Secretary of StateVermont Municipal Monthly, March, 1998
Secretary of StateGreetings...
Each month, our office receives hundreds of phone calls from town officials and members of the public, asking good questions about the law regarding towns, school districts and elections, among other things. This month in Vermont Municipal Monthly we include a discussion of a few of the items we dealt with in February.
Immediately following Town Meeting, of course, there is a host of duties required by law for clerks, treasurers, and others. We also have included a short reminder list that we hope will prove useful.
Please note at the end of this issue that we are again providing a series of notary education seminars around the state. Reviews from participants in earlier sessions have been overwhelmingly positive. We appreciate your support.
A paper copy of this edition of Vermont Municipal Monthly is being mailed to each town and city clerk. Anyone who would like to be notified electronically each time a new issue is posted on our Web site (http://www.sec.state.vt.us) may e-mail us at publist@sec.state.vt.us with a request.
-- Jim Milne
Secretary of State
jmilne@sec.state.vt.us
CONTENTS:
- A Post-Meeting "To Do" List
- What Happened at the Meeting: Proper Answers to Knotty Questions
- Budget Committees and the Open Meeting Law
- School Matters
- Town Clerk Matters
- Miscellaneous Matters
- Notary Seminars Set for April, June
A Post-Meeting "To Do" List
RETURN TO 'CONTENTS'
- FINISH THE MINUTES: The Town Clerk is obliged to prepare the minutes of town meeting and have them approved by two people from among the following officers—select board member, moderator, or justices of the peace. This must be done within seven days of the meeting. 24 V.S.A. § 1152.
- GET ORGANIZED: "Forthwith," the statute announces, the select board must meet, elect a chair, a clerk (of the board), and let the town clerk know your decision. At this meeting, you will also need to appoint three fence viewers, a poundkeeper, inspectors of lumber, shingles and wood, weighers of coal, and a tree warden. 24 V.S.A. § 871. The same process should be followed by any board, including auditors, listers, the board of civil authority, the board for abatement of taxes, planning commission, and zoning board of adjustment, and any others. Take up the issue at your first meeting, elect a chair, set your regular meeting schedule and let the town clerk know about it.
- SETTLE: Immediately after town meeting, if not before, auditors need to "settle" with former town officers. If a new delinquent tax collector has been elected, for instance, the former DTC must pay over all funds collected to date and make a complete accounting of the taxes still owed. 24 V.S.A. § 1578. All papers in the collector's hands are also to be turned over to the successor collector.
- GET SWORN: Town clerks, select board members, constables, listers, grand jurors and fence viewers must be sworn in before taking office. 24 V.S.A. § 831. See the town clerk for forms, or look at the oath in Chapter II, Section 56 of the Vermont Constitution, in the first volume of Vermont reports.
- GET BONDED: School directors, constables, road commissioners, collectors of taxes, treasurers, and town clerk must be bonded before taking office. 24 V.S.A. § 832. The select board sets the amount. This is usually done through your insurance company. The town or school district pays for the bonds, not the officers. 24 V.S.A. § 835.
- TELL WHO WAS ELECTED: Newly elected town clerks must file the certificate of their election with the county clerk, signed by the moderator of the meeting, within five days of the election. File a copy of your oath of office as well. 24 V.S.A. § 1151. The clerk should also write the state treasurer to tell him the name of the new town treasurer. 24 V.S.A. § 1166. Actually, this must be done before July 1, but why not do it now and get it out of the way? Within five days of town meeting, the clerk should also send each lister's name, mailing address, and length of term to the commissioner of taxes. 24 V.S.A. § 1168. Send the name and address of the constable to the county clerk. 24 V.S.A. § 1169.
- APPOINT ASSISTANTS: Town clerks and treasurers must have assistants. They should be appointed following the beginning of each new term, and the appointment recorded. 24 V.S.A. §§ 1170, 1573. Send the county clerk a copy of the appointment of the assistant town clerk and of the assistant's subscribed oath. 24 V.S.A. § 1172.
- LEARN THE OPEN MEETING AND PUBLIC RECORDS LAWS: Read them. They are found back to back in the first volume of the Vermont Statutes Annotated, at 1 V.S.A. §§ 310-320. Everything is open unless you can find a reason to close it in these laws. Don't meet with a quorum of your board without public notice. That's against the law. See the Short Guide to Vermont's Open Meetings Law on our Website for details.
- LEARN HOW TO ASK FOR HELP: Everybody helps everybody in Vermont. Call those who held the office before you. Call those who hold the same office but in another town. Call us. Call the League of Cities and Towns. Call state offices. There's no reason not to ask for help. Everything is complicated at first.
- LEARN HOW TO DEAL WITH THE PUBLIC: You are a public officer. That means you are available to help, answer questions, find official paperwork, and anything else people ask of you. There are limits, of course. You don't need to be abused. But as long as the public remains civil, you should try to help.
---------------------------- WHAT HAPPENED AT THE MEETING
Proper Answers To Knotty QuestionsRETURN TO 'CONTENTS'
CONFLICT OF INTEREST AT THE POLLS. The town treasurer was in a contested race this year. Other officials were concerned about her working with people who came into the office to vote by absentee ballot. We agree with them in principle, although if no one else is available in a particular case, the voter's need comes first. The best policy would be for the treasurer to leave dealing with absent voters to the town clerk or others in the office designated by the clerk. The treasurer certainly would not want to create any situation in which she could be accused of trying to influence voters. There is nothing in the statute regarding this situation, but common sense dictates prudence.
Let's review the basic rule. Vermont election law prohibits any person from serving as an election official if her name appears on an Australian ballot as a candidate for any office unless she is the only candidate for that office or unless the office for which she is a candidate is that of moderator, justice of the peace, constable, town clerk, clerk-treasurer, ward clerk or inspector of elections. 17 V.S.A. § 2456. Using the above standard, a candidate running in a contested race for treasurer would not be allowed to work as an election official.
MYTH ABOUT AMENDMENT. Every year at town meeting time, we get questions about procedure, including requests for confirmation that the law or the rules that allow amendments to stated amounts of budgets do so only if the amendment proposes to lower the amount of the appropriation. That is not the case. An amendment to raise or lower any appropriation is in order if the motion has been moved and seconded and the question stated by the moderator. Changing the amount of the appropriation by amending it to a higher or lower sum is allowed by Robert's Rules of Order.
CONSTABLES AND ELECTIONS. For years we get the same call on election day, wondering if the constable has to be present at an election. Prior to 1978, the first constable was the presiding officer at general elections in towns. When the election laws were rewritten in 1978, however, the town clerk was designated the presiding officer, a law that is essentially the same twenty years later. 17 V.S.A. § 2452. The constable is NOT required by law to be present at any election.
SERVING AS TOWN CLERK AND SELECT BOARD MEMBER. Can it be done? The law does not cite town clerk and select board member as incompatible offices. 17 V.S.A. § 2647. You cannot serve as town treasurer and select board member, but if a person is elected to the offices of clerk and selectman and wishes to serve in both positions, and wants to hold both positions, there is nothing in the law to prevent it.
VOTING TO DISPENSE WITH AUSTRALIAN BALLOT. Some years ago the union high school district voted to adopt its budget by Australian ballot. The union school board this year placed an article on the annual meeting warning asking the union high school voters whether the district wished to discontinue the use of Australian ballot. 16 V.S.A. § 711e(g). 17 V.S.A. § 2680(c). The question is, how should this vote be taken? The law treats the question differently, depending on the method of voting used.
Union school district law states that "the vote whether to use the Australian ballot and whether to commingle the ballots shall be taken by written ballot." 16 V.S.A. § 711e(b). Generally, when the adoption of an article is prescribed to take place in a certain fashion, the reconsideration or rescission of the article is voted in the same manner. Accordingly, a vote to discontinue the use of Australian ballot would be by "written" or paper ballot.
Don't confuse the terms "written ballot" and "Australian ballot," however. A written ballot is a paper ballot vote used at a traditional school district meeting. An Australian ballot vote refers to the practice of voting at designated polling places during designated polling hours (usually, 10 a.m.-7 p.m.) with printed ballots that are available twenty days prior to the school district meeting for absentee voting.
If the union high school district voted to adopt all public questions by Australian ballot in its previous vote, the vote on whether to discontinue the Australian ballot would itself be taken by Australian ballot, since the matter itself is a public question. 17 V.S.A. § 2680(d). If the school district voted to adopt only the budget by Australian ballot, then the vote to discontinue must come at a traditional floor-type meeting.
If that is the case, the moderator of the union district meeting should require a paper ballot, rather than allowing a voice or division vote on the question. The ballots need not be pre-printed; simple slips of paper will suffice, but paper must be used.
WARNING A PUBLIC HEARING ON A BUDGET. It seems that members of the school administration held a public informational hearing on the union high school budget, but did not give notice to all school board members. Four showed up; one missed the hearing because he didn't know about it.
The only statutory requirement in regard to public informational hearings applies when municipalities have adopted the Australian ballot system for voting on an article (17 V.S.A. § 2680(g)) and school bond votes (24 V.S.A. § 1758(c)). The hearing must be held within ten days of the vote and must be warned for ten days. Obviously, a town or school district may choose to have more than one public hearing, and those hearings may be warned and scheduled in any manner as long as one public informational hearing meets the statutory requirement cited above.
We think the school board ought to warn any public informational hearing as a special school board meeting. This would prevent the school board from finding a quorum of its membership at a public informational hearing that has not been duly warned as a special school board meeting. It would also prevent any further lack of communication among board members regarding the time, place and purpose of such hearings. The decision to warn the informational hearing as a special school board meeting would inform all board members present at the school board meeting as to the time, place and purpose of the hearing and would afford board members who are absent from that meeting the opportunity to receive oral or written notice at least twenty-four hours before the meeting. 1 V.S.A. § 312(c)(2).
An informational hearing at which a quorum of the board appears is a special school board meeting if members of the board answer questions and discuss the school budget with those members of the public in attendance. 1 V.S.A. § 310(2).
If the school board does not wish to warn each public informational hearing as a special school board meeting, the board members could agree among themselves that less than a quorum of board members would attend each public informational hearing to assist members of the administration and respond to voter questions.
PUBLIC LIBRARIES AND THE TOWN. Public libraries come in at least two types. Sometimes the town or village runs the library; sometimes it's a private, nonprofit corporation that runs the public library. In this discussion, the question is about the latter type.
Last year at a special meeting of the village, the voters approved an article requiring all village officers to be elected by Australian ballot. In preparing for this year's annual meeting, the village wondered if this included library trustees. Our first temptation was to say, "Of course not, they are not part of the village," but on further inquiry we learned that the articles of incorporation of the library explain members of the corporation must be the legally registered voters of the village and that each year, at the annual village meeting, the voters are to elect two trustees, who need not be members of the corporation.
Although the library trustees are not "village" officials, they probably should be elected to office using the same method as other officers. The trouble is, that has not yet been voted by the village. We advised another vote to elect library trustees by Australian ballot.
BEING AUDITOR AND ANYTHING ELSE. The law makes serving as auditor an exclusive position. It lists other offices you just can't hold if you are an auditor, including town clerk, town treasurer, selectman, first constable, collector of current or delinquent taxes, trustee of public funds, town manager, road commissioner, water commissioner, sewage system commissioner, sewage disposal commissioner or town school director.
It also prohibits the spouse of any of these officers or any person who assists any of these officers from serving as auditor. 17 V.S.A. § 2647.
So we come to the wife of the constable, who has agreed to serve as auditor. Is this a problem? It is. When it comes time to audit the constable's books, she would be reviewing her husband's accounts. As long as her husband is the constable, she should decline to take the position of auditor.
BINDING AMENDMENTS. Is an amendment to a line item in the budget, adopted at town meeting, binding on the select board? For example, the line item for supplies is $10,000. A voter makes a motion, which is seconded and approved to decrease the line item for supplies to $8,000.
When the voters specifically alter a line item in a town budget, that vote is binding on the select board, and the board may spend no more than the amount agreed upon by the voters for that item.
OPEN MEETING MATTERS RETURN TO 'CONTENTS'
BUDGET COMMITTEES AND THE OPEN MEETING LAW. A union high school district elects a budget committee. The budget committee functions independently of the union high school board and contains no members of the union high school board. The budget committee's charge is to review the school budget and submit a budget analysis that is published in the annual school district report.
Is the budget committee a public body subject to the open meeting law?
The law defines a public body, in part, as: "any board, council or commission of the state or one or more of its political subdivisions, any board, council or commission of any agency, authority or instrumentality of the state or one or more of its political subdivisions, or any committee of any of the foregoing boards, councils or commissions . . . ." 1 V.S.A. § 310(3).
The budget committee, as an elected board of the union school district (a political subdivision of the state), is a public body. As a public body, its regular meetings would have to be set by resolution of the budget committee, 1 V.S.A. § 312(c)(1). A special meeting requires posting in or near the clerk's office and in at least two other public places in the school district at least 24 hours before the meeting. In addition, notice must be given, either orally or in writing, to each member of the budget committee. 1 V.S.A. § 312(c)(2).
"Publicly announced" is defined as notice being given to an editor, publisher or news director of a newspaper or radio station serving the area of the state in which the public body has jurisdiction and to any of the above who requested to be notified of special meetings. 1 V.S.A. § 310(4).
SCHOOL MATTERS RETURN TO 'CONTENTS'
PURCHASING A NEW SCHOOL. A school district wants to purchase a town-owned building and renovate it for a new school. How can this be done?
School districts must have voter authorization to purchase buildings or sites for school purposes. 16 V.S.A. § 562(7). The school board will need to ask the district voters to authorize the purchase of the building and follow it with an article either to bond for the renovations or to borrow for the renovations. Bonding or borrowing for more than five years requires voting by Australian ballot. 24 V.S.A. §§ 1758 and 1786a. If the district decides to borrow for more than five years rather than bond, the notice requirements are the same as for a bond issue.
In either case, the school district must publish a notice of the meeting in a newspaper of general circulation in the municipality for three consecutive weeks on the same day of the week with the last publication to be not less than five days before the meeting and not more than ten days. Notice of the meeting must also be posted in five public places in the school district for two weeks immediately preceding the meeting. 24 V.S.A. § 1756.
If the school board decides to bond, it must hold a public informational hearing within ten days of the vote, and the hearing must be warned for ten days. The statute even lists what information the school board must provide to the voters. 17 V.S.A. § 1758(c). The school district also has to state what percentage of the cost of the building or renovation would not be covered by state construction aid. 17 V.S.A. § 1758(b). With the changes occurring because of Act 60, it would behoove the school board to talk with the Department of Education about what, if any, school construction aid is or would be available to the district.
WHAT TO DO WITH A SURPLUS. There was a school district surplus of $150,000 on June 30, 1997. The union school board used $75,000 to reduce this year's tax request and voted to place the remaining $75,000 in a reserve account. Who ought to make that decision?
Only the voters can create a reserve account. 24 V.S.A. § 2804. If the school directors wish to retain the remaining $75,000 to help defray next year's school expenses, the board must warn an article for consideration at an annual or special union school district meeting asking the voters for permission to set that money aside. If the school board doesn't warn a special meeting for voter approval of the reserve fund, or if the meeting is warned and the voters reject the creation of a reserve fund, the remaining $75,000 must be used to further lower district assessments.
That rule is not unique to the school district. The basic law on budgets is found in 17 V.S.A. § 2664 which essentially states that the voters appropriate money for town expenses and for highways. Town general fund budgets, whether calendar year or fiscal year, appropriate money for one year. When the year ends, the authority to spend the money appropriated expires.
If the general fund has a surplus, fund balance or carry forward, it is built into the next year's budget and, if spending does not increase dramatically, decreases the amount to be raised in taxes. If the select board wishes the voters to consider setting some of the surplus aside for capital improvements, computers, etc., the select board must warn an article asking the voters to approve the creation of a reserve or sinking fund with an initial appropriation of all or part of the surplus. If the voters approve the creation of a reserve or sinking fund, 24 V.S.A. § 2804, that money can then be "reserved." If the voters disapprove the creation of such funds, the money is applied against the amount necessary to be raised in taxes.
Neither the select board nor the school board has authority to set money aside on its own initiative nor does it have authority to carry forward surpluses in the general fund account year after year.
The only exception to this budget rule is the highway budget. "The funds raised from town highway taxes shall not be used for any purpose other than that for which the tax was voted, . . . If in any year money so voted is not expended, it shall be applied for the same purpose the following year." 19 V.S.A. § 312.
TOWN CLERK MATTERS RETURN TO 'CONTENTS'
TOWN CLERK'S CHECKING ACCOUNT. The town clerk gets a salary in lieu of fees. She keeps the fees she receives in a checking account under her own name, and turns the fees into the town treasurer quarterly, as required 32 V.S.A. § 1224. What should she do with the interest?
If the clerk is keeping her fees in a checking account and turning them over to the treasurer quarterly, any interest accruing during that period should be paid to the treasurer as well. The fees belong to the town as does the interest.
It would be to everyone's benefit if the fees paid to the town clerk were deposited directly into the general fund account by the treasurer, rather than using a checking account in the clerk's name.
KEEPING THE CLERK'S DESK SACRED. The town clerk of a small town is worried. Since the town office is the working, meeting and gathering place for all town officers, she is concerned that her desk is used by other town officers and that items are being misplaced or lost. What can she do about this?
The town clerk is the custodian of the records in the office, and needs to assure that those records are secure. Lock up the desk and keep records secured from prying hands during evening meetings. It's your duty.
MISCELLANEOUS MATTERS RETURN TO 'CONTENTS'
KEEPING SEPARATE ACCOUNTS IN A FIRE DISTRICT. In the past, the fire department has held funds in accounts separate from the fire district accounts. The funds in those accounts are not reconciled by an officer of the fire district nor are they audited by officers of the fire district. The new treasurer wonders if this is appropriate.
In this town, the fire department is a creature of the fire district. It does not stand alone. Monies collected by the fire department through coin drops and other department events belong to the fire district. All monies collected by the fire department should be placed in accounts that are reconciled and audited by fire district officials and purchases out of those accounts should be authorized by signed orders of the prudential committee.
Organizing finances in this manner protects the firefighters, the department and the district from any accusations of mishandling or misappropriation of monies. And it's the law.
HOW TO FILL A JP VACANCY. A justice of the peace has died. Now what? If a Republican justice resigns or dies, the Republican town committee chair must warn a meeting of the town committee. The Democratic chair would follow the same procedure in the case of the resignation or death of a Democratic JP. The chair must provide notice the meeting of the town committee at least five days prior to the meeting. The notice must be in writing and sent to all members of the town committee. 17 V.S.A. § 2383.
When the committee convenes, it takes nominations for the position of JP. The governor's office generally prefers to have two or three names from which to choose. If there is a contest for the nominations, the vote must be taken by written ballot. 17 V.S.A. § 2316.
When the committee has nominated the appropriate number of persons, it forwards its list to the Office of the Governor, 109 State Street, Montpelier, Vermont 05609-0101. The governor may choose from among the names forwarded by the town committee or may appoint a person of his or her own choosing.
GIFT OF LAND TO THE TOWN. What procedures were in place for the select board to accept gifts of land? Title 10, Chapter 155 allows the select board to accept land for the purpose of preserving the present uses of the land; preventing residential and commercial development; preserving and enhancing scenic natural resources; strengthening the base of the recreation industry or increasing employment, income, business and investment; and enabling citizens to plan orderly growth. 10 V.S.A. § 6301.
Land donated to the municipality for other purposes triggers another set of criteria. Since the acceptance of such land reduces the grand list and increases everybody's tax bill accordingly, a vote ought to be held. Let the select board ask the voters if they wish to accept the donation of land.
Be careful about acceptance of commercial property. Towns are not in the business of receiving, buying and/or selling property. At least one town has lost a court battle trying to compete with private business.
NOTARY EDUCATIONAL SEMINARS RETURN TO 'CONTENTS'
We are pleased to announce that more notary educational seminars have been scheduled for this spring and summer.
Our selected speaker, Justice Alfred E. Piombino, is recognized as a national expert and dean of American Notaries. He has conducted over three thousand educational seminars for government, universities and trade associations. Mr. Piombino's lectures are interesting, informative and entertaining and we highly recommend that Vermont notaries attend.
We have six seminars scheduled. Registration is $35 and each seminar runs from 6:30-9:00 pm.
The schedule is as follows:
You may e-mail Notary Supervisor Kathy White, at kwhite@sec.state.vt.us, or call her at (802) 828-2308 for registration information.
- Monday, April 27: Caledonia Superior Court House, St. Johnsbury.
- Tuesday, April 28: Burlington City HalL.
- Wednesday, April 29: St. Albans Town Hall, St. Albans Bay.
- Tuesday, June 23: Lamoille Superior Court House, Hyde Park.
- Wednesday, June 24: Montpelier City Hall.
- Thursday, June 25: Weybridge Town Hall.