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Friday, August 27, 2021

Updated 8/27/2021! Effective June 14, 2021, the Governor lifted all COVID-19 pandemic related restrictions. Universal guidance is no longer in effect. As of Tuesday night at midnight on the evening of June 15, 2021 the Governor’s declared State of Emergency was lifted as well. This means that all the temporary legislation that was passed in response to the COVID-19 crisis, which was only effective during Vermont’s declared State of Emergency (Acts 92, 102, 105, 106, 113), has expired. In response to questions posed by our members concerning this order, the Municipal Assistance Center (MAC) has assembled the following information regarding what ending the State of Emergency means and how it affects municipalities. 

Please also refer to the Vermont Forward Plan for additional information and guidance.

This is not a comprehensive discussion of this topic. For assistance with the response to a specific question, please contact your town attorney or the VLCT Municipal Assistance Center at (800) 649-7915 or info@vlct.org.

New 8/27! What other ways can we mitigate and manage the transmission and effects of COVID-19 in our municipality?

In addition to 18 V.S.A. § 613(a), a local legislative body and the town health officer acting as the local board of health may issue discrete, targeted health orders or emergency heath orders, in order to prevent, remove, or destroy any public health hazard or to mitigate a significant public health risk pursuant to 18 V.S.A. §§ 126 and 127. Note that Executive Order No. 06-21 (COVID-19 Post Emergency Recovery Activities issued June 15, 2021) requires  local boards of health to consult with and abide by the recommendations of the Commissioner of the Vermont Department of Health prior to taking any action regarding isolation or quarantine of an individual. It also requires town health officers to work with and assist the Vermont Department of Health.

It is unclear whether the Governor, citing the Executive Order mentioned above, would require health orders related to COVID-19 and issued pursuant to sections 126 and 167 to also be approved by him. For that reason, local boards of health should contact the Department of Health Duty Officer at 802-864-7240 or 800-640-4374 and/or talk with their town attorney prior to issuing any COVID-19 related health order.

Updated 8/27! Without the Governor’s State of Emergency, can we still implement a town-wide mask mandate?

VLCT MAC thinks that municipalities have the authority to impose a local mask rule applicable town-wide (as opposed to just on municipally owned property) under their own authority to make and enforce rules to prevent, remove, or destroy a public health hazard and to mitigate a public health risk pursuant to 18 V.S.A. § 613(a). Under this law before such rules can be implemented, they must first be approved by the VT Commissioner of Health and posted and published in the same manner that ordinances are required to be posted and published.

However, recent action from the Governor calls this opinion in question. The Governor has taken the position that Executive Order No. 06-21 (COVID-19 Post Emergency Recovery Activities issued June 15, 2021), supersedes 18 V.S.A. § 613(a) and requires all policy adoptions or changes related to the COVID-19 response or recovery to be approved by the Governor.  

For practical purposes, whether the Governor’s Executive Order actually supersedes 18 V.S.A § 613(a) isn’t a central concern at this time, as the Governor and Commissioner work together and will use the same considerations to determine when and if a local mask mandate is appropriate. Brattleboro recently passed a community mask mandate, which was rejected by the Governor. In rejecting Brattleboro’s request, the Governor’s office cited the town’s most recent COVID-19 case and vaccination rates as well as its community’s COVID-19 related hospitalizations. Municipalities nonetheless shouldn’t be discouraged from requesting the right to implement one. Depending on the situation, the Governor may approve a mandate that complies with the Centers for Disease Control and Prevention’s mask recommendations and/or one that is in response to its own COVID-19 situation including high hospitalization or infection rates or is targeted to particularly high-risk environments or activities. And even if the request is rejected, it will at least convey directly to the Governor the concerns of the growing number of municipalities that adopted them.

Updated 8/19! Can we still hold remote meetings/hearings?

Yes, but the circumstances for doing so have reverted back to the conditions and circumstances for doing so in the underlying Open Meeting Law. Act 92 set forth temporary Open Meeting Law procedures in response to COVID-19, but these will soon expire (on the evening of June 15 at midnight) with the lifting of the Governor’s State of Emergency declaration. Local public bodies, however, can still conduct hybrid meetings (in-person and remote) just as they could prior to Act 92’s enactment, albeit with a few more requirements. Under the Open Meeting Law, a member of a public body may participate and vote at a meeting by electronic means (e.g., speakerphone, Zoom, Skype, etc.) as long as that member identifies themselves when the meeting is convened, and the member is able to hear and be heard throughout the meeting. Whenever one or more members attend electronically, voting must be done by roll call for any vote that is not unanimous. 1 V.S.A. § 312(a)(2). A quorum (a majority of the board) or more members of a public body may also participate in a meeting electronically when the agenda that has been posted for such a meeting designates at least one physical location where a member of the public can attend and participate in the meeting. At least one member of the body or at least one staff person or other designee must be present at that physical location. Each member that attends electronically must identify themselves when the meeting is convened and must be able to hear and be heard throughout the meeting. Any voting that occurs at the meeting that is not unanimous must be done by roll call. 1 V.S.A. § 312(a)(2). Please see our Open Meeting Law resources and our Hybrid Public Meeting Toolkit.

New 8/19! Who decides if a public body will offer remote access to its meetings for the public?

If the public body is appointed, it would be the board that appointed it. If the public body was elected, then it would be the public body itself. Even in the instance whereby a public body is elected, the selectboard can approve a motion or resolution encouraging remote access for all meetings of public bodies, though elected public bodies wouldn’t be compelled to comply as they are ultimately accountable to the voters and not the selectboard.

Updated 8/19! What happens to the public mask mandate that the Town or Governor instituted during the State of Emergency?

If it was instituted during the State of Emergency pursuant to 20 V.S.A. § 16 or the Governor’s Executive Orders, it is no longer valid. The Governor’s Executor Order authorized municipalities to “enact more strict local requirements regarding mask use than those set forth herein.” Pursuant to Title 20, Section 16 selectboards have the authority to adopt, amend, and rescind such rules, orders, and regulations (e.g. ordinances, bylaws, etc.) as may be necessary for emergency management purposes, but only so long as they are consistent with those of the Governor or any state agency. 20 V.S.A. § 16. Without the State of Emergency in place, municipalities can no longer rely upon this authority to impose a mask mandate. Consequently, any local mask mandate that was in effect was effectively rescinded by operation of law once the Governor lifted the State of Emergency. However, municipalities may still be able to use authority in 18 V.S.A. § 613(a) to adopt a mask mandate rule. Please see the questions below for more information.

New 8/19! Can we require proof of vaccination as a condition of entering town buildings?

Towns can ask people whether they’re vaccinated or not and even ask for proof of vaccination (broadly referred to as “vaccine passports”), however denying them physical access to an otherwise open public meeting or restricting their access to the town’s services, programs, and activities programs, services, or activities provided by the town without affording them suitable alternatives and accommodations could violate state and federal laws. Towns considering imposing such a requirement should consult with their town attorney prior to doing so.

Updated 8/19! Our Board of Civil Authority (BCA) wasn't planning on conducting a site inspection of a property subject to appeal. Do we have to now?

Yes. The law on tax assessment appeals ordinarily requires each property which is the subject of an appeal to be inspected by a committee of not less than three members of the Board of Civil Authority (BCA). The State, in recognition of the dangers posed by COVID-19, passed a temporary law, Act 106, which lifted the requirement for the BCA to physically inspect any property for an appeal held during the declared State of Emergency. Since the State only relaxed this requirement for the duration of the State of Emergency, municipalities must again physically inspect any property that is subject to an appeal or else face the prospect of having the appellant’s previous grand list value being reinstated on appeal. 32 V.S.A. § 4404(c).

The Governor has declared an end to the State’s COVID-19 restrictions. What does that mean?

It means a couple of things. First, on June 14, 2021, Governor Scott directed the Secretary of the Agency of Commerce and Community Development (ACCD) to “rescind all remaining mandatory Specialized and Universal Guidance measures set forth in the Vermont Forward Plan.” As the Governor said during his June 14th press conference, “all restrictions are lifted.” All temporary restrictions that were imposed on municipalities by the Governor’s executive order(s) and accompanying addenda are eliminated, effective June 14. In addition, whatever temporary authority they granted municipalities ceases to exist as well.

Second, the lifting of all COVID-19 related restrictions is not occurring simultaneously with the Governor’s declared State of Emergency expiration, which is still in effect until midnight on the evening of June 15th. This means that all the temporary legislation that was passed in response to the COVID-19 crisis, which was only effective during Vermont’s declared State of Emergency (Acts 92, 102, 105, 106, 113), will remain in place until that time. Beginning June 16, municipalities and public bodies will have to once again comply with the underlying Open Meeting Law requirements for meetings, hearings, and conducting business. The Secretary of State’s office has issued a statement regarding the impact of the expired State of Emergency on the temporary changes to Vermont’s Open Meeting Law, which you can review at https://sos.vermont.gov/secretary-s-desk/about-the-office/covid-19-response/.

In short, all State imposed COVID-19 restrictions are lifted effective the morning of June 14, whereas the temporary authority given to municipalities via Acts 92, 102, 105, 106, and 113 will expire at the end of the State of Emergency, which occurs on the evening of June 15 at midnight.

Though all restrictions are lifted and the State of Emergency will end the night of June 15, the ACCD says that business operations (which includes municipal operations) seeking operational recommendations should reference the Vermont Department of Health website and the Department of Labor’s VOSHA Memo on workplace safety. For more information and recommendations please see the Vermont Forward Plan website.

In addition, though not required, municipal operations may choose to follow the Department of Health’s overall health guidance available at https://www.healthvermont.gov/covid-19/protect-yourself-others, which summarized, states that individuals should:

  • Get the COVID-19 vaccine;
  • Stay home if sick;
  • Wash hands;
  • Take care when gathering;
  • Stay at least 6 feet apart;
  • Wear a mask if needed; and
  • Consider travel plans.

 

What happens to all the temporary laws the Legislature passed to deal with COVID-19?

The majority of the temporary laws attached to the declared State of Emergency will expire as of midnight on the evening of June 15. Most of the temporary laws that the Legislature passed last year to deal with COVID-19 (Acts 92, 102, 105, 106, 113) were tied to the declared State of Emergency and thus will expire by operation of law automatically when the State of Emergency is lifted. However, a few laws (Acts 1, 162) that were tied to calendar year 2021 are still in effect. Act 1 deals solely with municipal annual meetings and, amongst other things, allows towns to postpone the date of annual meetings. Act 162 allows municipalities that normally vote from the floor at their special or annual meetings to instead use the Australian ballot method of voting. Both of these laws remain in effect through December 31, 2021.

Can we still vote by Australian ballot at an upcoming special municipal meeting even though we never adopted the Australian ballot system of voting?

Yes. In response to the concerns posed by COVID-19, the Vermont Legislature passed Act 162, which is a temporary law that allows municipalities that normally vote from the floor at its municipality meetings (e.g., special or annual) to instead use the Australian ballot method of voting. In order to switch to Australian ballot, the selectboard must vote, by approval of a majority of its total membership, at a duly warned meeting to adopt the Australian ballot system of voting. As per the underlying law, only the municipality’s voters may vote to allow the switch to the Australian ballot system. However, Act 162 temporarily allows a municipality to apply the Australian ballot system to any, or all of its meetings held in the year 2021 by vote of its selectboard. Municipalities may take advantage of this law until the end of the calendar year 2021 when it will automatically sunset (expire) by operation of law.

Do we have to revert to our normal office hours?

How a town office or town building will remain open due to public health concerns is and always has been a decision for each elected official with their own office, the town manager, selectboard, and local health officer to make in consultation with the local emergency management director and the VT Department of Public Health. Town clerks and other independently elected town officers generally set their own office hours and can choose to limit their operations until further notice. In MAC’s opinion, since the town manager or selectboard has control over town buildings, they may decide to further limit their access, regardless of what other independently elected officials decide.

Without the Governor’s State of Emergency, can we require people to wear a mask when they enter municipally owned property?

Yes. Under the municipal manager form of government, the manager has “charge and supervision of all public municipality buildings . . . unless otherwise provided for by the selectboard.” 24 V.S.A. § 1236(4). Therefore, the municipal manager may make this decision unless the selectboard has made other arrangements. Alternatively, the selectboard could make this decision in those towns without the town manager form of government. In such an event, although we believe that municipalities could decline service to individuals who are not wearing a mask just businesses may, they would still have to provide an alternate way for those not wearing a mask to access their services, programs, and activities such as by offering on-line or curb-side services, remote access, or other innovative solutions.

Once the State of Emergency is lifted, can we charge penalties against those people who failed to renew their dog licenses?

Not quite yet. On March 30, 2020, Governor Scott signed into law Act 92 which automatically extended the life of any expiring license, permit, program, or plan issued by a municipality that was due for renewal or review during the declared State of Emergency for 90 days after it ends. The Act also authorized selectboards to extend any expiring deadline beyond the 90-day automatic extension. So, at the very least, towns will have to wait 90 days after the lifting of the Governor’s State of Emergency to assess a late fee for failure to timely license a dog and in some towns, this wait will be even longer. It’s advisable, though not mandatory, for municipalities to send out reminders informing dog owners of this new deadline. The new deadline is 90 days from June 15, which is September 13, 2021.

Can we waive the statutory penalties imposed for missing dog licensing deadlines?

Yes. Although the penalties for failing to license dogs on time is imposed by State law, the funds are retained by the town and, consequently, may be waived by the selectboard. If the selectboard intends to waive licensing penalties, it should include a clear expiration date of such waiver (which can be extended) if necessary.

What about other permit and license deadlines and expirations?

Act 92 applies to any license, permit, program, or plan issued by a municipality. Therefore, as with dog licenses, any license, permit, program, or plan that expires during the declared State of Emergency automatically remains valid for 90 days after the emergency. The State of Emergency ended at midnight on the evening of June 15, so this automatic extension goes until September 13, 2021.

Can we disconnect delinquent users of our water and sewer services for non-payment?

Yes. Act 92, which the Legislature passed last year to deal with COVID-19, imposed a moratorium on the disconnection of water and sewer service for the duration of the State of Emergency if payment of a valid bill or charge was delinquent. Specifically, it stated that a “municipality shall be prohibited from disconnecting a person from water or sewer services during a declared State of Emergency under 20 V.S.A. chapter 1 due to COVID-19.” Once the State of Emergency is lifted, municipalities can use all collection methods at their disposal (e.g. small claims court, distraint, tax sale, etc.) including disconnection so long as the statutorily prescribed process outlined in Title 24, Chapter 129 is followed.

Can we continue to close town highways for use as outdoor eating, retail, and public gathering spaces?

Yes. Selectboards may temporarily close or restrict the use of town highways for these and other purposes as the authority to do so is unrelated to the Governor’s emergency order authority. Specifically, 19 V.S.A. §§ 304 and 1110, 23 V.S.A. § 1112, and 24 V.S.A. § 2291(1) authorize selectboards to restrict or close the use of highways or to just set off portions of highways and sidewalks and regulate their use. This authority is frequently used to prevent damage that might otherwise occur to a highway, for example, during mud season but is not limited to those seasonal restrictions. Typically, such decisions are accomplished with the passing of a resolution or ordinance at a duly warned selectboard meeting.

Regardless of the method employed, if travel in the highway right-of-way is to be restricted in any way, notice must be posted in at least two public places in town and signs provided by the Agency of Transportation must be “conspicuously placed” at each end of the portion of the affected highway. 19 V.S.A. § 1110. Selectboards may also place physical barriers in the highway to prevent travel so long as they are clearly visible and accompanied by clear signage. 23 V.S.A. § 1112.

VTrans has partnered with the VT Agency of Commerce and Community Development (ACCD) to provide the following toolkit to help restaurants and towns evaluate whether to make streets, rights of way, and other public infrastructure available for outdoor dining, retail, or other public gatherings: https://accd.vermont.gov/content/interim-guidelines-use-public-highways-outdoor-eating-retail-and-public-gathering-spaces.

Towns should consult with their insurance providers and attorneys prior to implementing any restrictions.

Towns should consult with their insurance providers and attorneys prior to implementing any restrictions.