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Friday, February 12, 2021

In response to questions posed by our members about how COVID-19 affects the upcoming 2021 annual town meeting, the Municipal Assistance Center has assembled the following information related to the use of Australian ballot voting, voter backed petitions, and candidate requirements. For additional information about other COVID-19 related resources, please visit our Coronavirus Resources and Recommendations webpage, https://www.vlct.org/coronavirus. Please refer to our 2021 Town Meeting webpage for additional deadlines, model documents, and other informational resources. Please note that many questions are related, so we recommend reviewing the entire FAQ.

VLCT recommends against holding any in-person meetings until such time as the State declares it safe to do so. In our opinion, the only safe course of action, from a public health and legal perspective, is to either 1) switch to Australian ballot voting this year and hold your Australian ballot public informational hearing remotely, or 2) postpone your annual or special town meetings. The risk to the public health is simply too great and the legal uncertainties too many for towns to hold such meetings at this time. In addition to the guidance the Vermont Legislature has provided in recent temporary town meeting legislation (Act 162 and Act 1 (H.48)), the Agency of Commerce and Community Development (ACCD) issued “Special Guidance for Annual Meetings (Town Meeting)” on January 27, 2021, which is available in Section 13.1: https://accd.vermont.gov/news/update-new-work-safe-additions-stay-home-stay-safe-order#meetings-of-public-bodies. This guidance contains mandatory safety and health guidance that towns must follow when conducting in-person business and when holding any in-person public meeting, such as a floor town meeting or Australian ballot informational hearing. Towns must adhere to both the “Mandatory Health & Safety Requirements for All Business, Non-Profit & Government Operations” listed at the top of the page as well as the “Special Guidance for Annual Meetings (Town Meeting).”

Act 1 (H.48) authorizes the Secretary of State to order or permit supplemental election procedures related to the provisions within the bill. A directive pursuant to this authority was issues on January 20, 2021. You can find the directive and accompanying memo online at https://sos.vermont.gov/elections/about/covid-19-response/. The directive contains options for election procedures that a town may, not must, make to its elections in 2021.

These FAQs have been developed by VLCT for informational purposes only and does not constitute legal advice or a substitute for legal counsel. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. You should not rely or act upon this information without seeking professional counsel. VLCT makes no express or implied guarantee of legal enforceability or legal compliance.  VLCT also does not represent that any FAQ is appropriate for any particular municipality. Please seek legal counsel before taking action based on anything found in these FAQs.

Updated 2/2! What does Act 1 (H.48) temporarily change for annual meetings in 2021?

The Governor signed Act 1 (H.48) on January 19, 2021. The law does the following:

  • Allows municipalities to postpone their 2021 annual meeting to a later (and potentially safer) date. It will be up to the municipality to determine the later date.
  • Allows local legislative bodies to require municipal clerks to mail 2021 annual meeting early voter absentee Australian ballots to all active registered municipal voters to encourage absentee voting.
  • Clarifies that municipal officers will serve until the annual meeting and when successors are chosen if a local legislative body chooses to move the date of the 2021 annual meeting.
  • Authorizes the Secretary of State to order or permit supplemental election procedures related to the provisions within the bill. A directive pursuant to this authority was issued on January 20, 2021. You can find the directive and accompanying memo online at https://sos.vermont.gov/elections/about/covid-19-response/.

Please also review an additional FAQ resource that the Vermont Legislative Counsel created here: Legislative Counsel Act 1 (H.48) FAQs

Updated 2/2! Can we move the date of our annual meeting? If so, how?

Yes, Act 1 (H.48) (2021) temporarily allows municipal legislative bodies to change the date of the annual town meeting to a later date in 2021. The selectboard must vote, by approval of a majority of its total membership, at a duly warned meeting to postpone its annual meeting. We recommend including reference to H.48 (2021) in the motion, which must include a specific date to which the meeting is postponed. Keep in mind all of the related deadlines (e.g. for warning and notice, candidate consent forms, voter-backed petitions, town report, etc.) will shift as a result. The vote to postpone your annual meeting can happen even if you have already posted the warning for a March 2, 2021 meeting.You will just need to ensure you move the meeting to a date far enough into the future in order to meet the warning and notice deadline requirements for your rescheduled town meeting (i.e., not less than 30 nor more than 40 days before town meeting).

If your legislative body doesn’t use the authority granted by Act 1 to change the date of town meeting and it’s been warned to take place on its ordinary date, then you still can technically postpone a meeting through adjourning/continuation. Towns are required by law to meet every year on the first Tuesday of March for the election of officers and the transaction of other business, but that same law allows such meeting to be adjourned, i.e. postponed to another date. 17 V.S.A. § 2640(a). In order to postpone it, at least three voters would need to assemble at the scheduled meeting place. Ideally, one person would be the moderator who would be accompanied by two additional voters who will be needed to make and second motions. The moderator would start the meeting, then one voter would make a motion to adjourn it to a date and time certain (e.g. June 30th) with the other seconding the motion. The advantage is that if the annual meeting were “postponed” in this manner, it would not have to be re-warned. The disadvantage is that there would be no way to guarantee that members of the public would not show up, which of course is the problem you must avoid in the first place. This course of action would require as much notice of the selectboard’s intentions to postpone town meeting as possible beforehand to avoid unsafe gathering at the meeting place. Even so, it’s clear the Legislature and the ACCD (Agency of Commerce and Community Development) have shown a strong preference to move the date of town meeting using Act 1, as this removes the necessity to have any gathering.

New 2/2! Can the selectboard vote to delay town meeting or switch to Australian ballot if it has already posted and noticed the town meeting warning?

Yes. Selectboards can vote to move the date of town meeting using Act 1 (H.48) or switch to using Australian ballot using Act 162 even if your selectboard has already noticed its town meeting warning and/or held the informational hearing. The last day the selectboard could vote to move the date of town meeting would be the day before your annual town meeting is scheduled. If the meeting date is changed, all applicable deadlines will also be delayed accordingly. The selectboard can also vote to switch to the Australian ballot voting method at any time; however, it will need permission from the Secretary of State to do so if it doesn’t also move the date of town meeting. This is because the deadline for warning such a vote would have already passed. Act 162 allows the Secretary of State to waive statutory deadlines necessary to apply this system of voting to its meeting in order to encourage its use.

Updated 1/26! Can the selectboard require the town clerk to mail ballots to all legal voters? If so, how?

Yes. Act 1 (H.48) allows the selectboard to have the clerk mail all active registered municipal voters an early voter absentee ballot to encourage absentee voting in 2021. The selectboard must vote at a duly-warned meeting to direct the town clerk to do so. We recommend including reference to H.48 (2021) in the motion which must pass by majority vote.

New 1/22! What happens to currently elected officers whose terms expire on March 2, 2021 if we postpone our town meeting to a later date in 2021?

Act 1 (H.48) clarifies that the current municipal officers serve until the annual meeting is held and until successors are chosen (e.g., at special town meeting election) which reflects 17 V.S.A. § 2646.

Updated 2/2! Our town votes from the floor on Town Meeting Day. Can we continue that practice?

Even though “in-person annual town meetings are strongly discouraged this year” by the State, they are not explicitly prohibited. However, any in-person meeting that is held must comply with mandatory health and safety requirements from the CDC, VT Department of Health, the Agency of Commerce and Community Development (ACCD), including ACCD’s new special guidance for town meetings. The ACCD issued “Special Guidance for Annual Meetings (Town Meeting)” on January 27, 2021, which is available in Section 13.1 near the bottom of their webpage: https://accd.vermont.gov/news/update-new-work-safe-additions-be-smart-stay-safe-order. Towns must adhere to both the “Mandatory Health & Safety Requirements for All Business, Non-Profit & Government Operations” listed at the top of the page as well as the “Special Guidance for Annual Meetings (Town Meeting)” near the bottom. These requirements are related to building capacity limits, health screenings, cloth facial coverings, contact tracing, social distancing, public education, sanitizing, and hand washing, among many others.

Additionally, the Secretary of State has issued a directive on permitted processes for local elections in 2021, which puts in place several temporary procedures that municipalities should consider implementing to help ensure Vermonters can vote safely in the 2021 annual meeting. You can find the directive and accompanying memo online at https://sos.vermont.gov/elections/about/covid-19-response/. The directive contains options for election procedures that a town may, not must, make to its elections in 2021.

If you proceed with a floor meeting, you will also need to work in close consultation with your town attorney so they can guide you through these mandatory requirements, practical considerations, and potential legal consequences that will arise as a result.

New 2/2! Are all large public gatherings, including meetings of public bodies, prohibited or just social gatherings?

They are not prohibited, but the State strongly discourages all public gatherings, recommending instead that people meet remotely. This goes for meetings of public bodies, town meeting, and Australian ballot informational hearings. The State says in its most recent “Be Smart, Stay Safe” order that “[d]uring the State of Emergency, organizations should conduct regular meetings remotely such as regular select board meetings and school board meetings whenever possible to prevent prolonged interactions between households.”

Despite this strong recommendation not to hold any in-person public gatherings, if a town does so, it must comply with mandatory health and safety requirements from the CDC, VT Department of Health, and the Agency of Commerce and Community Development (ACCD). Current guidelines place the mandatory maximum occupancy limits at 50 percent fire capacity, 1 person per 100 square feet. The full rules are at https://accd.vermont.gov/news/update-new-work-safe-additions-be-smart-stay-safe-order.

New 2/2! Does VLCT recommend holding our annual or special town meetings or Australian ballot public informational hearings in-person?

No, we recommend against holding any in-person meetings until such time as the State declares it safe to do so. In our opinion, the only safe course of action, from a public health and legal perspective, is to either 1) switch to Australian ballot voting this year and hold your Australian ballot public informational hearing remotely, or 2) postpone your annual or special town meetings. The risk to the public health is simply too great and the legal uncertainties too many for towns to hold such meetings at this time.

New 2/2! What is our liability exposure if we hold town meeting from the floor?

We don’t know, which is exactly why you should not conduct an in-person town meeting of any kind until the State deems it safe to do so. If your town is considering conducting any portion of its annual town meeting in person, you will need to work in close consultation with the town attorney. You should also contact your insurance carrier for guidance and/or coverage information. A member of the PACIF Underwriting team at 802-229-9111 or underwritingdept@vlct.org can answer questions concerning the town’s liability coverage.

Towns may face liability exposure in the unfortunate event that the town doesn’t adhere to all safety rules and someone contracts COVID-19 from the meeting or voters are not afforded their constitutional right to vote because they’ve been denied entry for any reason including because the capacity limit has been reached. There are also other legal and constitutional issues at play. Given the uncertainty regarding towns’ levels of liability exposure, the safest course of action is to either switch to Australian ballot voting and hold your public informational hearing remotely, or 2) change the date of town meeting using the authority granted by Act 1 (H.48). The State’s guidance says, “While municipalities are empowered to make individual decisions to fit their circumstance, mask mandates and building capacity limitations may present municipalities with difficult legal questions if voters are turned away or if the meeting puts voters in an unsafe situation.” The best way to avoid the potential liability exposure posed by these questions is to not hold an in-person town meeting

New 1/26! We want to continue holding Town Meeting from the floor, but the building we ordinarily hold it in is too small to properly social distance. How do we change the location of Town Meeting to a larger venue?

The selectboard decides by majority vote where Town Meeting is held, so it can make this change by including the location of the new venue in the Town Meeting warning. The Town Meeting warning needs to be posted not more than 40 nor less than 30 days before Town Meeting.

Updated 2/23! Can we hold town meeting, including floor voting, remotely?

No. Except for Brattleboro’s Representative Town Meeting, there is currently no explicit authority in Vermont law for municipalities to conduct town meetings that are held from the floor by electronic means.

New 2/2! What if we can't comply with the guidelines or anticipate more people attending than is allowed?

Then the selectboard should consider adopting the Australian ballot system or postpone its Town Meeting Day. In response to the concerns posed by COVID-19, the Vermont Legislature passed Act 162 and Act 1 (H.48), both of which are in effect now. The temporary laws allow municipalities that normally vote from the floor on Town Meeting Day to instead use the Australian ballot method of voting or to move Town Meeting Day to some later date in the calendar year by vote of the selectboard. Municipalities whose meeting locations don’t allow for social distancing or expect more people than the maximum capacity currently allowed may find these alternatives helpful during the ongoing pandemic.

New 1/26! We typically vote some questions from the floor and others by Australian ballot. Is there a way we can continue that practice? If so, can we postponse only the floor portion of the meeting?

Yes. The Secretary of State’s Directive on Permitted Processes for Annual Meetings specifically states that, “If a municipality typically conducts its annual meeting by voting on some questions at a floor meeting and other questions via Australian Ballot, that municipality may conduct the Australian ballot portion of the business on the standard annual meeting date and may postpone the portion of that meeting conducted from the floor until a later date pursuant to Act 1 (H. 48).” You can find the directive and accompanying memo online at https://sos.vermont.gov/elections/about/covid-19-response/

How do we 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. Under current 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 (e.g., special and annual) held in the year 2021 by vote of its selectboard.

New 1/4! Does Act 162 allow us to vote on some questions from the floor and others by Australian ballot?

While the temporary law doesn’t explicitly say one way or the other, we don’t believe that Act 162 allows for such bifurcated voting at town meetings held in 2021.

Ordinarily, this approach would be permissible (and still is) if a town had previously approved voting on any or all public and/or budget question(s) by Australian ballot, thereby leaving all other questions to be disposed of from the floor. However, Act 162 on its face seems to contemplate an all or nothing option if switching to the Australian ballot system of voting for this year. The controlling language of Act 162 reads, in relevant part:

Notwithstanding the provisions of 17 V.S.A. § 2680(a) and 16 V.S.A. § 711e that require the voters of a municipality to vote to apply the provisions of the Australian ballot system to the annual or special meeting of the municipality, in the year 2021, any municipality may apply the Australian ballot system to any or all of its municipal meetings held in the year 2021 by vote of its legislative body.

The use of the term "meetings" and not "public question(s)" or "budget article(s)” are notable when comparing this authorization to that provided for in 17 V.S.A. § 2680(a). This indicates that the Legislature intended only to give selectboards the authority to switch over to Australian balloting completely for an entire meeting. Keep in mind that the underlying purpose of Act 162 is to reduce in-person meetings in light of COVID-19 to eliminate risks to public health and safety, which is more likely using Australian ballot voting than it is voting from the floor.

New 1/19! What are the minimum articles that we are required to vote on using Australian ballot at our annual meeting?

The minimum articles that towns must vote on are the same whether the vote is from the floor or by Australian ballot. The required articles are:

Updated 2/2! Is there a date by which the selectboard must vote to adopt the Australian ballot system for town meeting 2021?

Ideally, this decision should be made as soon as possible. In terms of an absolute deadline, this decision would need to be made prior to the selectboard approving the warning for town meeting which is not less than 30 days before Town Meeting Day. Additionally, Town Meeting Day must be noticed not less than 30 days before the meeting.If your timing is short and you won't be able to switch to Australian ballot in time, you need permission from the Secretary of State to do so. (The Secretary of State, per Act 162, may waive statutory deadlines or other statutory provisions, related to a municipal election as necessary in order for a municipality to apply the Australian ballot system to its meeting.)

New 1/19! If our town usually begins its floor meeting on the Monday, Sunday, or Saturday preceding the first Tuesday in March, what day do we vote if we switch to Australian ballot?

All Australian ballot voting must occur on the first Tuesday of March, even if a town has previously voted to hold its floor meeting on one of the three days immediately preceding that date. 17 V.S.A. § 2640(b).

Updated 1/22!! What if something prevents us from voting by Australian ballot or we vote after the deadline to notice the town meeting warning?

The selectboard may request that the Secretary of State waive any statutory deadlines or other statutory provisions, or provisions set forth in a town’s governance charter or a school district’s articles of agreement, related to a town election as necessary in order for a town to apply the Australian ballot system to its meeting. The selectboard may also postpone the annual meeting pursuant to Act 1 (H.48) to allow for more time to prepare (see above).

New 12/9! If our selectboard decides to switch to Australian ballot for the 2021 town meeting, does it need to vote to switch back to floor voting for the 2022 town meeting?

No. The selectboard’s vote is only effective for the 2021 calendar year. After 2021, the town’s previous method of voting is automatically reinstated. From that point on, if the town wants to use the Australian ballot system to elect its officers, adopt its budget article(s), and/or vote on public question(s), it will have to vote at a special or annual meeting to do so. Once adopted, the system of voting will remain in place until the town votes to discontinue its use.

New 12/9! Once the selectboard votes to switch to Australian ballot voting, can it switch back?

Yes. The selectboard can always change its mind, so long as a majority of its members agree. The selectboard has the option to use the Australian ballot system for any or all of the town’s meetings (annual or special) for the calendar year 2021. If the selectboard votes to use it just for its annual meeting, it can subsequently vote to use it for any other meeting during the course of the 2021 year, regardless of its prior vote.

Updated 1/22 We’ve never used the Australian ballot system of voting. How does it work?

Australian ballot voting is a method of voting at local elections recognized by Vermont general law. The term “Australian ballot” refers to a system of secret voting on warned articles using a pre-printed ballot. The town clerk is the presiding officer for all Australian ballot elections. Australian ballot voting is distinguishable from “floor voting” and voting by “paper ballot,” both of which occur during traditional, open style town meetings where a moderator facilitates the discussion and voting on town business. For more information about Australian ballot voting, please refer to our Australian Ballot Info Sheet. For practical information on Australian ballot voting and to view a sample ballot, please visit the Secretary of State's Elections Division's webpage at https://sos.vermont.gov/elections/town-clerks/.

New 12/10! If we switch to Australian ballot, do we still need to elect a moderator?

Yes. The office of moderator is one of the offices that must be elected every year at a town’s annual meeting, regardless of how it votes. 17 V.S.A. § 2646(a).

Updated 1/22!! When do ballots have to be ready?

Ballots must be available not later than 20 days before the local election. 17 V.S.A. § 2681a(a). Please consult VLCT’s Municipal Calendar 2020-2021 for this and other relevant deadlines.Note that, if the selectboard postpones the annual meeting pursuant to Act 1 (H.48), all relevant dates should be changed to correspond with the day on which the municipality will hold its town meeting.

New 12/9! How do we present public questions using the Australian ballot system?

Public questions must be written in the form of a question, with boxes indicating a choice of "yes" and "no" directly under or to the right side of the public question. Some questions have required statutory language, such as a municipal vote to adopt the town manager form of governance. 24 V.S.A. § 1243. For sample town questions (articles), see our Model Town Meeting Articles resource

New 12/9! How do we elect candidates to local office using the Australian ballot system?

The person receiving the greatest number of votes for an office will be declared elected to that office. 17 V.S.A. § 2682. In addition to receiving the greatest number of votes for an office, a write-in candidate must also receive at least 30 votes or the votes of one percent of the registered voters in the town, whichever is less. 17 V.S.A. § 2682a.

Updated 1/22! If we vote by Australian ballot, do we have to hold an informational hearing?

Yes. The process for using the Australian ballot system requires a public informational hearing as a precursor to the vote. The selectboard must hold an informational hearing when a town uses this system of voting on any public or budget question. The informational hearing, which is administered by the selectboard, must be held within the 10 days immediately preceding the town meeting at which the Australian ballot system of voting is to be used. The purpose of the informational hearing is to afford the electorate an opportunity to discuss the article(s) on which they will be voting. The hearing serves as the debate component that would otherwise accompany voting when conducted from the floor and it has not been waived. If you are switching from a bifurcated meeting (part floor, part Australian ballot) to a full Australian ballot meeting pursuant to Act 162, you will only need one informational hearing for discussion of all warned items that will appear on the ballot.

New 12/9! Does the informational hearing have to be warned?

Yes. The informational hearing must be warned at least 10 days in advance of the hearing by posting notice of the hearing in at least two physical public places in town and in the town clerk’s office. Please consult VLCT’s online Municipal Calendar 2020-2021 for relevant deadlines. For more information and resources related to remote meetings, please consult our Remote Public Meetings Toolkit.

Updated 2/2! Can we hold the informational hearing remotely?

Yes, and it is strongly encouraged you do so. The State strongly discourages all public gatherings, recommending instead that people meet remotely. This goes for meetings of public bodies and informational hearings associated with Australian ballot voting. The State says that “During the State of Emergency, organizations should conduct regular meetings remotely such as regular select board meetings and school board meetings whenever possible to prevent prolonged interactions between households.” Despite this strong recommendation not to hold any in-person public body gatherings, if a town does so, it must comply with mandatory health and safety requirements from the CDC, VT Department of Health, and the Agency of Commerce and Community Development (ACCD). Current guidelines place the mandatory maximum occupancy limits at 50 percent fire safety capacity, 1 person per 100 square feet. The full rules are at https://accd.vermont.gov/news/update-new-work-safe-additions-be-smart-stay-safe-order. Any in-person informational hearing should also include the option of remote public access in order to provide access to those who feel that it is unsafe to attend in person.

Informational hearings may be held remotely because unlike town meeting, which is a meeting of the voters, an informational meeting is a meeting of a public body (i.e. the selectboard). Consequently, information hearings may be conducted by electronic means under the existing provisions of Vermont’s Open Meeting Law as modified by the temporary COVID-19 measures of Act 92. 17 V.S.A. § 2680(g)(1).

How do we hold a remote informational hearing?

All members, staff, and members of the public may attend and participate in the remote hearing (e.g., by telephone, Zoom, GoToMeeting, Skype, etc.). Each selectperson who attends electronically must identify themselves when the meeting is convened and must be able to hear and be heard throughout the hearing. The selectboard will not have to designate a physical location in order to meet and, therefore, no one is required to be physically present for the hearing. Otherwise, because this is technically a hearing hosted by the selectboard, the requirements of the Open Meeting Law must be met. For remote meetings, this means that the selectboard must post information on how the public may access the hearing electronically. This information must be included in the agenda and we recommend including it in all notices or announcements as well. Otherwise, the Open Meeting Law’s notice and agenda requirements remain the same. For more detailed guidance, a checklist, and models for remote hearings, please refer to our Remote Public Meetings Toolkit: https://www.vlct.org/municipal-assistance/municipal-topics/remote-public-meeting-toolkit and our Model Australian ballot informational hearing notice at https://www.vlct.org/resource/model-australian-ballot-informational-hearing-notice.   

 

New 12/10! Does the town moderator preside over the informational hearing?

The selectboard, not the moderator, is statutorily responsible for the administration of this hearing, although informally many selectboards will defer to the moderator once such an informational hearing begins. However, in a town that has voted to start its annual meeting on any of the three days immediately preceding the first Tuesday in March, the hearing under this subsection may be held in conjunction with that meeting, in which case the moderator presides. 17 V.S.A. § 2680.

New 2/12! Can we amend articles on the town meeting warning at our informational hearing?

No. Once the town meeting warning is posted it can’t be altered without having to re-warn the town meeting. The purpose of the informational hearing is to inform the voters in preparation of their vote on the articles as they appear on the town meeting warning, not to inform the ballot. This is in contrast to voting on articles from the floor wherein debate can lead to amending the article preceding the vote. If, after the informational hearing, the legislative body deems it necessary to amend the warning, it will have to postpone the date of town meeting in order to comply with the statutory deadline for posting the amended warning. Alternatively, the legislative body may request that the Secretary of State waive the town meeting warning deadline if the town switched to using Australian ballot for this year under Act 162.

New 2/12! Do we have to keep and post minutes for the informational hearing?

Yes. As previously stated, the informational hearing is technically a meeting of the legislative body so it must comply with all the requirements of VT’s Open Meeting Law (warning, agenda, open to the public, public comment, minutes). However, because the law governing how the informational hearing is noticed is more specific than the general law governing the noticing of meetings of public bodies, those notice requirements will control. Please see our Open Meeting Law FAQs for more information: https://www.vlct.org/open-meeting-law-faqs.

New 2/12! Can candidates for local elected office introduce themselves, debate each another, and promote their candidacy during the informational hearing?

Yes. Though that’s not the stated purpose behind the informational hearing, such activities aren’t prohibited. State law only expressly prohibits campaigning in the polling place. 17 V.S.A.§ 2411. Since the informational hearing is hosted by the legislative body, it is technically a meeting of the legislative body. This means that the selectboard can add whatever items it likes to its own agenda so long as it also gives time to discuss every budget and public article appearing on the warning; in that instance, we would recommend addressing those articles first. Depending on the number of articles to be discussed and the amount of public comment they engender, a separate candidates forum may serve as a more appropriate venue for these purposes. This too could be hosted by the legislative body by warning a special legislative body meeting with an agenda dedicated to providing equal time to the candidates.

Updated 1/22! Do candidates for local election still need to petition to get their names on the ballot?

No. Act 162 eliminates the requirement for candidates to collect voter signatures in order to get their name on the ballot for a local election held at a 2021 town meeting. However, Act 162 did not waive the consent form requirement. Therefore, any candidate wishing to add their name to a ballot must complete the consent form and submit it to the town clerk.Please see the Secretary of State's directive issued on January 20, 2021 pursuant to Act 1 (H.48) for new guidance on consent forms at: https://sos.vermont.gov/elections/about/covid-19-response/. Contact the Elections Division directly with your questions.

Updated 1/22!! When do consent forms need to be filed?

Candidates will need to submit their consent forms to town clerks “not later than 5:00 p.m. on the sixth Monday preceding the day of the election” 17 V.S.A. § 2681(a)(1)(A). Consent forms may be withdrawn by notifying the Town Clerk in writing not later than 5:00 p.m. on the Wednesday after the filing deadline. 17 V.S.A. § 2681(d). Please consult VLCT’s online Municipal Calendar 2020-2021 or relevant deadlines.The Secretary of State issued a directive on January 20, 2021, that contains several provisions related to consent forms. One reads as follows: "12. A municipality may waive the deadline to file nominating paperwork for local offices contained in 17 V.S.A. § 2681 and allow those consent forms to be filled until a date determined by the municipality that will facilitate the ballots being prepared no later than 20 days before the election as required by 17 V.S.A. §2681a." To review the directive, please visit https://sos.vermont.gov/elections/about/covid-19-response/ and contact the Elections Division directly with questions.

Do voter-backed petitions still require signatures?

Yes, but selectboards can choose to waive the petition requirement. A selectboard is required to honor (i.e. place the requested article on the town meeting warning) a voter-backed petition when: 1. the subject of the petition is a matter over which the voters have been given specific authority in statute; 2. the petition is received by the town clerk 47 days or more before the date of the annual meeting; and 3. the petition meets the other requirements of 17 V.S.A. § 2642(a)(3), including that it contains the signatures of at least five percent of the registered voters of the town. This law has not been changed but, because the selectboard controls the town meeting warning, it can decide to waive the petition requirements. In recognition of the public health hazard posed by people gathering signatures amid a global pandemic, selectboards may opt to lower the bar to entry on the town meeting warning by at least excusing the need for a petition with signatures. This is already commonly done with requests for social service appropriations. In recognition of this practice, our Model Social Service Appropriation Policy excuses those social service agencies that have had an appropriation request approved at the most recent annual town meeting from submitting a petition for an article appropriating funding to their group if the amount requested is the same or less than the amount approved by the voters in the previous year. Selectboards seeking to lower this threshold should adopt a policy to ensure that its decision-making process is fair, impartial, and uniformly applied.

Can voters use electronic signatures on their petitions?

Only if the selectboard approves of the practice. The Legislature has yet to change any of the laws governing petitioned articles whether they be for the support of social service agencies or for placing articles on the town meeting warning. Therefore, he decision as to whether to honor electronic signatures or to even require any signatures at all at this time resides with the selectboard. Generally, whether electronic signatures can be used in the State of Vermont depends on the circumstances. Under the VT Uniform Electronic Transactions Act, if a law requires a signature, an electronic signature will suffice. An “electronic signature” is defined under the law as “an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.” 9 V.S.A. § 276(d). The full law may be accessed here: http://legislature.vermont.gov/statutes/chapter/09/020. This law, however, was written with the intention of applying to “transactions” as defined under the law, not local elections and a selectboard would not be compelled to accept such signatures if submitted. Nevertheless, we recognize the benefit of having petitioners avoid the public health hazards associated with obtaining signatures during a time of pandemic by honoring electronic signatures. One possible option would be for the selectboard to adopt a resolution stating that, in recognition of the dangers wrought by COVID-19, it will honor electronic signatures on voter-backed petitions for all purposes for the duration of the declared state of emergency under the circumstances it establishes (i.e. in compliance with the VT Uniform Electronic Transactions Act). The potential benefit of such an approach would be that even if the validity of a petition was challenged on the basis that the law does not recognize the use of electronic signatures for such a purpose, the placement of the article on the warning would still stand as it would have been initiated of the selectboard’s own accord.

New 1/26! How did retail cannabis change with Act 164?

Vermont legalized the retail sale of cannabis with Act 164, which became law on October 7, 2020. The law does not permit retail shops to sell cannabis to the general public until April 1, 2022, but municipalities can vote starting January 1, 2021 on whether to allow retail cannabis operations in their communities. In other words, retail cannabis shops are not permitted in a municipality unless the municipality votes to allow them.

New 1/26! How can a town vote to allow the operation of retail cannabis establishments?

A town may vote at an annual or special town meeting to allow “cannabis retailers,” “integrated licensees,” or both to operate within the town. The vote to permit the retail sale of cannabis must be by Australian ballot and will pass if a majority of the voters present vote in the affirmative.

If the town wants to authorize all legal methods of retail sale of cannabis to the public, it should vote on the following:

  • Shall the town authorize cannabis retailers and integrated licensees in town pursuant to 7 V.S.A. § 863?

OR If the town only wants to authorize “cannabis retailers” or “integrated licensees” or vote on them separately for any reason, it should use one or both of the following:

  • Shall the town authorize cannabis retailers in town pursuant to 7 V.S.A. § 863?
  • Shall the town authorize integrated licensees in town pursuant to 7 V.S.A. § 863?

“Cannabis retailer” means a person licensed by the state Board to sell cannabis and cannabis products to adults 21 years of age and older for off-site consumption. “Integrated licensee” means a person licensed by the state Cannabis Control Board to engage in the activities of a cultivator, wholesaler, product manufacturer, retailer, and testing laboratory in accordance with state law.

New 1/26! Can we vote to prohibit retail cannabis after initially voting to opt-in?

Yes. If a town opts-in to allowing retail sale of cannabis and later changes its mind, it can vote to rescind retail operations. However, those retail shops already in existence after the initial vote to opt-in will be grandfathered in and not affected by a later rescission vote.

Updated 2/2! What if no one submits a consent form to run in local office for an Australian ballot vote?

The ballot must have as many blank write-in lines as there are persons to be elected to that office following the names of the candidates. 17 V.S.A. § 2472(c). This creates the possibility of a write-in candidate being elected. To prevail, a write-in candidate must receive both the greatest number of voters and 30 votes or the votes of one percent of the town whichever is less. If no write-in candidate is elected by Australian ballot, 17 V.S.A. § 2682(d) will usually control. This law provides that a selectboard may appoint a town voter to fill the office until the next annual meeting so long as two conditions are met: (1) no person filed a petition to become a candidate for the office; and (2) no person was “otherwise” elected to the office through write-in. Unlike appointments made to fill a vacancy, where service continues until an election is had (24 V.S.A. § 963), an individual appointed under this law will serve until the next annual meeting. 17 V.S.A. § 2682(d).

New 12/9! What happens if there is a tie in an election for local office?

In the event of a tie, the selectboard, within seven days, must warn a runoff election to be held between 15 and 22 days after the warning. The runoff election will be limited to those candidates who were tied in the original election. However, if one of the candidates that are tied withdraws their candidacy within five days after the election, the town clerk must certify the other tied candidate as the winner, and there will be no runoff election. 17 V.S.A. § 2682b.

New 1/26! What happens if someone is elected to office by Australian ballot but later declines or refuses to serve?

If someone is elected by Australian ballot but refuses to serve (see 17 V.S.A. § 2654), the provisions of 17 V.S.A. § 2646 will control. This means the incumbent will continue to serve until 1) they resign, or 2) a successor is chosen. If the incumbent resigns, the law on vacancies will apply (see 24 V.S.A. §§ 961-963) and the selectboard must appoint someone to fill the vacancy until the next election is held. If not, a successor can be chosen at a special town meeting called by the selectboard or upon receipt of a valid voter-backed petition, but in any event no later than the next annual town meeting.