A policy is a course of action, guiding principle, procedure, or strategy that is adopted by a municipal public body (e.g., a selectboard or board of library trustees). Policies are executive in nature and are oriented inwards to guide internal decision-making processes. Generally, policies apply to employees, town facilities or the public body itself.
A policy is designed to influence and determine decisions in the course of conducting certain municipal affairs. Policies should establish clear-cut, orderly, and systematic methods for handling certain administrative duties and internal town operations. They should be flexible enough to meet changing situations and conditions, yet conditions yet provide enough consistency and continuity in making decisions to ensure predictability.
Although policies generally do not have regulatory enforcement authority as compared to ordinances, policies nevertheless are useful in that they clearly define a municipality’s standards and set reasonable expectations for the applicable municipal topic.
An ordinance is a legislative act by the legislative body of a municipality (selectboard, council, aldermen, trustees). Black’s Law Dictionary defines an ordinance as “[a]n authoritative law or decree; specif[ically], a municipal regulation, esp[ecially] one that forbids or restricts an activity.” Black’s Law Dictionary (10th ed. 2014). In contrast to a policy, which governs internal operations, an ordinance is “an expression of municipal will affecting the conduct of the inhabitants generally, or of a number of them under some general designation.” City of Barre v. Perry & Scribner, 82 Vt. 301 (1909).
Municipal ordinances carry the state’s authority and have the same effect within the municipality’s limits as a state statute. Once adopted according to statutory process, they become legally enforceable local laws. A municipal ordinance is designated either as a civil or criminal offense and may carry a fine or penalty of up to $800. A civil ordinance is generally enforced in the Vermont Judicial Bureau, the court that has statewide jurisdiction over civil violations.
Local control, however, exists in Vermont exclusively by permission from the Vermont General Assembly. Because Vermont is a Dillon’s Rule state, municipalities have only those powers and functions specifically authorized by the Vermont Legislature, and such additional functions as may be incident, subordinate, or necessary to the exercise thereof. Therefore, municipalities may only adopt ordinances and policies on matters that the legislature has authorized.
A statute giving authority for local control will either be self-executing or enabling. A self-executing statute confers upon municipalities the immediate authority to act without first adopting an ordinance. For example, under 24 V.S.A. § 2201(b), municipalities are given the power to issue penalties for certain solid waste violations whether or not an ordinance is first adopted. On the other hand, a statute granting only enabling authority means the municipality must first adopt an ordinance pursuant to 24 V.S.A. §§ 1972 et seq. before it can exercise control over the matter.
Examples of Policies and Ordinances
Municipal authority to make local law derives from state statute or municipal charter. The subjects of local legislation are varied and scattered throughout many different titles of the Vermont Statutes Annotated. The location of most municipal authority is located in 24 V.S.A. § 2291. This statute includes 28 different provisions that authorize municipalities to assert local control on a specific matter. Some of the more common ordinances located in this statute include the authority to regulate dogs, solid waste, parking, and speeding. Titles 19 and 23 that focus on highways and motor vehicles respectively are other locations within state law that offer options for municipal regulation.
Examples of municipal policies include a personnel policy authorized under 24 V.S.A. § 1121 that establishes provisions of employment, leave time, health benefits, and work conduct; a highway maintenance policy that articulates how and when class 4 highways are maintained or plowed; and a purchasing policy that sets standards for bidding on certain municipal expenditures.
What Are the Procedures for Adopting a Policy Versus an Ordinance?
Because a policy is administrative in nature rather than regulatory, it is relatively simple to adopt. Generally, all that is required for adoption is a majority vote by the legislative body of a municipality or other board in favor of the policy at a duly noticed meeting under the Open Meeting Law (1 V.S.A. §§ 310 et seq.).
Adopting an ordinance requires closely following the statutorily prescribed procedures set forth in 24 V.S.A. §§ 1972 et seq., which include posting the ordinance and publishing it in a local newspaper. It is important to follow these procedures, as failure to adhere to them may result in an invalid ordinance. In re Bill, 168 Vt. 439 (1998). To help member municipalities in this regard, VLCT has created an Ordinance Adoption, Amendment, or Repeal Toolkit (Ordinance Resources below) that details all the statutorily required steps for adopting an ordinance.
What Should We Use: A Policy or an Ordinance?
When weighing whether to put a rule or procedure into the form of either a policy or an ordinance, consider these key questions:
• What is the intended purpose and scope of the proposed rule?
• What is the specific municipal topic or issue?
• Is there enabling statute that would allow enactment of an ordinance?
• What is the most effective and appropriate method of enforcing the rule or procedure?
The answer may be evident immediately – for example, if the conclusion is that there is no legislative authority given to your municipality to enact an ordinance on the topic.
Remember that policies generally do not have the authority to provide for penalties or fines. For this reason, policies are a better fit for when a municipality wants to explain an internal administrative process or direct the behavior of municipal officials.
On the other hand, if your goal is to “describe a permanent rule of conduct … [that] creates liability or affects the people of a municipality in an important or material way,” an ordinance should be adopted. Herbert v. Mendon, 159 Vt. 255 (1992).