creates criminal penalties for any violations of sections 5571-5578. As with all criminal laws, the State's Attorney of the county in which a violation occurs would be responsible for prosecuting criminal offenses. The Attorney General's Office can also prosecute criminal offenses. There are other criminal provisions in Chapter 121 that apply to cemeteries. Section 5364 states that a town may be indicted by the grand jury if the town selectmen fail to repair the fence around a cemetery. These matters also could be prosecuted by a State's Attorney or the Attorney General without a grand jury. Of course, these state officers have wide discretion as to what cases will be prosecuted.
Many of the cemetery laws may give rise to civil causes of action that could be brought in the courts in order to ensure compliance with the laws. Civil actions brought on behalf of the state are normally brought by the Attorney General's Office. Some statutes authorize private individuals to file a civil action. As noted above, Section 5365 authorizes a person or estate to bring a civil action against a town if certain damage is caused to property. There are also numerous other legal remedies available in which private individuals can seek either to compel or to stop the actions of state officials. We would urge any individual who is considering legal action to consult an attorney before doing so, to receive advice as to which of several courses of action would best meet that individual's specific needs.
Vermont Municipal Monthly will resume publication in January. In its new incarnation, it will be an Internet publication, posted on our World Wide Web site. Paper offprints will be mailed to any town offices that do not yet have Internet access (no request necessary -- if we don't have an e-mail address for you, you'll get a paper copy). Otherwise, an e-mail message will be sent routinely to all town officials and other interested parties who request notification whenever a new edition is posted. (Each edition may then be printed locally, of course, for anyone who requests a copy.) If you would like an e-mail notification each time a new edition is posted, please let us know at (publist@sec.state.vt.us).