Chapter 1. Vermont Statutes Annotated

Subchapter 1. Statutory Revision Commission; Continuous Revision

History

Revision note—

Deleted reference regarding transfer of acts and resolves in subsec. (b) for conformity with text of 2001, Act No. 30.

Transition of duties from Statutory Revision Commission to Legislative Council. 2001, No. 30 , § 2, provided:

“(a) The Statutory Revision Commission shall perform the duties assigned in chapter 1 of Title 1 for the 2001 biennial session of the General Assembly. The Legislative Council shall be responsible for all certification, publication and revision duties related to the Vermont Statutes Annotated, beginning with the 2002 adjourned session of the General Assembly.

“(b) The duties and obligations of the contracting state government entity, for any outstanding contracts with a legal publisher, for the publication of the Vermont Statutes Annotated, shall be transferred to the Legislative Council on December 1, 2001.”

§§ 1-9. Repealed. 2001, No. 30, § 3.

History

Former §§ 1-9. Former § 1, relating to the Statutory Revision Commission, was derived from 1957, No. 91 , § 1 and amended by 1967, No. 257 (Adj. Sess.), § 1 and 1979, No. 181 (Adj. Sess.), § 1.

Former § 2, relating to contracts for preparation of Vermont Statutes Annotated and topical revisions, was derived from 1957, No. 91 , § 1 and amended by 1957, No. 234 , § 2 and 1973, No. 239 (Adj. Sess.), § 1.

Former § 3, relating to cumulative pocket part supplements, was derived from 1957, No. 91 , § 3 and amended by 1961, No. 108 , eff. May 5, 1961 and 1993, No. 210 (Adj. Sess.), § 98a.

Former § 3a, relating to multiyear contracts, was derived from 1993, No. 210 (Adj. Sess.), § 98b.

Former § 4, relating to acceptance of statutes as evidence of law, was derived from 1957, No. 91 , § 4.

Former § 5, relating to continuous revision of statutes, was derived from 1957, No. 91 , § 5.

Former § 6, relating to procedure of Commission and reports to General Assembly, was derived from 1957, No. 91 , § 6.

Former § 7, relating to proposals for changes in existing statutes, was derived from 1957, No. 91 , § 7.

Former § 8, relating to compensation and assistance to members of Commission, was derived from 1957, No. 91 , § 8.

Former § 9, relating to vacancies on Commission, was derived from 1957, No. 91 , § 9.

Annotations From Former § 4

Authentication of regulations.

Issue of authentication of regulation that deer must be immediately tagged upon taking was not considered on appeal where defendant never properly put in issue whether the regulation was authentic, properly promulgated, or within the power of the fish and wildlife board to promulgate. State v. Sullivan, 154 Vt. 437, 578 A.2d 639, 1990 Vt. LEXIS 97 (1990).

Cited.

Cited in Equal Employment Opportunity Commission v. Vermont Office of Court Administrator, 717 F. Supp. 261, 1989 U.S. Dist. LEXIS 8386 (D. Vt. 1989).

Subchapter 2. Enactment of Vermont Statutes Annotated

§ 51. Vermont Statutes Annotated defined.

Vermont Statutes Annotated, Revision of 1959, as published by the Commission to revise the statutory law of Vermont under No. 91 of the Acts of 1957, 1 V.S.A. §§ 1-9 , are hereby enacted as positive statute law, exclusive of the prefatory subject matter, analyses, catchlines, notes, annotations, appendixes, tables and indexes contained therein. They may be cited as —— V.S.A. § —— and they shall not, in any citation of the statutes, be considered as acts of the present year.

HISTORY: Added 1959, No. 262 , § 1, eff. June 11, 1959.

History

References in text.

The reference to 1 V.S.A. §§ 1-9 was repealed by 2001, No. 30 , § 3, eff. Dec. 1, 2001. See now 2 V.S.A. §§ 421-426 .

CROSS REFERENCES

Distribution of Vermont Statutes Annotated and supplements thereto, see 29 V.S.A. § 1158 .

§ 52. Vermont Statutes Annotated; time of taking effect.

Vermont Statutes Annotated shall take effect from and after July 1, 1959 except the parts thereof as to which a different provision is expressly made therein.

HISTORY: Added 1959, No. 262 , § 2, eff. June 11, 1959.

CROSS REFERENCES

Effective date of laws enacted after 1959, see § 212 of this title.

§§ 53, 54. Repealed. 2013, No. 34, § 31.

History

Former §§ 53 and 54. Former § 53, relating to judicial actions that were commenced prior to 1959, was derived from 1959, No. 262 , § 3.

Former § 54, relating to penalties, forfeitures, and taxes incurred prior to 1959, was derived from 1959, No. 262 , § 4.

§ 55. Repeal of Vermont Statutes, Revision of 1947, and session laws not to affect associations and corporations.

The repeal of the Vermont Statutes, Revision of 1947, and acts of the General Assembly shall not affect associations or private corporations organized thereunder, but they may have and exercise the powers conferred thereby.

HISTORY: Added 1959, No. 262 , § 5, eff. June 11, 1959.

CROSS REFERENCES

Effect of repeal of provision of Vermont Statutes Annotated, see § 214 of this title.

§ 56. Limitations, how affected.

When a limitation or period of time prescribed in an act repealed, for acquiring a right, or barring a remedy, or for any other purpose, has begun to run and the same or a similar limitation is prescribed in the Vermont Statutes Annotated, the time of limitation shall continue to run, and shall have like effect as if the whole period had begun and ended under the operation of the Vermont Statutes Annotated.

HISTORY: Added 1959, No. 262 , § 6, eff. June 11, 1959.

§ 57. Vermont Statutes Annotated, continuation of existing laws.

The provisions of the Vermont Statutes Annotated, so far as they are the same as those of existing laws, shall be construed as a continuation of those laws, and not as new enactments.

HISTORY: Added 1959, No. 262 , § 7, eff. June 11, 1959.

§ 58. Repealed. 2013, No. 34, § 31.

History

Former § 58. Former § 58, relating to the precedence of 1959 acts over conflicting language in the first volumes of the Vermont Statutes Annotated, was derived from 1959, No. 262 , § 8.

§ 59. Certified copy of Vermont Statutes Annotated.

A copy of the Vermont Statutes Annotated shall be kept in the office of the Secretary of State, to which copy that officer shall affix a certificate, under his or her hand and the Seal of the State, that the laws therein contained are the statute laws of the State of Vermont; and that certified copy shall be an authentic record of those laws.

HISTORY: Added 1959, No. 262 , § 9, eff. June 11, 1959.

§ 60. Repealed. 2001, No. 30, § 3, eff. December 1, 2001.

History

Former § 60. Former § 60, relating to supplements and continuous statutory revision, was derived from 1959, No. 262 , § 10, eff. June 11, 1959; and amended by 1967, No. 257 (Adj. Sess.), § 2, eff. Feb. 21, 1968.

Repeal. 2001, No. 30 , § 3, eff. December 1, 2001 provides: “Chapter 1, subchapter 1 of 1 V.S.A. (entitled Statutory Revision Commission; Continuous Revision) and 1 V.S.A. § 60 (relating to supplements and continuous statutory revision) are repealed.”

Annotations From Former § 60

Authentication of regulations.

Issue of authentication of regulation that deer must be immediately tagged upon taking was not considered on appeal where defendant never properly put in issue whether the regulation was authentic, properly promulgated, or within the power of the fish and wildlife board to promulgate. State v. Sullivan, 154 Vt. 437, 578 A.2d 639, 1990 Vt. LEXIS 97 (1990).

Chapter 3. Construction of Statutes

History

Legislative purpose and intent. 2013, No. 96 (Adj. Sess.), § 1(a) provides: “For the purpose of reversing demeaning stereotypes, changing negative attitudes, and cultivating a culture of respect toward persons with disabilities, the General Assembly seeks to replace offensive statutory terms with language that recognizes persons as opposed to their disabilities.”

Subchapter 1. Generally

§ 101. Application of chapter.

In the construction of statutes, the rules set out in this chapter shall be observed, unless such construction is inconsistent with the manifest intent of the General Assembly or repugnant to the context of the same statute.

History

Source.

V.S. 1947, § 1. P.L. § 1. G.L. § 1. P.S. § 1. V.S. § 1. R.L. § 1.

Revision note—

Substituted “the rules set out in this chapter” for “the following rules” for purposes of clarity.

ANNOTATIONS

Application.

Since the Vermont Code forbids an application of the default date of the statute concerning the effective date of laws to frustrate plain legislative intent, and since the court is to effectuate that intent, the Legislature’s repeal of the sunset provision of the attorney’s fees provision of the Prompt Pay Act must be read as taking effect before any unintended nullification by default. Accordingly, the attorney’s fees provision continued in effect after June 30, 1996. First Quality Carpets, Inc. v. Kirschbaum, 2012 VT 41, 192 Vt. 28, 54 A.3d 465, 2012 Vt. LEXIS 35 (2012).

Cited.

Cited in State v. Vermont Emergency Board, 136 Vt. 506, 394 A.2d 1360, 1978 Vt. LEXIS 650 (1978); In re Lionni, 160 Vt. 625, 628 A.2d 945, 648 A.2d 832, 1993 Vt. LEXIS 161 (1993); Massachusetts Municipal Wholesale Electric Co. v. State, 161 Vt. 346, 639 A.2d 995, 1994 Vt. LEXIS 5 (1994); Ascension Tech. Corp. v. McDonald Invs., Inc., 327 F. Supp. 2d 271, 2003 U.S. Dist. LEXIS 25876 (D. Vt. 2003) (mem.).

Subchapter 2. Definition of Terms

§ 111. Annual meeting.

“Annual meeting” when applied to towns shall mean the annual town meeting in March or an adjournment thereof.

History

Source.

V.S. 1947, § 2. P.L. § 2. G.L. § 6. P.S. § 6. V.S. § 4. R.L. § 4. G.S. 4, § 3. R.S. 4, § 3.

§ 112. Biennial; biennially.

“Biennial” or “biennially” shall mean the year in which a regular session of the General Assembly is held.

History

Source.

V.S. 1947, § 4. P.L. § 4. G.L. § 18. P.S. § 17. R. 1906, § 16a.

§ 113. County; town.

“County” or “town” may mean the county or town in which the subject matter referred to is situate, belongs or is cognizable.

History

Source.

V.S. 1947, § 5. P.L. § 5. G.L. § 33. P.S. § 31. V.S. § 25. R.L. § 25.

§ 114. Domestic and foreign corporations.

“Domestic” when applied to a corporation, company, association, or copartnership shall mean organized under the laws of this State; “foreign,” when so applied, shall mean organized under the laws of another state, government, or country.

History

Source.

V.S. 1947, § 7. P.L. § 7. G.L. § 29. P.S. § 27. R. 1906, § 25. V.S. § 4164.

ANNOTATIONS

Classification of corporations.

Classification of corporation as domestic or foreign depends on whether it was organized under laws of this state or of another state. Kittredge v. The Fairbanks Company, 91 Vt. 174, 99 A. 1016, 1917 Vt. LEXIS 227 (1917).

§ 115. Fees.

“Fees” shall mean earnings due for official services, aside from salaries or per diem compensation.

History

Source.

V.S. 1947, § 9. P.L. § 9. 1933, No. 157 , § 8757.

ANNOTATIONS

Cited.

Cited in Welch v. Seery, 138 Vt. 126, 411 A.2d 1351, 1980 Vt. LEXIS 1039 (1980).

§ 116. Folio.

“Folio” shall mean 100 words.

History

Source.

V.S. 1947, § 10. P.L. § 10. G.L. § 7470. P.S. § 6264. V.S. § 5415. R.L. § 4548. G.S. 126, § 51.

§ 117. General election; local election.

“General election” shall mean any election of State and county officers, Representatives to the General Assembly, U.S. Senators, Representative to Congress, or electors. “Local election” shall mean any election of town or village officers in towns or villages having more than 4,000 inhabitants.

History

Source.

V.S. 1947, § 11. P.L. § 11. G.L. § 5. 1917, No. 254 , § 5. 1915, No. 1 , § 1. P.S. § 5. R. 1906, § 5. V.S. § 58. 1894, No. 162 , § 58. 1892, No. 1 , § 32.

ANNOTATIONS

Prior law.

“General election” in the Public Statutes was uniformly used to designate what before had commonly been called “freeman’s meeting.” Martin v. Fullam, 90 Vt. 163, 97 A. 442, 1916 Vt. LEXIS 254 (1916).

§ 118. Grantor; grantee.

“Grantor” may include every person by or from whom an estate or interest in land is passed in or by a deed. “Grantee” may include every person to whom such estate or interest passes.

History

Source.

V.S. 1947, § 12. P.L. § 12. G.L. § 7. V.S. § 5. P.S. § 7. R.L. § 5. G.S. 4, § 4. R.S. 4, § 4.

§ 119. Highway; road.

“Highway” or “road” shall include bridges thereon and their approaches.

History

Source.

V.S. 1947, § 13. P.L. § 13. 1933, No. 157 , § 8761. G.L. § 32. P.S. § 30. V.S. § 24. R.L. § 24.

ANNOTATIONS

Pleading.

Allegation that an injury was received by reason of the insufficiency or want of repair of a highway sufficiently showed a cause of action against a town which was liable for injuries received upon bridges, but not upon highways, since under this section, a bridge could properly be called a highway. Cook v. Town of Barton, 63 Vt. 566, 22 A. 663, 1891 Vt. LEXIS 156 (1891).

Questions for court.

Existence of a public highway is a mixed question of law and fact, and whether essential facts exist is for the trier of fact; whether facts found constitute a highway is for the court. Town of Springfield v. Newton, 115 Vt. 39, 50 A.2d 605, 1947 Vt. LEXIS 74 (1947).

§ 120. Repealed. 2015, No. 97 (Adj. Sess.), § 87(1).

History

Former § 120. Former § 120, defining the phrase insane person, was derived from V.S. 1947, § 14; P.L. § 14; G.L. § 10; P.S. § 9. V.S. § 7; R.L. § 7; G.S. 4, § 6; R.S. 4, § 6 and amended by 2013, No. 96 (Adj. Sess.), § 2.

§ 121. Issue.

“Issue” as applied to the descent of estates shall include the lawful lineal descendants of the ancestor.

History

Source.

V.S. 1947, § 15. P.L. § 15. G.L. § 11. P.S. § 10. V.S. § 8. R.L. § 8. G.S. 4, § 7. R.S. 4, § 7.

ANNOTATIONS

Adopted child.

Adopted daughter of a deceased son did not take as his “issue,” in the absence of words in the will showing that the testator used the word “issue” to include persons other than his own lawful, lineal descendants. In re Smith's Will, 95 Vt. 97, 112 A. 897, 1921 Vt. LEXIS 182 (1921).

Presumptions.

In absence of words in will to contrary, presumption is that testator used word “issue” in its statutory sense as applied to descent of estates, which includes lawful lineal descendants of ancestor. In re Beach's Estate, 103 Vt. 70, 151 A. 654, 1930 Vt. LEXIS 113 (1930).

§ 122. Justice.

“Justice” when applied to a person, other than a Justice of the Supreme Court, shall mean a justice of the peace for the county for which he or she is elected or appointed.

HISTORY: Amended 1965, No. 194 , § 10, operative Feb. 1, 1967; 1973, No. 249 (Adj. Sess.), § 1, eff. April 9, 1974.

History

Source.

V.S. 1947, § 17. P.L. § 17. 1933, No. 157 , § 8765. G.L. § 8. 1917, No. 254 , § 8. 1915, No. 1 , § 2. P.S. § 8. V.S. § 6. R.L. § 6. G.S. 4, § 5. R.S. 4, § 5.

Revision note—

Deleted “; court” from the catchline for conformity with 1973 Adj. Sess. amendment.

Amendments

—1973 (Adj. Sess.). Substituted “person” for “magistrate” preceding “other than” and deleted the second sentence.

—1965. Substituted “district” for “municipal” preceding “court” at the end of the second sentence.

§ 123. Magistrate.

“Magistrate” shall mean any Supreme Court Justice, Superior judge, District judge, or Probate judge.

HISTORY: Amended 1969, No. 207 (Adj. Sess.), § 1, eff. March 24, 1970; 1973, No. 249 (Adj. Sess.), § 2, eff. April 9, 1974.

History

Source.

1957, No. 181 . V.S. 1947, § 20. P.L. § 20. 1933, No. 157 , § 8768. G.L. § 9. 1917, No. 254 , § 9.

Revision note—

Reference to “chancellor” deleted in light of repeal of § 211 of Title 4, establishing a court of chancery and vesting the powers thereof in a chancellor.

Amendments

—1973 (Adj. Sess.). Deleted “a judge of the county court” following “superior judge” and “justice of the peace” following “district judge”.

—1969 (Adj. Sess.). Amended section generally.

§ 124. Month; year.

“Month” shall mean a calendar month and “year” shall mean a calendar year and be equivalent to the expression “year of our Lord.”

History

Source.

V.S. 1947, § 22. P.L. § 22. G.L. § 15. P.S. § 14. V.S. § 12. R.L. § 12. G.S. 4, § 9. R.S. 4, § 9.

§ 125. Repealed. 1967, No. 194, § 22, eff. March 1, 1968.

History

Former § 125. Former § 125, relating to municipal courts, was derived from V.S. 1947, § 23; P.L. § 23; 1933, No. 157 , § 8771.

§ 126. Municipality.

“Municipality” shall include a city, town, town school district, incorporated school or fire district or incorporated village, and all other governmental incorporated units.

History

Source.

V.S. 1947, § 24. 1947, No. 202 , § 24.

ANNOTATIONS

Incorporated village.

24 V.S.A. § 901(a) required that an action that residents filed against an incorporated village and village trustees be brought solely against the village because § 901 applied to officers of all municipal corporations. The village was a municipality under 1 V.S.A.§ 126, and the trustees were municipal officers. Merrill v. Village of N. Troy, 2008 U.S. Dist. LEXIS 103367 (D. Vt. Dec. 19, 2008).

Cited.

Cited in Baird v. Town of Berlin, 126 Vt. 348, 231 A.2d 110, 1967 Vt. LEXIS 196 (1967); Addison County Community Action Group v. City of Vergennes, 152 Vt. 161, 565 A.2d 233 (1989); Holmberg v. Brent, 161 Vt. 153, 636 A.2d 333, 1993 Vt. LEXIS 104 (1993).

§ 127. Oath; sworn.

“Oath” shall include affirmation where by law an affirmation may be substituted. In like cases, “sworn” shall include affirmed.

History

Source.

V.S. 1947, § 27. P.L. § 26. G.L. § 16. P.S. § 15. V.S. § 13. R.L. § 13. G.S. 4, § 10. R.S. 4, § 10.

CROSS REFERENCES

“Sworn” when applied to public officials, see 1 V.S.A. § 137 .

§ 128. Person.

“Person” shall include any natural person, corporation, municipality, the State of Vermont or any department, agency, or subdivision of the State, and any partnership, unincorporated association, or other legal entity.

HISTORY: Amended 1969, No. 207 (Adj. Sess.), § 2, eff. March 24, 1970.

History

Source.

V.S. 1947, § 29. P.L. § 28. G.L. § 27. 1917, No. 2 . P.S. § 26. V.S. § 21. R.L. § 21. G.S. 4, § 11. R.S. 4, § 11.

Amendments

—1969 (Adj. Sess.). Amended section generally.

ANNOTATIONS

Construction with other laws.

Claims by a corporate investor under the Vermont Consumer Fraud Act (VCFA) survived dismissal because the VCFA allowed suits by corporations that had purchased goods or services for the use or benefit of the business as long as the goods or services were not purchased for resale; “consumer” as defined in 9 V.S.A. § 2451a(a) includes corporations by virtue of 1 V.S.A. § 128 . Ascension Tech. Corp. v. McDonald Invs., Inc., 327 F. Supp. 2d 271, 2003 U.S. Dist. LEXIS 25876 (D. Vt. 2003).

Notwithstanding provision of this section that “person” may include a body politic, as used in particular statutes, “person” did not mean a town. Town of Eden v. Town of Danville, 110 Vt. 242, 4 A.2d 341, 1939 Vt. LEXIS 135 (1939).

Cited.

Cited in State v. Rutland Railway, Light & Power Co., 85 Vt. 91, 81 A. 252, 1911 Vt. LEXIS 214 (1911).

§ 129. Personal estate.

“Personal estate” shall include all property other than real estate.

History

Source.

V.S. 1947, § 30. P.L. § 29. G.L. § 13. P.S. § 12. V.S. § 10. R.L. § 10.

§ 130. Population; inhabitants.

“Population” or “inhabitants” shall mean the population of the political division referred to, as ascertained by the national census last completed before the time when such population is a material fact.

History

Source.

V.S. 1947, § 31. P.L. § 30. G.L. § 26. P.S. § 25. R. 1906, § 23.

§ 131. Preceding; following; such; said.

“Preceding” and “following” when used by way of reference to a section of the law shall mean the next preceding or following section. “Such” and “said” when used by way of reference to a person or thing shall apply to the same person or thing last mentioned.

History

Source.

V.S. 1947, § 32. P.L. § 31. G.L. § 19. P.S. § 18. V.S. § 15. R.L. § 15. G.S. 4, § 12. R.S. 4, § 12.

§ 132. Land; lands; real estate.

“Land,” “lands,” and “real estate” shall include lands, tenements, and hereditaments and all rights thereto and interests therein, and pews or slips in places of public worship shall be treated as real estate.

History

Source.

V.S. 1947, § 33. P.L. § 32. G.L. § 12. P.S. § 11. V.S. § 9. R.L. § 9. G.S. 4, § 8. 1853, No. 33 , § 1. R.S. 4, § 8.

Revision note

—2003. Section heading revised to read, “Land; lands, real estate” to more accurately reflect the contents of the section.

ANNOTATIONS

Easement.

An easement is land, under this section, for it is an hereditament. Deavitt v. Washington County, 75 Vt. 156, 53 A. 563, 1903 Vt. LEXIS 107 (1903).

Interest of mortgagee.

A mortgagee’s interest in real estate is an interest within the purview of this section. In re Vermont Fiberglass, Inc., 44 B.R. 505, 1984 Bankr. LEXIS 4568 (Bankr. D. Vt. 1984).

Temporary building.

A building erected upon the land of another under arrangement with owner of the land that it should be removed when required, was real estate. Stafford v. Adair, 57 Vt. 63, 1885 Vt. LEXIS 49 (1885); Blanchard v. Bowers, 67 Vt. 403, 31 A. 848, 1895 Vt. LEXIS 64 (1895).

Cited.

Cited in In re Tavern Motor Inn, Inc., 71 B.R. 599, 1987 Bankr. LEXIS 415 (Bankr. D. Vt. 1987); In re Christie, 139 B.R. 612, 1992 Bankr. LEXIS 615 (Bankr. D. Vt. 1992).

§ 133. Seal—Official.

When a seal of a court, public officer, or corporation is required to be affixed to a paper, “seal” shall include an impression of the official seal made upon paper alone or by means of a wafer or wax affixed thereto.

History

Source.

V.S. 1947, § 35. P.L. § 34. G.L. § 21. P.S. § 20. V.S. § 17. R.L. § 17. G.S. 4, § 13. R.S. 4, § 13.

§ 134. Private.

When the private seal of a person or corporation is required on an instrument or writing to make such instrument or writing legal and valid, such seal shall consist of an impression as provided in section 133 of this title or of a wafer, wax, or other adhesive substance affixed thereto or of a paper or other similar substance affixed thereto or the word “seal” or the letters “L.S.” opposite the signature.

History

Source.

V.S. 1947, § 36. P.L. § 35. G.L. § 22. 1917, No. 1 . P.S. § 21. 1906, No. 76 .

ANNOTATIONS

Application.

This section does not apply to a note not required to be under seal. Coral Gables, Inc. v. Christopher, 108 Vt. 414, 189 A. 147, 1937 Vt. LEXIS 139 (1937).

Common law.

This section is in derogation of the common law, which requires that a seal be of wax or a wafer or something which would take an impression; the word “seal” after a signature is insufficient. Coral Gables, Inc. v. Christopher, 108 Vt. 414, 189 A. 147, 1937 Vt. LEXIS 139 (1937).

Lack of seal.

An instrument for which the law requires a “seal” to be affixed may be treated in equity according to intention of the parties, though it has no seal. Vermont Accident Insurance Co. v. Fletcher, 87 Vt. 394, 89 A. 480, 1914 Vt. LEXIS 245 (1914).

§ 134a. Registered mail.

“Registered mail,” as the words appear in Vermont Statutes Annotated, the Vermont Rules of Civil Procedure and the Vermont Rules of Criminal Procedure, when used solely for the purpose of securing evidence of delivery, shall include any method of mail delivery requiring the signature of the addressee or his or her agent.

HISTORY: Added 1979, No. 154 (Adj. Sess.), § 1, eff. Apr. 24, 1980.

ANNOTATIONS

Cited.

Cited in Headley v. Department of Employment Security, 139 Vt. 246, 427 A.2d 805, 1981 Vt. LEXIS 439 (1981).

§ 135. School officers.

“School officers” shall include all persons, other than teachers, who have to do with matters pertaining to public schools. The board of school directors of a town school district or the governing board of an incorporated school district shall constitute the legislative branch of such district.

History

Source.

V.S. 1947, § 37. P.L. § 36. 1933, No. 157 , § 8784. 1925, No. 62 , § 1. G.L. § 4. 1917, No. 254 , § 4. 1912, No. 42 , § 30. P.S. § 4. R. 1906, § 4.

ANNOTATIONS

Cited.

Cited in Baird v. Town of Berlin, 126 Vt. 348, 231 A.2d 110, 1967 Vt. LEXIS 196 (1967).

§ 136. State.

“State” when applied to the different parts of the United States may apply to the District of Columbia and any territory and the Commonwealth of Puerto Rico.

HISTORY: Amended 1959, No. 262 , § 11, eff. June 11, 1959.

History

Source.

V.S. 1947, § 38. P.L. § 37. G.L. § 23. P.S. § 22. V.S. § 18. R.L. § 18. G.S. 4, § 14. R.S. 4, § 14.

Amendments

—1959. Added “and the Commonwealth of Puerto Rico” following “territory”.

§ 137. Sworn.

“Sworn” when applied to public officers required by the constitution to take certain oaths shall refer to those oaths; when applied to other officers, it shall mean sworn to the faithful discharge of the duties of their offices before a person authorized to administer oaths.

History

Source.

V.S. 1947, § 39. P.L. § 38. G.L. § 17. P.S. § 16. V.S. § 14. R.L. § 14.

CROSS REFERENCES

When “sworn” includes affirmed, see 1 V.S.A. § 127 .

ANNOTATIONS

Cited.

Cited in Wilson v. Wheeler, 55 Vt. 446, 1882 Vt. LEXIS 66 (1882); Brock v. Bruce, 58 Vt. 261, 2 A. 598, 1885 Vt. LEXIS 22 (1885).

§ 138. Time, how computed.

When time is to be reckoned from a day, date, or an act done, such day, date, or day when such act is done shall not be included in the computation, unless otherwise provided.

History

Source.

V.S. 1947, § 40. P.L. § 39. 1933, No. 157 , § 8787. G.L. § 34. P.S. § 32. V.S. § 26. R.L. § 26.

CROSS REFERENCES

Use of standard time and daylight saving time in laws and contracts, see § 432 of this title.

ANNOTATIONS

Day of request.

In computing the ten days within which constable must deliver bond under section 832 of Title 24, the day when he was requested to furnish it is excluded by this section. State v. Buchanan, 65 Vt. 445, 27 A. 166, 1893 Vt. LEXIS 75 (1893).

Promissory note.

Day upon which a payment is made upon a promissory note is excluded in determining whether statute of limitations is a bar. Hicks' Est. v. Blanchard, 60 Vt. 673, 15 A. 401, 1888 Vt. LEXIS 200 (1888).

Redemption period.

Where automobile purchaser was not advised by finance company of its custom to include the day of repossession as the first day in the time during which it could be redeemed, under this section, the day of repossession was not properly included in the redemption period. Allard v. Ford Motor Credit Co., 139 Vt. 162, 422 A.2d 940, 1980 Vt. LEXIS 1483 (1980).

§ 139. Town; town officers.

“Town” shall include city and wards or precincts therein; “selectboard members” and “board of civil authority” shall extend to and include the mayor and aldermen of cities; “trustees” shall extend to and include bailiffs of incorporated villages; and the laws applicable to the inhabitants and officers of towns shall be applicable to the inhabitants and similar officers of all municipal corporations. This section shall be so construed as not to conflict with the acts of incorporation of or laws specially applicable to such municipal corporations.

HISTORY: Amended 2013, No. 161 (Adj. Sess.), § 72.

History

Source.

V.S. 1947, § 42. P.L. § 41. 1933, No. 157 , § 8789. G.L. § 24. P.S. § 23. R. 1906, § 21. 1904, No. 1 , § 1. V.S. § 19. R.L. § 19.

Revision note

—2013 (Adj. Sess.). Substituted “selectboard members” for “selectmen” in accordance with 2013, No. 161 (Adj. Sess.), § 72.

ANNOTATIONS

Village trustees.

24 V.S.A. § 901(a) required that an action that residents filed against an incorporated village and village trustees be brought solely against the village because § 901 applied to officers of all municipal corporations. The village was a municipality under 1 V.S.A.§ 126, and the trustees were municipal officers. Merrill v. Village of N. Troy, 2008 U.S. Dist. LEXIS 103367 (D. Vt. Dec. 19, 2008).

Cited.

Cited in McFarland v. Gordon, 70 Vt. 455, 41 A. 507, 1898 Vt. LEXIS 62 (1898); Addison County Community Action Group v. City of Vergennes, 152 Vt. 161, 565 A.2d 233 (1989); Holmberg v. Brent, 161 Vt. 153, 636 A.2d 333, 1993 Vt. LEXIS 104 (1993).

§ 140. Village.

“Village” shall mean an incorporated village.

History

Source.

V.S. 1947, § 43. P.L. § 42. 1933, No. 157 , § 8790.

ANNOTATIONS

Cited.

Cited in Holmberg v. Brent, 161 Vt. 153, 636 A.2d 333, 1993 Vt. LEXIS 104 (1993).

§ 141. Will.

“Will” shall include codicils.

History

Source.

V.S. 1947, § 44. P.L. § 43. G.L. § 14. P.S. § 13. V.S. § 11. R.L. § 11. G.S. 4, § 15. R.S. 4, § 15.

§ 142. Written; in writing.

“Written” or “in writing” may include printing or other mode of representing words and letters, except where the written signature of a person is required.

History

Source.

V.S. 1947, § 45. P.L. § 44. G.L. § 25. P.S. § 24. V.S. § 20. R.L. § 20. G.S. 4, § 16. R.S. 4, § 16.

§ 143. Sexual orientation.

The term “sexual orientation” means female or male homosexuality, heterosexuality, or bisexuality. “Sexual orientation” shall not be construed to protect conduct otherwise proscribed by law.

HISTORY: Added 1991, No. 135 (Adj. Sess.), § 1.

§ 144. Gender identity.

The term “gender identity” means an individual’s actual or perceived gender identity, or gender-related characteristics intrinsically related to an individual’s gender or gender-identity, regardless of the individual’s assigned sex at birth.

HISTORY: Added 2007, No. 41 , § 1.

§ 145. Include, includes, and including.

The terms “include,” “includes,” and “including” mean that the language following the term is illustrative and not exhaustive, and shall have the same meaning as though the term were followed by the words “but not limited to.”

HISTORY: Added 2013, No. 5 , § 1, eff. April 23, 2013.

History

Statutory revision authority. 2013, No. 5 , § 4, provides: “The Legislative Council, in its statutory revision capacity, is authorized to make such amendments to the Vermont Statutes Annotated as are necessary to reflect the provisions of Sec. 1 of this act (adding 1 V.S.A. § 145 ), including amending uniform laws and interstate compacts to the extent allowed under the terms of such laws and compacts. Such changes may also be made when new legislation is proposed or when there is a republication of a volume of the Vermont Statutes Annotated.”

§ 146. Intellectual disability.

“Intellectual disability” or “person with an intellectual disability” shall mean an individual who has significantly subaverage intellectual functioning existing concurrently with deficits in adaptive behavior. “Intellectual disability” replaces what was previously known as “mental retardation.”

HISTORY: Added 2013, No. 96 (Adj. Sess.), § 2b.

§ 147. Psychiatric disability.

“Psychiatric disability” means an impairment of thought, mood, perception, orientation, or memory that limits one or more major life activities but does not include intellectual disability.

HISTORY: Added 2013, No. 96 (Adj. Sess.), § 2c.

§ 148. Developmental disability.

“Developmental disability” or “person with developmental disabilities” shall have the same meaning as in 18 V.S.A. § 9302 .

HISTORY: Added 2013, No. 96 (Adj. Sess.), § 2d.

§ 149. Semiweekly.

Unless a statute provides a more specific definition, “semiweekly” means twice per week.

HISTORY: Added 2015, No. 57 , § 34, eff. June 11, 2015.

Subchapter 3. Rules of Construction

§ 171. Court; officer; board.

When a court, officer, or board is named by official title, such designation shall apply to the court, officer, or board of the county, town, or place within and for which they are qualified to act.

History

Source.

V.S. 1947, § 6. P.L. § 6. G.L. § 30. P.S. § 28. V.S. § 22. R.L. § 22.

§ 172. Joint authority.

When joint authority is given to three or more, the concurrence of a majority of such number shall be sufficient and shall be required in its exercise.

History

Source.

V.S. 1947, § 16. P.L. § 16. G.L. § 3. P.S. § 3. V.S. § 3. R.L. § 3. G.S. 4, § 2. R.S. 4, § 2. R. 1797, p. 293, § 18.

ANNOTATIONS

Generally.

Breault v. Department of Social Welfare, 135 Vt. 41, 369 A.2d 1377 (1977), does not reference the joint authority statute, but relies upon a rule of the Human Services Board. The opinion is inconsistent with the statute, and to the extent it is applicable today, it is overruled. In re Rumsey, 2012 VT 74, 192 Vt. 290, 59 A.3d 730, 2012 Vt. LEXIS 71 (2012).

Action versus inaction.

Decisions made not in compliance with the joint authority statute represent inaction, not action, as long as adding the votes of any members who could have but did not vote and who are not abstaining could produce a complying result, i.e., a majority of the Board. A board has not acted so long as the Appellate Court is, so to speak, waiting on a potentially outcome-affecting vote. In re Rumsey, 2012 VT 74, 192 Vt. 290, 59 A.3d 730, 2012 Vt. LEXIS 71 (2012).

Human Services Board’s tie vote constituted inaction and required remand when six members of the Board voted on petitioner’s appeal because one member did not make it to the meeting where the vote was taken. The seventh member was not disqualified from the case and did not abstain from considering it. In re Rumsey, 2012 VT 74, 192 Vt. 290, 59 A.3d 730, 2012 Vt. LEXIS 71 (2012).

Applicability.

Joint authority statute applies unless the construction is inconsistent with the manifest intent of the Legislature or repugnant to the context of the same statute; the Human Services Board statute states that a quorum of the Board is normally four persons. Since the quorum requirement is a different concept from a requirement that there be a specific number of votes to render a decision, the application of the joint authority statute to the case decisions of the Human Services Board is not inconsistent with the manifest intent of the Legislature or repugnant to the context of the statute. In re Rumsey, 2012 VT 74, 192 Vt. 290, 59 A.3d 730, 2012 Vt. LEXIS 71 (2012).

Concurrence.

“Concurrence” under voting statute meant more than silent acquiescence; it required expressed assent through a vote for the proposition, and thus planning commission’s approval of subdivision amendment was properly reversed since abstention by one commission member could not count as acquiescence with majority of members who voted. In re Reynolds, 170 Vt. 352, 749 A.2d 1133, 2000 Vt. LEXIS 19 (2000).

“Concurrence,” as used in this section, involves physical presence, not merely a state of mind, plus an expressed assent. State v. Vermont Emergency Board, 136 Vt. 506, 394 A.2d 1360, 1978 Vt. LEXIS 650 (1978).

Delegation of authority.

When selectmen agree together concerning a business which they are authorized to transact, and the business is entrusted to one of them, contracts in relation thereto are binding on the town. Guyette v. Town of Bolton, 46 Vt. 228, 1873 Vt. LEXIS 96 (1873).

Independent acts.

Statements by selectmen severally, each acting independently of any of the others, did not affect the town. Goslant v. Town of Calais, 90 Vt. 114, 96 A. 751, 1916 Vt. LEXIS 246 (1916).

Action of only one of three town auditors in auditing accounts of town officers has no official significance, as concurrence of at least a majority of them is required by this section. Town of St. George v. Tilley, 87 Vt. 427, 89 A. 474, 1914 Vt. LEXIS 251 (1914).

A person discharged from insane asylum by the supervisors of the asylum could not be recommitted under a revocation of discharge by a single supervisor, although it was a condition of his original release that he might be. In re Thorpe, 64 Vt. 398, 24 A. 991, 1892 Vt. LEXIS 56 (1892).

Majority action.

There is nothing in the statutory procedures governing the New Motor Vehicle Arbitration Board to suggest that 1 V.S.A. § 172 , which requires that a majority of the members of an administrative board must vote for a result for the vote to be effective, does not apply to it; thus, where a majority of the arbitration board had not voted for a result, the only feasible remedy on appeal was to require a rehearing of the evidence. In re Villeneuve, 167 Vt. 450, 709 A.2d 1067, 1998 Vt. LEXIS 16 (1998).

Planning commission bylaw allowing action by majority of commissioners “present and voting” was invalid, since 24 V.S.A. § 4323(b) did not authorize commission to override rule expressed in this section. In re Lionni, 160 Vt. 625, 628 A.2d 945, 648 A.2d 832, 1993 Vt. LEXIS 161 (1993) (mem.).

Action by board of selectmen must be by a majority of the members. State v. Baldwin, 116 Vt. 112, 70 A.2d 242, 1950 Vt. LEXIS 118 (1950).

At common law, as well as under this section, the certificate of two commissioners, the third having shared in their deliberations but refusing to concur in their decision, is conclusive evidence of the facts therein stated. First National Bank of North Bennington v. Town of Mount Tabor, 52 Vt. 87, 1879 Vt. LEXIS 152 (1879).

As the duty of signing bonds was imposed on selectmen in their official capacity, and as act of a majority of the selectmen would be as valid as act of the whole board, bonds signed by two of town’s three selectmen were duly executed. First National Bank of St. Johnsbury v. Town of Concord, 50 Vt. 257, 1877 Vt. LEXIS 93 (1877).

This section does not change the rule of common law and if, in a matter of public trust, or of power conferred for public purposes, all meet, the act of the majority will bind. Hodges v. Thacher, 23 Vt. 455, 1851 Vt. LEXIS 50 (1851).

Quorum.

This section does not require that a quorum with authority to act be composed of the same persons in proceedings taking place over time. Lewandoski v. Vermont State Colleges, 142 Vt. 446, 457 A.2d 1384, 1983 Vt. LEXIS 417 (1983).

Cited.

Cited in ABC Realty Corp. v. Bissonette, 129 Vt. 227, 274 A.2d 694, 1971 Vt. LEXIS 249 (1971); Noble v. Delaware & Hudson Railway, 139 Vt. 47, 421 A.2d 1301, 1980 Vt. LEXIS 1393 (1980); In re 66 North Main Street, 145 Vt. 1, 481 A.2d 1053, 1984 Vt. LEXIS 527 (1984); State v. Mills, 167 Vt. 365, 706 A.2d 953, 1998 Vt. LEXIS 1 (1998); In re Newton Enterprises, 167 Vt. 459, 708 A.2d 914, 1998 Vt. LEXIS 11 (1998).

§ 173. Minors.

Persons of the age of 18 years shall be considered of age and until they attain that age, shall be minors. Whenever referred to in the laws of this State, a person who is an adult or who has attained majority shall be a resident or nonresident person of 18 years of age or more.

HISTORY: Amended 1971, No. 90 , § 1; 1971, No. 184 (Adj. Sess.), § 1, eff. March 29, 1972.

History

Source.

V.S. 1947, § 21. 1947, No. 202 , § 21. P.L. § 21. 1929, No. 1 , §§ 1, 2. G.L. § 28. P.S. § 3143. V.S. § 2736. R.L. § 2421. G.S. 72, § 1. R.S. 65, § 1.

Amendments

—1971 (Adj. Sess.). Substituted “attained” for “reached” preceding “majority” and inserted “resident or nonresident” preceding “person”.

—1971. Substituted “eighteen” for “twenty-one” preceding “years” in the first sentence and rewrote the second sentence.

General amendment. 1971, No. 184 (Adj. Sess.), § 29, eff. March 29, 1972, provided: “The statutory revision commission shall delete any other reference to ‘twenty-one years of age’ or any similar phrase wherever it may appear in the Vermont statutes annotated in a context prescribing age of majority and insert in lieu thereof the words ‘age of majority’ or other language as may be required by the context to effect the same purpose”.

Instruments executed prior to effective date of 1971 amendment. 1971, No. 90 , § 21, provided: “Notwithstanding any other provision of this act [which reduced the age of majority from twenty-one to eighteen], for purposes of any provision contained in a will, trust agreement, deed, contract or other similar instrument, executed prior to the effective date of this act [July 1, 1971], which includes the word ‘minor’, ‘infant’, ‘adult’, or ‘majority’, or otherwise refers to the state of minority or the attainment of majority, the age of attainment of majority shall be deemed to be 21 years”.

ANNOTATIONS

Construction.

This section, fixing the age of majority, does not vest any rights. Forte v. Forte, 143 Vt. 518, 468 A.2d 561, 1983 Vt. LEXIS 561 (1983).

No final vesting of rights in minor children occurred at time of their parents’ original 1959 divorce order, and no rights were divested by virtue of subsequent divorce order in 1973, so the fact that in 1959 the age of majority was 21 years, but that in 1973 it was 18 years, did not fix duty of support at some specific degree or amount. Beaudry v. Beaudry, 132 Vt. 53, 312 A.2d 922, 1973 Vt. LEXIS 256 (1973).

Law governing.

Where parties to divorce agreed father was to pay support for the children to the age of 21 or until they should sooner become self-supporting, subsequent lowering of the age of majority to 18 did not affect obligation incurred by the father under the agreement, for act changing age of majority provided that the age was deemed to be 21 for purposes of any provision of an existing will, trust, agreement, deed, contract or similar instrument, and the agreement of the parties was, in effect, a contract. Burke v. Burke, 134 Vt. 400, 360 A.2d 574, 1976 Vt. LEXIS 688 (1976).

Minority is a status defined by, and subject to change by, legislative enactment, and status of children is determined by this section. Beaudry v. Beaudry, 132 Vt. 53, 312 A.2d 922, 1973 Vt. LEXIS 256 (1973).

Prior law.

Prior to amendment by Act of 1929, No. 1 , a girl attains her majority upon reaching age of 18 years. Rafus v. Daley, 103 Vt. 426, 154 A. 695, 1931 Vt. LEXIS 187 (1931).

Cited.

Cited in Peisch v. Peisch, 132 Vt. 514, 321 A.2d 67, 1974 Vt. LEXIS 380 (1974); Schuppin v. Unification Church, 435 F. Supp. 603, 1977 U.S. Dist. LEXIS 15142 (D. Vt. 1977), Arnold v. Arnold, 141 Vt. 118, 444 A.2d 890, 1982 Vt. LEXIS 485 (1982).

Notes to Opinions

Conflicting regulations.

An administrative regulation which, contrary to this section, attempts to restrict a right to those 21 or over has no force and effect, is null and void, and requires no legislative or administrative action to render its nullity operative. 1970-72 Vt. Op. Att'y Gen. 383.

Guardianship.

Guardian has jurisdiction over ward until ward reaches age of majority. 1930-32 Vt. Op. Att'y Gen. 315.

Prior law.

A girl born prior to March 1, 1911, became of full age when she attained the age of 18 years; a girl born on March 1, 1911, or thereafter would reach her majority at the age of 21. 1938-40 Vt. Op. Att'y Gen. 327.

§ 174. Notice by publication.

When a notice is required to be given by publication in a newspaper, it shall mean a newspaper published in the county where the subject matter is situated, pending or to be heard, or a newspaper published within the State which has a general circulation. In any case, in its discretion, the court may cause such notice to be further published in a newspaper which circulates in the neighborhood of the persons interested. Whenever a notice of any kind is required to be given by publication in a newspaper prior to a certain date for a certain number of weeks successively, it may be given by an insertion prior to such date once a week, for the number of successive weeks required, either in a daily, semiweekly, or weekly newspaper. If such publication is in a daily or semiweekly newspaper, such notice shall be inserted on the same day of each successive week.

History

Source.

V.S. 1947, § 25. P.L. § 24. G.L. § 31. 1912, No. 1 . P.S. § 29. 1902, No. 1 , § 1. V.S. § 23. R.L. § 23.

Notes to Opinions

Newspaper.

There is no requirement that a publication have paid subscribers to qualify as a newspaper within the meaning of this section. 1960-62 Vt. Op. Att'y Gen. 113.

A publication circulated county wide by mail, free of charge, consisting of one news column of limited coverage and 48 pages of advertising is not a newspaper within the meaning of this section. 1960-62 Vt. Op. Att'y Gen. 113.

§ 175. Number; gender.

Words importing the singular number may extend and be applied to more than one person or thing; words importing the plural number may be applied as if singular and words importing the masculine may extend and be applied to persons of the feminine gender.

History

Source.

V.S. 1947, § 26. P.L. § 25. G.L. § 2. P.S. § 2. V.S. § 2. R.L. § 2. G.S. 4, § 1. R.S. 4, § 1.

ANNOTATIONS

Exceptions.

Words used in the singular may be read as to include the plural, and the plural the singular, except where a contrary intention plainly appears. E. R. Wiggins Builders Supplies, Inc. v. Smith, 121 Vt. 143, 149 A.2d 360, 1959 Vt. LEXIS 100 (1959); In re N.H., 135 Vt. 230, 373 A.2d 851, 1977 Vt. LEXIS 593 (1977).

Provision of this section that the plural may be applied as singular does not apply to section 3348 of Title 20, requiring the owner or keeper of a ram to place the initials of his name on its body, since one initial of the name of the owner or keeper would not serve the purpose of that enactment, which is to furnish means of identifying the owner or keeper of a ram going at large and with sheep other than those of its owner or keeper. Severance v. Elliott, 75 Vt. 421, 56 A. 85, 1903 Vt. LEXIS 152 (1903).

Cited.

Cited in Wheeler v. Wilson, 57 Vt. 157, 1884 Vt. LEXIS 13 (1884); Bellows Falls Trust Co. v. Gibbs, 148 Vt. 633, 534 A.2d 210, 1987 Vt. LEXIS 518 (1987) (mem.).

§ 176. Title; chapter; section.

The words “title,” “chapter,” and “section” when used by way of reference shall mean a title, chapter, or section of Vermont Statutes Annotated.

History

Source.

V.S. 1947, § 41. P.L. § 40. G.L. § 20. P.S. § 19. V.S. § 16. R.L. § 16.

Revision note—

Substituted “Vermont Statutes Annotated” for “this volume of statutes” for purposes of clarification.

§ 177. Domicile.

Marital status shall not be the sole or determinative factor of a person’s domicile.

HISTORY: Added 1979, No. 139 (Adj. Sess.), § 1, eff. Apr. 23, 1980.

Subchapter 4. Effect of Statutes

§ 211. Official acts and resolutions.

The acts and resolutions printed or reproduced under 29 V.S.A. § 1115 shall be taken to be the laws and resolutions of the session of the General Assembly at which they were passed, unless the original act and legislative records show otherwise, in which case the original act and legislative records pertaining thereto shall control.

HISTORY: Amended 1969, No. 90 , § 1.

History

Source.

V.S. 1947, § 8. 1935, No. 1 . P.L. § 8. 1933, No. 157 , § 8756. G.L. § 39. 1917, No. 13 , § 4. P.S. § 37. V.S. § 31. R.L. § 30. 1872, No. 74 , § 3.

Amendments

—1969. Rewrote the catchline, substituted “printed or reproduced under section 1115 of Title 29” for “typewritten or printed in pursuance of law under the direction of the secretary of state and kept in his office” preceding “shall be” and “records” for “record” preceding “pertaining”.

ANNOTATIONS

Cited.

Cited in Town of Sheldon v. Sheldon Poor House Association, 100 Vt. 122, 135 A. 492, 1927 Vt. LEXIS 126 (1927).

§ 212. Effective date of laws.

Laws enacted by the General Assembly shall take effect on July 1 next following the date of their passage, unless it is otherwise specifically provided.

HISTORY: Amended 1961, No. 228 , § 1, eff. July 21, 1961; 1969, No. 207 (Adj. Sess.), § 3, eff. Jan. 1, 1971.

History

Source.

1957, No. 206 . 1953, No. 82 . V.S. 1947, § 18. P.L. § 18. G.L. § 38. 1915, No. 1 , § 4. P.S. § 36. V.S. § 30. 1892, No. 101 , § 1. R.L. § 29. G.S. 4, § 17. 1841, No. 1 . R.S. 111, § 12. 1834, No. 1 .

Amendments

—1969 (Adj. Sess.). Amended section generally.

—1961. Designated existing provisions of section as subsec. (a), inserted “before July 1 of any session” following “general assembly” in that subsection, and added subsec. (b).

ANNOTATIONS

Application.

July 1 default date of the statute concerning the effective date of laws cannot apply to invalidate the Legislature’s intent to accomplish exactly the opposite as expressed in its repeal of the sunset provision of the attorney’s fees provision of the Prompt Pay Act; nor does the statutory prohibition against ex post facto reanimation of expired legislation apply to the alteration of a statute if passed before the affected statute has expired, as with the Legislature’s repeal of the sunset provision. Thus, in accordance with the Legislature’s explicit and undisputed intention, the attorney’s fees provision of the Prompt Pay Act remained in effect after June 30, 1996. First Quality Carpets, Inc. v. Kirschbaum, 2012 VT 41, 192 Vt. 28, 54 A.3d 465, 2012 Vt. LEXIS 35 (2012).

Since the Vermont Code forbids an application of the default date of the statute concerning the effective date of laws to frustrate plain legislative intent, and since the Court is to effectuate that intent, the Legislature’s repeal of the sunset provision of the attorney’s fees provision of the Prompt Pay Act must be read as taking effect before any unintended nullification by default. Accordingly, the attorney’s fees provision continued in effect after June 30, 1996. First Quality Carpets, Inc. v. Kirschbaum, 2012 VT 41, 192 Vt. 28, 54 A.3d 465, 2012 Vt. LEXIS 35 (2012).

Cited.

Cited in Town of Sandgate v. Colehamer, 156 Vt. 77, 589 A.2d 1205, 1990 Vt. LEXIS 266 (1990).

§ 213. Pending suits unaffected.

No act of the General Assembly shall affect a suit begun or pending at the time of its passage, except acts regulating practice in court, relating to the competency of witnesses, or relating to amendments of process or pleadings.

HISTORY: Amended 2015, No. 97 (Adj. Sess.), § 1.

History

Source.

V.S. 1947, § 28. P.L. § 27. G.L. § 36. P.S. § 34. V.S. § 28. 1890, No. 31 , §§ 1, 2.

Amendments

—2015 (Adj. Sess.). Section amended generally.

ANNOTATIONS

Act 250.

It is provided by statute that acts of the General Assembly, except those regulating practice in court, relating to the competency of witnesses or to amendments of process or pleadings, shall not affect a suit begun or pending at the time of their passage. Just as this provision protects applicants from newly adopted ordinances, regulations, or laws unfavorable to an already-submitted permit application, so too it prevents an applicant for an Act 250 permit from selectively taking advantage of favorable changes in the law on reconsideration, which is merely the continuation of the original permit application. In re Times & Seasons, 2011 VT 76, 190 Vt. 163, 27 A.3d 323, 2011 Vt. LEXIS 70 (2011).

Application.

This section applies to newly added legislative enactments only. In re T.L.S., 144 Vt. 536, 481 A.2d 1037, 1984 Vt. LEXIS 513 (1984).

Construction with other laws.

Where an act indicates no intention inconsistent with this section, it must be construed in conformity with it. Fuller v. City of Montpelier, 73 Vt. 44, 50 A. 544, 1901 Vt. LEXIS 122 (1901).

Ordinances.

The authority to enact ordinances is derived from state authority; thus, like state statutes, no ordinance other than those relating to competency of witnesses, practice in court and amendments of process or pleading can affect suits begun or pending at the time of passage. In re Preseault, 132 Vt. 471, 321 A.2d 65, 1974 Vt. LEXIS 370 (1974); Smith v. Winhall Planning Commission, 140 Vt. 178, 436 A.2d 760, 1981 Vt. LEXIS 589 (1981).

Practice.

Evidence of passenger’s failure to wear safety belt at time of motor vehicle accident was properly excluded, since provisions of safety belt statute prohibiting introduction of evidence of noncompliance with statute were procedural rather than substantive in nature, and thus those provisions applied notwithstanding fact that passenger’s personal injury action was pending at time safety belt statute became effective. Ulm v. Ford Motor Co., 170 Vt. 281, 750 A.2d 981, 2000 Vt. LEXIS 1 (2000).

A new enactment, having reference to practice and procedure only, applies to all actions pending as well as afterwards begun. Murray v. Mattison, 63 Vt. 479, 21 A. 532, 1891 Vt. LEXIS 137 (1891).

Retroactivity.

Decision whether a foreign divorce order could be modified was one of substantive rather than procedural law, and therefore enactment of Uniform Interstate Family Support Act could not operate retroactively to affect outcome of pending motion to modify New York child support order. Cavallari v. Martin, 169 Vt. 210, 732 A.2d 739, 1999 Vt. LEXIS 86 (1999).

This section did not require retrospective application of Vermont Arbitration Act, sections 5651-5681 of Title 12, since enforceability of arbitration agreements is a question of substantive law. Preziose v. Lumbermen's Mutual Casualty Co., 152 Vt. 604, 568 A.2d 397, 1989 Vt. LEXIS 195 (1989).

Section 5431 of Title 12, giving right of action for loss of consortium, created a substantive right and was not retroactive where this section withheld retroactivity from all statutes save those relating to practice in court, competency of witnesses and amendment of process or pleading. Whitney v. Fisher, 138 Vt. 468, 417 A.2d 934, 1980 Vt. LEXIS 1270 (1980).

Suits begun or pending.

Suit or cause is not pending until service has been made. Burlington v. Burlington Traction Co., 70 Vt. 491, 41 A. 514, 1898 Vt. LEXIS 67 (1898).

Where a petition is brought for appointment of commissioners to inquire into necessity of a public highway, alleging that the selectmen have refused to lay the highway, the original application to the selectmen is the beginning of the suit within the meaning of this section. Dunn v. Town of Pownal, 65 Vt. 116, 26 A. 484, 1893 Vt. LEXIS 40 (1893).

Cited.

Cited in Mattison v. Poulen, 134 Vt. 158, 353 A.2d 327, 1976 Vt. LEXIS 619 (1976); Woods v. Shumway, 134 Vt. 242, 356 A.2d 529, 1976 Vt. LEXIS 641 (1976); Montgomery v. Brinver Corp., 142 Vt. 461, 457 A.2d 644, 1983 Vt. LEXIS 416 (1983); Myott v. Myott, 149 Vt. 573, 547 A.2d 1336, 1988 Vt. LEXIS 99 (1988); In re McCormick Management Co., 149 Vt. 585, 547 A.2d 1319, 1988 Vt. LEXIS 82 (1988); Neel v. Sun, 156 Vt. 239, 590 A.2d 887, 1991 Vt. LEXIS 57 (1991); State Agency of Natural Resources v. Riendeau, 157 Vt. 615, 603 A.2d 360, 1991 Vt. LEXIS 232 (1991); Massachusetts Municipal Wholesale Electric Co. v. State, 161 Vt. 346, 639 A.2d 995, 1994 Vt. LEXIS 5 (1994); In re Molgano, 163 Vt. 25, 653 A.2d 772, 1994 Vt. LEXIS 164 (1994).

§ 214. Effect of amendment or repeal.

  1. The amendment or repeal of an act or of a provision of the Vermont Statutes Annotated shall not revive an act or statutory provision which has been repealed.
  2. The amendment or repeal of an act or statutory provision, except as provided in subsection (c) of this section, shall not:
    1. affect the operation of the act or provision prior to the effective date of the amendment or repeal thereof;
    2. affect any right, privilege, obligation, or liability acquired, accrued, or incurred prior to the effective date of the amendment or repeal;
    3. affect any violation of the act or provision amended or repealed, or any penalty or forfeiture incurred thereunder, prior to the effective date of the amendment or repeal;
    4. affect any suit, remedy, or proceeding to enforce or give effect to any right, privilege, obligation, or liability acquired, incurred, or accrued under the amended or repealed provision prior to the effective date of the amendment or repeal; and the suit, remedy, or proceeding may be instituted, prosecuted, or continued as if the act or provision had not been repealed or amended.
  3. If the penalty or punishment for any offense is reduced by the amendment of an act or statutory provision, the same shall be imposed in accordance with the act or provision as amended unless imposed prior to the date of the amendment.

HISTORY: Amended 1969, No. 207 (Adj. Sess.), § 4, eff. March 24, 1970.

History

Source.

V.S. 1947, § 34. P.L. § 33. G.L. § 37. P.S. § 35. V.S. § 29. R.L. § 28. G.S. 4, §§ 18, 19. 1851, No. 15 .

Amendments

—1969 (Adj. Sess.). Amended section generally.

ANNOTATIONS

Application.

When petitioner filed his postconviction relief (PCR) petition in 2001, he had an unconditional right to representation under the then-existing version of the statute regarding the representation of postconviction relief petitioners. Under the statute regarding the effect of a statutory amendment, his right to representation under the former PCR statute remained vested after the statute was amended in 2004; thus, petitioner did not lose his right to appointed counsel when his attorney withdrew based on his determination that the PCR petition no longer raised nonfrivolous bases for relief. In re Crannell, 2012 VT 85, 192 Vt. 406, 60 A.3d 632, 2012 Vt. LEXIS 85 (2012).

July 1 default date of the statute concerning the effective date of laws cannot apply to invalidate the Legislature’s intent to accomplish exactly the opposite as expressed in its repeal of the sunset provision of the attorney’s fees provision of the Prompt Pay Act; nor does the statutory prohibition against ex post facto reanimation of expired legislation apply to the alteration of a statute if passed before the affected statute has expired, as with the Legislature’s repeal of the sunset provision. Thus, in accordance with the Legislature’s explicit and undisputed intention, the attorney’s fees provision of the Prompt Pay Act remained in effect after June 30, 1996. First Quality Carpets, Inc. v. Kirschbaum, 2012 VT 41, 191 Vt. 28, 54 A.3d 465, 2012 Vt. LEXIS 35 (2012).

Because the Legislature enacted its repeal of the sunset provision of the attorney’s fees provision of the Prompt Pay Act on April 6, 1996, before the sunset provision went into effect, the statute regarding the effect of amendment or repeal did not apply. First Quality Carpets, Inc. v. Kirschbaum, 2012 VT 41, 191 Vt. 28, 54 A.3d 465, 2012 Vt. LEXIS 35 (2012).

Deadlines listed in the statute dealing with challenging placement on the child abuse registry are solely procedural and therefore fall under a general exception to the statute that deals with an amendment’s retroactive effects on substantive rights. Furthermore, the deadlines in the registry statute were not in fact being applied retroactively, since petitioner had no appellate rights in the case until the date the charge was substantiated at which point the amendment adding the deadlines was already in effect. In re Beer, 2010 VT 31, 187 Vt. 641, 996 A.2d 225, 2010 Vt. LEXIS 30 (2010) (mem.).

Claimant’s right to receive compensation and employer’s obligation to pay it both accrued at the time of claimant’s injury and were governed by the version of 21 V.S.A. § 652 in effect at that time. Application of the amended 2000 amendment of that section would alter the preexisting rights of the parties. Therefore, subdivision (b)(2) of this section prohibits its retroactive application. Sanz v. Douglas Collins Construction, 2006 VT 102, 180 Vt. 619, 910 A.2d 914, 2006 Vt. LEXIS 261 (2006) (mem.).

This section did not apply exclusively to penalties sued for, or to penal statutes, but to all pending proceedings in court which depended upon any statute law. Pratt v. Jones, 25 Vt. 303, 1853 Vt. LEXIS 42 (1853).

Given that Vermont law specifically recognizes that when the Legislature reduces a penalty provision in a statute, the lighter penalty will be imposed for any action that has not reached final judgment, 1990 amendment to 8 V.S.A. § 2233 , penalty provision covering licensed lenders, was properly applied retroactively by the trial court. Klein v. Wolf Run Resort, Inc., 163 Vt. 506, 659 A.2d 1153, 1995 Vt. LEXIS 47 (1995).

Construction.

Because a “liability” of a reimbursable employer was established at the point of an employee making a valid claim for unemployment compensation benefits, such liability was not changed by the amendment to the reimbursement statute as to an employee’s gross misconduct. Windham County Sheriff's Dep't v. Dep't of Labor, 2013 VT 88, 195 Vt. 1, 86 A.3d 410, 2013 Vt. LEXIS 86 (2013).

Defendant failed in his argument that a post-conviction amendment to Vermont’s stalking statute mandated that he receive a new trial because, aside from defendant’s mere assertion that clarifying amendments are procedural per se, this suggested exception to the statutory provision on the retroactive effect of statutory amendments is unsupported by statutes or case law and the court declined to adopt it. State v. Van Aelstyn, 2007 VT 6, 181 Vt. 274, 917 A.2d 471, 2007 Vt. LEXIS 4, cert. denied, 552 U.S. 814, 128 S. Ct. 68, 169 L. Ed. 2d 17, 2007 U.S. LEXIS 10280 (2007).

Pursuant to 2d Cir. R. 0.27, the United States Court of Appeals for the Second Circuit certified three questions regarding the accrual of a workers’ compensation insurer’s reimbursement rights under 21 V.S.A. § 624(e) and 1 V.S.A. § 214(b)(2) , the status of an amendment to that section, and the definition of double recovery to the Vermont Supreme Court to consider pursuant to V.R.A.P. 14(a) where the dispute between the insurer and an individual who received both workers’ compensation benefits and a recovery under the underinsured motorist provision of a privately purchased insurance policy directly implicated multiple issues of state statutory law that lacked sufficient Vermont precedent from to which to make an informed determination with certainty. Travelers Insurance Co. v. Carpenter, 313 F.3d 97, 2002 U.S. App. LEXIS 25532 (2d Cir. 2002).

Repeal of criminal statute is not an amendment for purposes of subsection (c) of this section. State v. Lapan, 158 Vt. 382, 609 A.2d 970, 1992 Vt. LEXIS 50 (1992).

Retroactive application of new statutory law is normally prohibited by subsection (b) of this section. State v. Willis, 145 Vt. 459, 494 A.2d 108, 1985 Vt. LEXIS 317 (1985).

Subsection (b) of this section, providing that statutory changes will not generally be given retroactive application, does not prevent supreme court from overruling judge-made law and applying any new rule it decides to adopt in place of the pre-existing rule. Cavanaugh v. Abbott Laboratories, 145 Vt. 516, 496 A.2d 154, 1985 Vt. LEXIS 334 (1985).

Under this section statutory rights and penalties are determined by the statute in effect at the time of the occurrence of the facts and may be enforced after repeal or amendment if the underlying facts are proved. State v. Matthews, 131 Vt. 521, 310 A.2d 17, 1973 Vt. LEXIS 343 (1973).

Criminal penalty is “incurred,” as that word is used in subdivision (b)(3) of this section, when a criminal act is committed. State v. Matthews, 131 Vt. 521, 310 A.2d 17, 1973 Vt. LEXIS 343 (1973).

Subsection (c) of this section relates only where the penalty or punishment for any offense is reduced by the amendment of any act or statutory provision, and not to a repealed statute. State v. Matthews, 131 Vt. 521, 310 A.2d 17, 1973 Vt. LEXIS 343 (1973).

Criminal liability.

Decriminalization of an offense does not preclude application of an ameliorative amendment clause where offending conduct still carries a civil penalty. State v. Flagg, 160 Vt. 141, 624 A.2d 864, 1993 Vt. LEXIS 34 (1993).

To decide whether the penalty or punishment for an offense is reduced by an amendment, the court must determine whether the new enactment carries forward the essential provisions of the old statute, preserving its viability, and whether the new enactment expresses the legislative intent to continue to treat the conduct as culpable conduct, warranting punishment. State v. Flagg, 160 Vt. 141, 624 A.2d 864, 1993 Vt. LEXIS 34 (1993).

The fact that a new enactment accomplishes more than a mere reduction of punishment, in that it reclassifies an offense as a civil violation, does not affect its character as a legislative mitigation of punishment. State v. Flagg, 160 Vt. 141, 624 A.2d 864, 1993 Vt. LEXIS 34 (1993).

Change in law that reclassified as a civil violation, rather than a criminal offense, the operation of a motor vehicle with a suspended license after suspension period had expired and prior to reinstatement was applied retroactively since the change did not remove all liability for violative conduct. State v. Flagg, 160 Vt. 141, 624 A.2d 864, 1993 Vt. LEXIS 34 (1993).

In absence of amendment to criminal statute, legislative intent of subsection (c) of this section is to preserve right of prosecution and sentence and not to exculpate defendant by reason of repeal of criminal statute. State v. Lapan, 158 Vt. 382, 609 A.2d 970, 1992 Vt. LEXIS 50 (1992).

Sentence in excess of five years and $10,000 fine imposed in prosecution for dispensing regulated drug was proper, even though penalty statute and enhancement section were repealed prior to sentencing and replaced with provisions lacking enhancement section, since changes were not amendments for purposes of subsection (c) of this section and even if they had been, new enhancement provision would not have diminished sentence imposed. State v. Lapan, 158 Vt. 382, 609 A.2d 970, 1992 Vt. LEXIS 50 (1992).

This section evidences a legislative intent to continue criminal responsibility and penalty attaching to forbidden conduct, even though the criminal statute violated is repealed. State v. Matthews, 131 Vt. 521, 310 A.2d 17, 1973 Vt. LEXIS 343 (1973).

Criminal punishment.

Under Vermont’s saving statute, governing the effect of statutory amendments or repeals, a sentence is imposed by the superior court upon sentencing or entry of judgment. Thus, because the trial court sentenced defendant and entered judgment prior to the amendment in the law decriminalizing the conduct giving rise to his escape conviction, he was properly sentenced under the previous version of the statute. State v. Hinton, 2020 VT 68, 213 Vt. 1, 239 A.3d 246, 2020 Vt. LEXIS 76 (2020).

There was no need under the “saving clause” statute to exclude a 1989 sexual assault conviction in determining whether defendant was a habitual offender. The sentence was imposed prior to the date of the amendment of the sexual assault statute; furthermore, the statute applied to a reduction in the statutory punishment, whereas here there was no reduction in punishment but instead a redefinition of the required ages of the defendant and the victim. State v. Barron, 2011 VT 2, 189 Vt. 193, 16 A.3d 620, 2011 Vt. LEXIS 8 (2011).

Implied repeal.

This section was not designed to be limited to cases of formal repeal in literal terms, but to save suits depending on statutory provisions, where, on the bringing of the suits, the provisions on which they depended had ceased to be operative by reason of other enactments. Hine v. Pomeroy, 39 Vt. 211, 1867 Vt. LEXIS 6 (1867).

Purpose.

Purpose of this section is to ensure that an accused is not relieved of liability due to a repeal of a statute, while at the same time ensuring that outdated, harsh penalties are not imposed after the legislature has deemed them no longer necessary or appropriate. State v. Flagg, 160 Vt. 141, 624 A.2d 864, 1993 Vt. LEXIS 34 (1993).

Remedial changes.

A remedial change in a statute will apply to pending litigation unless it affects a pre-existing right, privilege, obligation or liability. Myott v. Myott, 149 Vt. 573, 547 A.2d 1336, 1988 Vt. LEXIS 99 (1988).

Repeal of saving clause.

Under this section, a suit pending under a statute repealed by an act containing a saving clause that the repeal should not affect pending suits was not affected by a later act which repealed the saving clause. Town of Strafford v. Town of Sharon, 61 Vt. 126, 17 A. 793, 1888 Vt. LEXIS 122 (1888).

Review.

In reviewing specific violations claimed by petitioners challenging the reapportionment of voting districts, the redistricting plan must be considered as a whole, taking into account the statewide implications. Ford Motor Credit Co. v. Welch, 2004 VT 94, 177 Vt. 563, 861 A.2d 1126, 2004 Vt. LEXIS 278 (2004) (mem.).

Sovereign immunity.

The 1982 amendment to section 1403 of Title 29, allowing suits against the state to the extent the state purchased liability insurance, should not be applied retroactively where the legislature included no retroactivity provision in its amendment and no strong ground was presented for overcoming the effect of subdivision (b)(2) providing that an amendment should not affect a right or liability previously accrued or incurred. Curran v. Marcille, 152 Vt. 247, 565 A.2d 1362, 1989 Vt. LEXIS 168 (1989).

Statutes of limitations.

Where three-year statute of limitation for crime of sexual assault had not run at time legislature extended limitation period from three to six years, defendant did not acquire at time of alleged offense a right to original limitation period, and six-year statute of limitation was retroactively applicable. State v. Petrucelli, 156 Vt. 382, 592 A.2d 365, 1991 Vt. LEXIS 91 (1991).

Subdivision (b)(4) of this section, which forbids any retroactive application that would affect any suit, remedy or proceeding to enforce any right or liability accrued under the amended or repealed provision, collapses the common law distinction between “rights” and “remedies” in regard to retroactivity of limitations statutes, and limits amendments affecting both a “right” and the scope of the “remedy” available when the cause of action accrues to prospective application. Stewart v. Darrow, 141 Vt. 248, 448 A.2d 788, 1982 Vt. LEXIS 517 (1982).

Cited.

Cited in Harris v. Town of Townshend, 56 Vt. 716, 1883 Vt. LEXIS 141 (1883); Town of Grand Isle v. Town of Milton, 68 Vt. 234, 35 A. 71, 1896 Vt. LEXIS 77 (1896); Charles E. Brown & Co. v. Ware, 87 Vt. 121, 88 A. 507, 1913 Vt. LEXIS 176 (1913); Thayer v. Glynn, 93 Vt. 257, 106 A. 834, 1919 Vt. LEXIS 158 (1919); City of Newport v. Town of Glover, 131 Vt. 61, 300 A.2d 632, 1973 Vt. LEXIS 267 (1973); In re Chamberlain, 131 Vt. 540, 310 A.2d 21, 1973 Vt. LEXIS 349 (1973); In re Dunn, 131 Vt. 541, 310 A.2d 22, 1973 Vt. LEXIS 350 (1973); State v. Senna, 132 Vt. 428, 321 A.2d 5, 1974 Vt. LEXIS 363 (1974); In re Estate of Eddy, 135 Vt. 468, 380 A.2d 530, 1977 Vt. LEXIS 659 (1977); Capron v. Romeyn, 137 Vt. 553, 409 A.2d 565, 1979 Vt. LEXIS 1076 (1979); Northwood AMC Corp. v. American Motors Corp., 139 Vt. 145, 423 A.2d 846, 1980 Vt. LEXIS 1496 (1980); McGovern v. Department of Motor Vehicles, 139 Vt. 169, 423 A.2d 489, 1980 Vt. LEXIS 1495 (1980); State v. Sanguinetti, 141 Vt. 349, 449 A.2d 922, 1982 Vt. LEXIS 546 (1982); Montgomery v. Brinver Corp., 142 Vt. 461, 457 A.2d 644, 1983 Vt. LEXIS 416 (1983); In re T.L.S., 144 Vt. 536, 481 A.2d 1037, 1984 Vt. LEXIS 513 (1984); Cronin v. State, 148 Vt. 252, 531 A.2d 929, 1987 Vt. LEXIS 475 (1987), Town of Brighton v. Griffin, 148 Vt. 264, 532 A.2d 1292 (1987); State v. Zinn, 150 Vt. 278, 552 A.2d 413, 1988 Vt. LEXIS 156 (1988); In re Town of Sherburne, 154 Vt. 596, 581 A.2d 274, 1990 Vt. LEXIS 162 (1990); Lillicrap v. Martin, 156 Vt. 165, 591 A.2d 41, 1989 Vt. LEXIS 281 (1989); Neel v. Sun, 156 Vt. 239, 590 A.2d 887, 1991 Vt. LEXIS 57 (1991); State Agency of Natural Resources v. Riendeau, 157 Vt. 615, 603 A.2d 360, 1991 Vt. LEXIS 232 (1991); Frangiosa v. Kapoukranidis, 160 Vt. 237, 627 A.2d 351, 1993 Vt. LEXIS 46 (1993); Massachusetts Municipal Wholesale Electric Co. v. State, 161 Vt. 346, 639 A.2d 995, 1994 Vt. LEXIS 5 (1994); Ulm v. Ford Motor Co., 170 Vt. 281, 750 A.2d 981, 2000 Vt. LEXIS 1 (2000); Agency of Natural Resources v. Towns, 173 Vt. 552, 790 A.2d 450, 2001 Vt. LEXIS 290 (2001); In re Eustance Act 250 Jurisdictional Opinion, 2009 VT 16, 185 Vt. 447, 970 A.2d 1285, 2009 Vt. LEXIS 26 (2009) (mem.).

§ 215. Severability of provisions.

The provisions of any act are severable. If any provision of an act is invalid, or if any application thereof to any person or circumstance is invalid, the invalidity shall not affect other provisions or applications which can be given effect without the invalid provision or application.

HISTORY: Added 1969, No. 16 , § 12, eff. March 11, 1969.

ANNOTATIONS

Construction.

Unconstitutional sections of Vermont campaign finance reform act could permissibly be severed from remainder of act. Landell v. Sorrell, 118 F. Supp. 2d 459, 2000 U.S. Dist. LEXIS 11606 (D. Vt. 2000), aff'd in part, vacated in part, 300 F.3d 129, 2002 U.S. App. LEXIS 15770 (2d Cir. 2002), aff'd in part, vacated in part, 382 F.3d 91, 2002 U.S. App. LEXIS 28171 (2d Cir. 2002) (issue not raised on appeal).

Cited.

Cited in Pabst v. Commissioner of Taxes, 136 Vt. 126, 388 A.2d 1181, 1978 Vt. LEXIS 702 (1978), State v. Stevens, 137 Vt. 473, 408 A.2d 622, 1979 Vt. LEXIS 1071 (1979); State v. Carpenter, 138 Vt. 140, 412 A.2d 285, 1980 Vt. LEXIS 1041 (1980).

Chapter 5. Common Law; General Rights

Subchapter 1. Generally

§ 271. Common law adopted.

So much of the common law of England as is applicable to the local situation and circumstances and is not repugnant to the constitution or laws shall be laws in this State and courts shall take notice thereof and govern themselves accordingly.

History

Source.

V.S. 1947, § 1263. P.L. § 1234. G.L. § 1479. P.S. § 1221. V.S. § 898. R.L. § 689. G.S. 32, § 1. R.S. 27, § 1. R. 1797, p. 71, § 1. 1796, p. 4. R. 1787, p. 30.

ANNOTATIONS

Generally.

Common law of Vermont is so much of unwritten law of England, as amended or altered by acts of Parliament, which was in force at time of migration of settlers to this country, as is applicable to local situation and circumstances and not repugnant to state constitution or laws, and such other acts of Parliament passed since migration which have been adopted by courts of state. State v. O'Brien, 106 Vt. 97, 170 A. 98, 1934 Vt. LEXIS 147 (1934); Whiting Co. v. City of Burlington, 106 Vt. 446, 175 A. 35, 1934 Vt. LEXIS 189 (1934).

While taxation of costs, eo nomine, was unknown at common law, by the Statute of Gloucester, 6 Edw. I, costs were allowed a successful plaintiff in real actions, and by later statutes in all actions, and the same right was given a successful defendant by 23 Hen. VIII and subsequent amendments, and as our statute of 1779, adopting “the common law as it is generally practiced and understood in the New England States,” adopted the common law of England as altered by statutes in force October 1, 1760, the date arbitrarily selected as the date to which our statute related, the usual statement that “it is only by force of our statutes that costs are ever taxed and allowed” would be less confusing if it recited that it is only by force of our statutes that costs are taxed and allowed in cases where they were not allowed by the law of England in force October 1, 1760. Comstock's Adm'r v. Jacobs, 89 Vt. 510, 96 A. 4, 1915 Vt. LEXIS 237 (1915).

The statute of 1782, adopting common law of England, was largely declaratory of the common law as here practiced and understood, and the various subsequent changes in the wording of the statute were not intended to work a change in the law itself. Clement v. Graham, 78 Vt. 290, 63 A. 146, 1906 Vt. LEXIS 151 (1906).

Conspiracy.

Conspiracy is misdemeanor at common law and consequently an offense in Vermont, and is crime separate and distinct from offense for doing of which conspiracy was formed. State v. Coolidge, 106 Vt. 183, 171 A. 244, 1934 Vt. LEXIS 157 (1934).

A combination of two or more persons to constrain an employer to discharge a particular workman by threatening to prevent his obtaining other workmen, or to constrain a workman to join a certain organization by threatening to prevent him from obtaining work unless he does so is a criminal conspiracy at common law. State v. Dyer, 67 Vt. 690, 32 A. 814, 1894 Vt. LEXIS 67 (1894).

Construction.

Where statutes covering a subject are more narrow than the common law, the common law right continues as to cases outside their scope. State v. Sylvester, 112 Vt. 202, 22 A.2d 505, 1941 Vt. LEXIS 153 (1941).

Common law adopted in Vermont is rule of decision in all courts, by which is meant that such common law is law of state, and is to be administered as such by its courts; and, except as modified or repealed by statute, its rules and principles determine rights of, and prescribe rules of conduct for, all persons. E. B. & A. C. Whiting Co. v. City of Burlington, 106 Vt. 446, 175 A. 35, 1934 Vt. LEXIS 189 (1934).

Under this section English decisions before the date of separation, as well as those after, are to be taken merely as declarative of the common law, and not as binding precedents to be blindly followed. In re Heaton's Estate, 89 Vt. 550, 96 A. 21, 1915 Vt. LEXIS 246 (1915).

Divorce and annulment.

Jurisdiction of the subject of granting divorces, and annulling marriages, never having been exercised by the ordinary law courts in England, could not be exercised by the same courts in this country, until jurisdiction was given them by the legislature. LeBarron v. LeBarron, 35 Vt. 365, 1862 Vt. LEXIS 51 (1862).

Habeas corpus.

Unmarried parents’ habeas corpus petition for return of baby for which mother had relinquished custody was governed by common law, pursuant to this section, not by section 3953 of Title 12, giving person imprisoned or otherwise restrained of his liberty the right to prosecute a writ of habeas corpus. In re M. and G., 132 Vt. 410, 321 A.2d 19, 1974 Vt. LEXIS 360 (1974).

By common law in force in England before the American Revolution the writ of habeas corpus was used as a means of placing infants under the disposition of courts of law and equity. In re Cooke, 114 Vt. 177, 41 A.2d 177, 1945 Vt. LEXIS 66 (1945).

Implied repeal.

The common law is impliedly repealed by a statute which is inconsistent therewith or which undertakes to revise and cover the whole subject matter. E. B. & A. C. Whiting Co. v. City of Burlington, 106 Vt. 446, 175 A. 35, 1934 Vt. LEXIS 189 (1934); State v. Sylvester, 112 Vt. 202, 22 A.2d 505, 1941 Vt. LEXIS 153 (1941).

Maintenance.

The doctrine of the ancient common law in respect to maintenance has been much narrowed in Vermont and the offense itself seems now to be confined to the intermeddling of a stranger in a suit for the purpose of stirring up strife and continuing litigation. Collette v. Town of Charlotte, 114 Vt. 357, 45 A.2d 203, 1946 Vt. LEXIS 78 (1946).

Punishment.

Though constitution of Vermont contains no provision similar to eighth amendment to federal constitution, prohibiting excessive fines and cruel and unusual punishments, common law of England, which had similar provision, was adopted by this section. State v. O'Brien, 106 Vt. 97, 170 A. 98, 1934 Vt. LEXIS 147 (1934).

Punishment for misdemeanor at common law, when law had not provided some other specific penalty, was fine and imprisonment, or either, at discretion of court, and that is law of Vermont. State v. Coolidge, 106 Vt. 183, 171 A. 244, 1934 Vt. LEXIS 157 (1934).

Statutory changes.

The common law is changed by statute only if the statute overturns the common law in clear and unambiguous language, or if the statute is clearly inconsistent with the common law, or the statute attempts to cover the entire subject matter. Langle v. Kurkul, 146 Vt. 513, 510 A.2d 1301, 1986 Vt. LEXIS 347 (1986).

A statute does not change common law by doubtful implication; it is only overturned by clear and unambiguous language. State v. Brown, 147 Vt. 324, 515 A.2d 1059, 1986 Vt. LEXIS 409 (1986).

Cited.

Cited in University of Vermont v. Ward, 104 Vt. 239, 158 A. 773, 1932 Vt. LEXIS 146 (1932); State v. Woolley, 109 Vt. 53, 192 A. 1, 1937 Vt. LEXIS 115 (1937); Beecham v. Leahy, 130 Vt. 164, 287 A.2d 836, 1972 Vt. LEXIS 246 (1972); Richard v. Richard, 131 Vt. 98, 300 A.2d 637, 1973 Vt. LEXIS 274 (1973); Gallagher Lumber Co. v. Shapiro, 137 Vt. 139, 400 A.2d 984, 1979 Vt. LEXIS 947 (1979); In re Stevens, 146 Vt. 6, 497 A.2d 744, 1985 Vt. LEXIS 420 (1985); State v. Tedesco, 147 Vt. 133, 513 A.2d 1164, 1986 Vt. LEXIS 379 (1986), State v. LeBlanc, 149 Vt. 141, 540 A.2d 1037, 1987 Vt. LEXIS 616 (1987); State v. Barrows, 158 Vt. 445, 614 A.2d 377, 1992 Vt. LEXIS 78 (1992); Frangiosa v. Kapoukranidis, 160 Vt. 237, 627 A.2d 351, 1993 Vt. LEXIS 46 (1993); State v. Mills, 167 Vt. 365, 706 A.2d 953, 1998 Vt. LEXIS 1 (1998); In re Reynolds, 170 Vt. 352, 749 A.2d 1133, 2000 Vt. LEXIS 19 (2000).

§ 272. Equality of privilege.

In cases proper for the cognizance of the civil authority and the courts of judicature in this State, citizens of the United States shall be equally entitled to the privileges of law and justice with citizens of this State.

History

Source.

V.S. 1947, § 1264. P.L. § 1235. G.L. § 1480. P.S. § 1222. V.S. § 899. R.L. § 690. G.S. 32, § 2. R.S. 27, § 2. R. 1797, p. 71, § 2. R. 1787, p. 31.

§ 273. Eligibility to hold office.

A person shall not be debarred on account of sex from holding any office or position of trust or responsibility under the State, including U.S. Senator and Representative to Congress or any county, town, city, village, town school district, or incorporated fire, lighting, or school district office.

History

Source.

V.S. 1947, § 108. P.L. § 90. 1933, No. 157 , § 46. 1921, No. 6 , § 1.

Subchapter 2. Public Information

ANNOTATIONS

Application.

School board did not violate the open-meeting law, as an e-mail merely forwarded comments for discussion at upcoming meetings and thus was not a “meeting.” At most, the board chair indicated that the forwarded messages were “not good” and reinforced the need for the board to move forward on resolving plaintiff’s employment status. Burch-Clay v. Taylor, 2015 VT 110, 200 Vt. 166, 130 A.3d 180, 2015 Vt. LEXIS 89 (2015).

Open Meeting Law is applicable to University of Vermont and its committees. Animal Legal Defense Fund, Inc. v. Institutional Animal Care & Use Committee, 159 Vt. 133, 616 A.2d 224, 1992 Vt. LEXIS 117 (1992).

Attorney’s fees.

It was within discretion of trial court to award attorney’s fees to prevailing plaintiffs in action seeking declaration that Institutional Animal Care and Use Committee of the University of Vermont was subject to Open Meeting Law and Public Records Act. Animal Legal Defense Fund, Inc. v. Institutional Animal Care & Use Committee, 159 Vt. 133, 616 A.2d 224, 1992 Vt. LEXIS 117 (1992).

In action seeking declaration that Institutional Animal Care and Use Committee of University of Vermont was subject to Open Meeting Law and Public Records Act, award of $3,713 attorney’s fees, which amounted to one-half of prevailing plaintiffs’ requested fees, was not unreasonable. Animal Legal Defense Fund, Inc. v. Institutional Animal Care & Use Committee, 159 Vt. 133, 616 A.2d 224, 1992 Vt. LEXIS 117 (1992).

Construction.

It is clear in reading the earlier and amended legislative enactments together that the Legislature did not intend for the term “meeting” in the open-meeting law to encompass the distribution by e-mail of information for discussion at meetings. Burch-Clay v. Taylor, 2015 VT 110, 200 Vt. 166, 130 A.3d 180, 2015 Vt. LEXIS 89 (2015).

Public’s right to attend meetings of public agencies is a truism of a republican form of government; for enforcement of such right plaintiffs must avail themselves of the legislative enactments giving effect to the constitutional principles that officers of government are servants of the people and that the doors of the General Assembly shall be open to the public. Rowe v. Brown, 157 Vt. 373, 599 A.2d 333, 1991 Vt. LEXIS 197 (1991).

The Open Meeting Law does not create a private tort remedy for damages. Rowe v. Brown, 157 Vt. 373, 599 A.2d 333, 1991 Vt. LEXIS 197 (1991).

Construction with other law.

State constitution does not prevent legislature from holding public bodies, under authority of officers of government, subject to mandates of Open Meeting law. Animal Legal Defense Fund, Inc. v. Institutional Animal Care & Use Committee, 159 Vt. 133, 616 A.2d 224, 1992 Vt. LEXIS 117 (1992).

Standing.

Public service corporation which owned and operated electric distribution facilities had standing to bring taxpayer’s suit to redress alleged violations by municipal officials of requirements of this subchapter. Central Vermont Public Service Corp. v. Town of Springfield, 135 Vt. 436, 379 A.2d 677, 1977 Vt. LEXIS 648 (1977).

Notes to Opinions

Legislative bodies.

As used in this subchapter, legislative bodies include legislative committees; thus legislative committees must comply with the provisions of this subchapter as to open sessions and the keeping of minutes. 1966-68 Vt. Op. Att'y Gen. 101.

§ 310. Definitions.

As used in this subchapter:

  1. “Business of the public body” means the public body’s governmental functions, including any matter over which the public body has supervision, control, jurisdiction, or advisory power.
  2. “Deliberations” means weighing, examining, and discussing the reasons for and against an act or decision, but expressly excludes the taking of evidence and the arguments of parties.
    1. “Meeting” means a gathering of a quorum of the members of a public body for the purpose of discussing the business of the public body or for the purpose of taking action. (3) (A) “Meeting” means a gathering of a quorum of the members of a public body for the purpose of discussing the business of the public body or for the purpose of taking action.
    2. “Meeting” shall not mean any communication, including in person or through e-mail, telephone, or teleconferencing, between members of a public body for the purpose of scheduling a meeting, organizing an agenda, or distributing materials to discuss at a meeting, provided that:
      1. no other business of the public body is discussed or conducted; and
      2. such a communication that results in written or recorded information shall be available for inspection and copying under the Public Records Act as set forth in chapter 5, subchapter 3 of this title.
    3. “Meeting” shall not mean occasions when a quorum of a public body attends social gatherings, conventions, conferences, training programs, press conferences, media events, or otherwise gathers, provided that the public body does not discuss specific business of the public body that, at the time of the exchange, the participating members expect to be business of the public body at a later time.
    4. “Meeting” shall not mean a gathering of a quorum of a public body at a duly warned meeting of another public body, provided that the attending public body does not take action on its business.
  3. “Public body” means 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, except that “public body” does not include councils or similar groups established by the Governor for the sole purpose of advising the Governor with respect to policy.
  4. “Publicly announced” means that notice is 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 person who has requested under subdivision 312(c)(5) of this title to be notified of special meetings.
  5. “Quasi-judicial proceeding” means a proceeding which is:
    1. a contested case under the Vermont Administrative Procedure Act; or
    2. a case in which the legal rights of one or more persons who are granted party status are adjudicated, which is conducted in such a way that all parties have opportunity to present evidence and to cross-examine witnesses presented by other parties, which results in a written decision, and the result of which is appealable by a party to a higher authority.

HISTORY: Added 1987, No. 256 (Adj. Sess.), § 1; amended 2013, No. 143 (Adj. Sess.), § 1; 2017, No. 166 (Adj. Sess.), § 1.

History

References in text.

The Vermont Administrative Procedure Act, referred to in subdiv. (5)(A), is codified as 3 V.S.A. § 801 et seq.

Amendments

—2017 (Adj. Sess.). Section amended generally.

—2013 (Adj. Sess.). Subdivision (2): Added the second sentence.

Subdivision (4): Substituted “person” for “editor, publisher or news director” following “and to any”, inserted “subdivision” preceding “312(c)(5)”, and made a minor stylistic change.

ANNOTATIONS

Quasi-judicial proceeding.

There is no dispute that district commissions are public agencies that act in a quasi-judicial capacity, as the commissions hear evidence and issue rulings in the manner of a court, and their decisions are subject to review by the Environmental Division of the Superior Court. Their work satisfies an ordinary understanding of the term “quasi-judicial” for purposes of the exemption from disclosure for “records of, or internal materials prepared for, the deliberations of any public agency acting in a judicial or quasi-judicial capacity,” and it is also consistent with the definition of the term “quasi-judicial proceeding” under the Vermont Open Meetings Law. Rueger v. Natural Res. Bd., 2012 VT 33, 191 Vt. 429, 49 A.3d 112, 2012 Vt. LEXIS 29 (2012).

Collective bargaining labor negotiations between a school board negotiation committee and a teachers’ association are not “meetings” under the Open Meeting Law. Negotiations Comm. of Caledonia Central Supervisory Union v. Caledonia Cent. Educ. Ass'n, 2018 VT 18, 206 Vt. 636, 184 A.3d 236, 2018 Vt. LEXIS 21 (2018).

University of Vermont.

As an instrumentality of state, University of Vermont falls within plain meaning of term “public body” under subdivision (3) of this section. Animal Legal Defense Fund, Inc. v. Institutional Animal Care & Use Committee, 159 Vt. 133, 616 A.2d 224, 1992 Vt. LEXIS 117 (1992).

Institutional Animal Care and Use Committee, created by University of Vermont (UVM) as a condition of receiving federal funding, is a policymaking committee of UVM subject to mandates of Open Meeting Law. Animal Legal Defense Fund, Inc. v. Institutional Animal Care & Use Committee, 159 Vt. 133, 616 A.2d 224, 1992 Vt. LEXIS 117 (1992).

§ 311. Declaration of public policy; short title.

  1. In enacting this subchapter, the legislature finds and declares that public commissions, boards, and councils and other public agencies in this State exist to aid in the conduct of the people’s business and are accountable to them pursuant to Chapter I, Article VI of the Vermont Constitution.
  2. This subchapter may be known and cited as the Vermont Open Meeting Law.

HISTORY: Amended 1979, No. 151 (Adj. Sess.), § 1, eff. April 24, 1980.

History

Source.

1957, No. 122 , § 1.

Revision note—

Substituted “Chapter I, Article VI of the Vermont constitution” for “Article VI of the Vermont constitution” in subsec. (a) to conform reference to V.S.A. style.

Amendments

—1979 (Adj. Sess.). Added “; short title” at the end of the catchline, designated existing provisions of section as subsec. (a), and added subsec. (b).

ANNOTATIONS

Cited.

Cited in Rutland Cable T.V., Inc. v. City of Rutland, 122 Vt. 1, 163 A.2d 117, 1960 Vt. LEXIS 91 (1960); Sprague v. University of Vermont, 661 F. Supp. 1132, 1987 U.S. Dist. LEXIS 4721 (D. Vt. 1987); Animal Legal Defense Fund, Inc. v. Institutional Animal Care & Use Committee, 159 Vt. 133, 616 A.2d 224, 1992 Vt. LEXIS 117 (1992); In re Trombly, 160 Vt. 215, 627 A.2d 855, 1993 Vt. LEXIS 41 (1993); Trombley v. Bellows Falls Union High School District No. 27, 160 Vt. 101, 624 A.2d 857, 1993 Vt. LEXIS 33 (1993); Town of Brattleboro v. Garfield, 2006 VT 56, 180 Vt. 90, 904 A.2d 1157, 2006 Vt. LEXIS 140 (2006).

§ 312. Right to attend meetings of public agencies.

    1. All meetings of a public body are declared to be open to the public at all times, except as provided in section 313 of this title. No resolution, rule, regulation, appointment, or formal action shall be considered binding except as taken or made at such open meeting, except as provided under subdivision 313(a)(2) of this title. A meeting of a public body is subject to the public accommodation requirements of 9 V.S.A. chapter 139. A public body shall electronically record all public hearings held to provide a forum for public comment on a proposed rule, pursuant to 3 V.S.A. § 840 . The public shall have access to copies of such electronic recordings as described in section 316 of this title. (a) (1) All meetings of a public body are declared to be open to the public at all times, except as provided in section 313 of this title. No resolution, rule, regulation, appointment, or formal action shall be considered binding except as taken or made at such open meeting, except as provided under subdivision 313(a)(2) of this title. A meeting of a public body is subject to the public accommodation requirements of 9 V.S.A. chapter 139. A public body shall electronically record all public hearings held to provide a forum for public comment on a proposed rule, pursuant to 3 V.S.A. § 840 . The public shall have access to copies of such electronic recordings as described in section 316 of this title.
    2. Participation in meetings through electronic or other means.
      1. As long as the requirements of this subchapter are met, one or more of the members of a public body may attend a regular, special, or emergency meeting by electronic or other means without being physically present at a designated meeting location.
      2. If one or more members attend a meeting by electronic or other means, such members may fully participate in discussing the business of the public body and voting to take an action, but any vote of the public body that is not unanimous shall be taken by roll call.
      3. Each member who attends a meeting without being physically present at a designated meeting location shall:
        1. identify himself or herself when the meeting is convened; and
        2. be able to hear the conduct of the meeting and be heard throughout the meeting.
      4. If a quorum or more of the members of a public body attend a meeting without being physically present at a designated meeting location, the agenda required under subsection (d) of this section shall designate at least one physical location where a member of the public can attend and participate in the meeting. At least one member of the public body, or at least one staff or designee of the public body, shall be physically present at each designated meeting location.
    1. Minutes shall be taken of all meetings of public bodies. The minutes shall cover all topics and motions that arise at the meeting and give a true indication of the business of the meeting. Minutes shall include at least the following minimal information: (b) (1) Minutes shall be taken of all meetings of public bodies. The minutes shall cover all topics and motions that arise at the meeting and give a true indication of the business of the meeting. Minutes shall include at least the following minimal information:
      1. all members of the public body present;
      2. all other active participants in the meeting;
      3. all motions, proposals, and resolutions made, offered, and considered, and what disposition is made of same; and
      4. the results of any votes, with a record of the individual vote of each member if a roll call is taken.
    2. Minutes of all public meetings shall be matters of public record, shall be kept by the clerk or secretary of the public body, and shall be available for inspection by any person and for purchase of copies at cost upon request after five calendar days from the date of any meeting. Meeting minutes shall be posted no later than five calendar days from the date of the meeting to a website, if one exists, that the public body maintains or has designated as the official website of the body. Except for draft minutes that have been substituted with updated minutes, posted minutes shall not be removed from the website sooner than one year from the date of the meeting for which the minutes were taken.
    1. The time and place of all regular meetings subject to this section shall be clearly designated by statute, charter, regulation, ordinance, bylaw, resolution, or other determining authority of the public body, and this information shall be available to any person upon request. The time and place of all public hearings and meetings scheduled by all Executive Branch State agencies, departments, boards, or commissions shall be available to the public as required under 3 V.S.A. § 2222(c) . (c) (1) The time and place of all regular meetings subject to this section shall be clearly designated by statute, charter, regulation, ordinance, bylaw, resolution, or other determining authority of the public body, and this information shall be available to any person upon request. The time and place of all public hearings and meetings scheduled by all Executive Branch State agencies, departments, boards, or commissions shall be available to the public as required under 3 V.S.A. § 2222(c) .
    2. The time, place, and purpose of a special meeting subject to this section shall be publicly announced at least 24 hours before the meeting. Municipal public bodies shall post notices of special meetings in or near the municipal clerk’s office and in at least two other designated public places in the municipality, at least 24 hours before the meeting. In addition, notice shall be given, either orally or in writing, to each member of the public body at least 24 hours before the meeting, except that a member may waive notice of a special meeting.
    3. Emergency meetings may be held without public announcement, without posting of notices, and without 24-hour notice to members, provided some public notice thereof is given as soon as possible before any such meeting. Emergency meetings may be held only when necessary to respond to an unforeseen occurrence or condition requiring immediate attention by the public body.
    4. Any adjourned meeting shall be considered a new meeting, unless the time and place for the adjourned meeting is announced before the meeting adjourns.
    5. A person may request in writing that a public body notify the person of special meetings of the public body. The request shall apply only to the calendar year in which it is made, unless made in December, in which case it shall apply also to the following year.
    1. At least 48 hours prior to a regular meeting, and at least 24 hours prior to a special meeting, a meeting agenda shall be: (d) (1) At least 48 hours prior to a regular meeting, and at least 24 hours prior to a special meeting, a meeting agenda shall be:
      1. posted to a website, if one exists, that the public body maintains or designates as the official website of the body; and
      2. in the case of a municipal public body, posted in or near the municipal office and in at least two other designated public places in the municipality.
    2. A meeting agenda shall be made available to a person prior to the meeting upon specific request.
      1. Any addition to or deletion from the agenda shall be made as the first act of business at the meeting. (3) (A) Any addition to or deletion from the agenda shall be made as the first act of business at the meeting.
      2. Any other adjustment to the agenda may be made at any time during the meeting.
  1. Nothing in this section or in section 313 of this title shall be construed as extending to the Judicial Branch of the Government of Vermont or of any part of the same or to the Public Utility Commission; nor shall it extend to the deliberations of any public body in connection with a quasi-judicial proceeding; nor shall anything in this section be construed to require the making public of any proceedings, records, or acts which are specifically made confidential by the laws of the United States of America or of this State.
  2. A written decision issued by a public body in connection with a quasi-judicial proceeding need not be adopted at an open meeting if the decision will be a public record.
  3. The provisions of this subchapter shall not apply to site inspections for the purpose of assessing damage or making tax assessments or abatements, clerical work, or work assignments of staff or other personnel. Routine, day-to-day administrative matters that do not require action by the public body may be conducted outside a duly warned meeting, provided that no money is appropriated, expended, or encumbered.
  4. At an open meeting, the public shall be given a reasonable opportunity to express its opinion on matters considered by the public body during the meeting, as long as order is maintained. Public comment shall be subject to reasonable rules established by the chairperson. This subsection shall not apply to quasi-judicial proceedings.
  5. Nothing in this section shall be construed to prohibit the Parole Board from meeting at correctional facilities, with attendance at the meeting subject to rules regarding access and security established by the superintendent of the facility.

HISTORY: Amended 1973, No. 78 , § 1, eff. April 23, 1973; 1979, No. 151 (Adj. Sess.), § 2; 1987, No. 256 (Adj. Sess.), § 2; 1997, No. 148 (Adj. Sess.), § 64, eff. April 29, 1998; 1999, No. 146 (Adj. Sess.), § 7; 2013, No. 143 (Adj. Sess.), § 2; 2015, No. 129 (Adj. Sess.), § 1, eff. May 24, 2016.

History

Source.

1957, No. 122 , § 2.

Revision note

—2017. In subsec. (e), substituted “Public Utility Commission” for “Public Service Board” in accordance with 2017, No. 53 , § 12.

Amendments

—2015 (Adj. Sess.). Subdiv. (a)(2)(B): Inserted “that is not unanimous” preceding “shall be taken by roll call”.

Subdiv. (a)(2)(D): Amended generally.

Subdiv. (b)(2): Substituted “five calendar days” for “five days” in the first and second sentences and added the last sentence.

—2013 (Adj. Sess.). Subdivision (a)(1): Amended generally.

Subdivision (a)(2): Added.

Subdivision (b)(2): Added the second sentence.

Subdivision (c)(1): Added the second sentence, and made minor stylistic changes.

Subdivision (c)(2): Inserted “designated” preceding “public places”, and made a minor stylistic change.

Subdivision (c)(5): Amended generally.

Subsection (d): Rewrote the subsection.

—1999 (Adj. Sess.). Subsection (a): Added the fourth and fifth sentences.

—1997 (Adj. Sess.). Subsection (i): Added.

—1987 (Adj. Sess.). Amended section generally.

—1979 (Adj. Sess.). Subsection (a): Inserted “or of the state emergency board” following “state agency or authority” and “including the legislative body of the municipality or board of selectmen” following “municipal corporation” in the first sentence, added the second sentence and “except as provided under section 313 (a)(2) of this title” following “meeting” at the end of the third sentence.

Subdivision (b)(1): Substituted “bodies” for “agencies” following “public” at the end of the first sentence and “body” for “agency” following “public” in subdiv. (A) and deleted “and the expressed views of the participants” following “meeting” at the end of the second sentence.

Subdivision (b)(2): Substituted “public body” for “agency” following “secretary of the”.

Subdivision (c)(1): Amended generally.

—1973. Amended section generally.

Legislative intent; COVID-19 response and open meetings. 2019, No. 92 (Adj. Sess.), § 5 provides: “It is the intent of the General Assembly that during the continued spread of coronavirus disease 2019 (COVID-19) in the State of Vermont public bodies should organize and hold open meetings in a manner that will protect the health and welfare of the public while providing access to the operations of government. Public bodies should meet electronically and provide the public with electronic access to meetings in lieu of a designated physical location. Accordingly, this act sets forth temporary Open Meeting Law procedures in response to COVID-19.”

Open meeting law; temporary suspension of designated physical meeting location requirements. 2019, No. 92 (Adj. Sess.), § 6 provides: “(a) Notwithstanding 1 V.S.A. § 312(a) , during a declared state of emergency under 20 V.S.A. chapter 1 due to COVID-19:

“(1) a quorum or more of the members of a public body may attend a regular, special, or emergency meeting by electronic or other means without being physically present at a designated meeting location;

“(2) the public body shall not be required to designate a physical meeting location where the public may attend; and

“(3) the members and staff of the public body shall not be required to be physically present at a designated meeting location.

“(b) When the public body meets electronically under subsection (a) of this section, the public body shall use technology that permits the attendance of the public through electronic or other means. The public body shall allow the public to access the meeting by telephone whenever feasible. The public body shall post information on how the public may access meetings electronically and shall include this information in the published agenda for each meeting. Unless unusual circumstances make it impossible for them to do so, the legislative body of each municipality and each school board shall record its meetings held pursuant to this section.

“(c) In the event of a staffing shortage during a declared state of emergency under 20 V.S.A. chapter 1 due to COVID-19, a public body may extend the time limit for the posting of minutes prescribed in 1 V.S.A. § 312(b)(2) to not more than 10 days from the date of the meeting.”

ANNOTATIONS

Board or commission.

University of Vermont hearing committee which convened for the purpose of recommending to the president of the university whether to terminate plaintiff’s employment was a “board or commission” to which this section applied. Sprague v. University of Vermont, 661 F. Supp. 1132, 1987 U.S. Dist. LEXIS 4721 (D. Vt. 1987).

Common law.

The common law right of all citizens to inspect the public records and documents made and preserved by their government when not detrimental to the public interest is confirmed by this section with limited exceptions where considerations of public policy and necessity require some restraint. Matte v. City of Winooski, 129 Vt. 61, 271 A.2d 830, 1970 Vt. LEXIS 202 (1970).

Construction.

Nothing in the open meeting law precludes an agency, in a public meeting, from considering documents to which an exemption may ultimately attach. 232511 Investments, Ltd. v. Town of Stowe Development Review Board, 2005 VT 59, 178 Vt. 590, 878 A.2d 282, 2005 Vt. LEXIS 143 (2005) (mem.).

Fact that minutes of board of selectmen meeting could not be found did not require that meeting be deemed illegal or that action taken at meeting be declared void, since meeting was duly warned and therefore open to public, and uncontroverted testimony established that minutes were taken and filed according to custom. Town of Rutland v. City of Rutland, 170 Vt. 87, 743 A.2d 585, 1999 Vt. LEXIS 314 (1999).

Exemptions to public meeting laws must be strictly construed. Trombley v. Bellows Falls Union High School District No. 27, 160 Vt. 101, 624 A.2d 857, 1993 Vt. LEXIS 33 (1993).

Public meeting laws are entitled to a liberal construction in support of the goal of open access to public meetings for members of the public. Trombley v. Bellows Falls Union High School District No. 27, 160 Vt. 101, 624 A.2d 857, 1993 Vt. LEXIS 33 (1993).

This section protects not only the “right-to-know,” but also the right to be present, to be heard, and to participate. State v. Vermont Emergency Board, 136 Vt. 506, 394 A.2d 1360, 1978 Vt. LEXIS 650 (1978).

Cure of violation.

When a school district’s board of directors entered into a separation agreement with its superintendent during an emergency executive session, any procedural violations of the open meeting law were effectively cured when the board met at its regularly scheduled public meeting and voted in open session to ratify and confirm the agreement. There was no statutory requirement that the board specifically disclose or discuss the underlying details at the public meeting. Katz v. S. Burlington Sch. Dist., 2009 VT 6, 185 Vt. 621, 970 A.2d 1226, 2009 Vt. LEXIS 8 (2009) (mem.).

Effect of noncompliance.

The remedy provision of the open meeting law, 1 V.S.A. § 314 , does not provide that actions taken in violation of the law are void; instead, 1 V.S.A. § 312(a) provides only that actions taken outside an open meeting, with one exception, are ineffective unless ratified in an open meeting. Once so ratified, such actions are effective and binding on the public body. Valley Realty & Development, Inc. v. Town of Hartford, 165 Vt. 463, 685 A.2d 292, 1996 Vt. LEXIS 93 (1996).

Notice of meeting.

Where a town conceded that it did not properly warn a meeting because it failed to post one of the notices required by statute, town and trial court erred in reasoning that a citizen could not be harmed because no formal action or decision was made at the meeting. Town of Brattleboro v. Garfield, 2006 VT 56, 180 Vt. 90, 904 A.2d 1157, 2006 Vt. LEXIS 140 (2006).

Public policy.

There was no merit to plaintiff’s claim that the confidentiality, nondisparagement, and severance-pay provisions of an agreement between a school district and its superintendent were void as against public policy and therefore could not have been ratified by the district’s board at an open meeting. The issue of confidentiality was essentially moot inasmuch as the board released the full text of the agreement and thus satisfied any public policy concerns regarding the right to disclosure; plaintiff’s vague allegation that the nondisparagement clause might prevent the superintendent from “blowing the whistle on the district’s corruption” was plainly insufficient to void the clause on public policy grounds; and his claim that public policy was violated by the expenditure of taxpayer money without explaining how and why the money was spent was simply a restatement of his rejected claim that a vote in open session failed to provide adequate discussion and disclosure of the agreement. Katz v. S. Burlington Sch. Dist., 2009 VT 6, 185 Vt. 621, 970 A.2d 1226, 2009 Vt. LEXIS 8 (2009) (mem.).

Review.

Grievance hearings against public bodies may not be conducted in executive session unless premature general public knowledge would clearly place the public body, or person involved, at a substantial disadvantage; in order to determine any disadvantage, the exercise of judgment on a case-by-case basis is inevitable. Trombley v. Bellows Falls Union High School District No. 27, 160 Vt. 101, 624 A.2d 857, 1993 Vt. LEXIS 33 (1993).

State agency.

The University of Vermont is a “state agency” within the meaning of this section. Sprague v. University of Vermont, 661 F. Supp. 1132, 1987 U.S. Dist. LEXIS 4721 (D. Vt. 1987).

Cited.

Cited in Rutland Cable T.V., Inc. v. City of Rutland, 122 Vt. 1, 163 A.2d 117, 1960 Vt. LEXIS 91 (1960); In re Central Vermont Public Service Corp., 135 Vt. 432, 378 A.2d 510, 1977 Vt. LEXIS 647 (1977); Animal Legal Defense Fund, Inc. v. Institutional Animal Care & Use Committee, 159 Vt. 133, 616 A.2d 224, 1992 Vt. LEXIS 117 (1992); Caledonian-Record Publishing Co., Inc. v. Vermont State College, 2003 VT 78, 175 Vt. 438, 833 A.2d 1273, 2003 Vt. LEXIS 266 (2003); Berlickij v. Town of Castleton, 327 F. Supp. 2d 371, 2004 U.S. Dist. LEXIS 12613 (D. Vt. 2004).

Law Reviews —

For article, “Issue in Vermont Law: Trustees and Servants’: Governmental Accountability in Early Vermont,” see 31 Vt. L. Rev. 857 (2007).

§ 313. Executive sessions.

  1. No public body may hold an executive session from which the public is excluded, except by the affirmative vote of two-thirds of its members present in the case of any public body of State government or of a majority of its members present in the case of any public body of a municipality or other political subdivision. A motion to go into executive session shall indicate the nature of the business of the executive session, and no other matter may be considered in the executive session. Such vote shall be taken in the course of an open meeting and the result of the vote recorded in the minutes. No formal or binding action shall be taken in executive session except for actions relating to the securing of real estate options under subdivision (2) of this subsection. Minutes of an executive session need not be taken, but if they are, the minutes shall, notwithstanding subsection 312(b) of this title, be exempt from public copying and inspection under the Public Records Act. A public body may not hold an executive session except to consider one or more of the following:
    1. after making a specific finding that premature general public knowledge would clearly place the public body or a person involved at a substantial disadvantage:
      1. contracts;
      2. labor relations agreements with employees;
      3. arbitration or mediation;
      4. grievances, other than tax grievances;
      5. pending or probable civil litigation or a prosecution, to which the public body is or may be a party;
      6. confidential attorney-client communications made for the purpose of providing professional legal services to the body;
    2. the negotiating or securing of real estate purchase or lease options;
    3. the appointment or employment or evaluation of a public officer or employee, provided that the public body shall make a final decision to hire or appoint a public officer or employee in an open meeting and shall explain the reasons for its final decision during the open meeting;
    4. a disciplinary or dismissal action against a public officer or employee; but nothing in this subsection shall be construed to impair the right of such officer or employee to a public hearing if formal charges are brought;
    5. a clear and imminent peril to the public safety;
    6. records exempt from the access to public records provisions of section 316 of this title; provided, however, that discussion of the exempt record shall not itself permit an extension of the executive session to the general subject to which the record pertains;
    7. the academic records or suspension or discipline of students;
    8. testimony from a person in a parole proceeding conducted by the Parole Board if public disclosure of the identity of the person could result in physical or other harm to the person;
    9. information relating to a pharmaceutical rebate or to supplemental rebate agreements, which is protected from disclosure by federal law or the terms and conditions required by the Centers for Medicare and Medicaid Services as a condition of rebate authorization under the Medicaid program, considered pursuant to 33 V.S.A. §§ 1998(f)(2) and 2002(c);
    10. security or emergency response measures, the disclosure of which could jeopardize public safety.
  2. Attendance in executive session shall be limited to members of the public body, and, in the discretion of the public body, its staff, clerical assistants and legal counsel, and persons who are subjects of the discussion or whose information is needed.
  3. The Senate and House of Representatives, in exercising the power to make their own rules conferred by Chapter II of the Vermont Constitution, shall be governed by the provisions of this section in regulating the admission of the public as provided in Chapter II, § 8 of the Constitution.

HISTORY: Amended 1973, No. 78 , § 2, eff. April 23, 1973; 1979, No. 151 (Adj. Sess.), § 3, eff. April 24, 1980; 1987, No. 256 (Adj. Sess.), §§ 3, 4; 1997, No. 148 (Adj. Sess.), § 65, eff. April 29, 1998; 2005, No. 71 , § 308a, eff. June 21, 2005; 2011, No. 59 , § 7; 2013, No. 143 (Adj. Sess.), § 3; 2015, No. 23 , § 1; 2017, No. 95 (Adj. Sess.), § 1, eff. April 11, 2018.

History

Source.

1957, No. 122 , § 3.

Amendments

—2017 (Adj. Sess.). Subdiv. (a)(10): Deleted “municipal or school” preceding “security”.

—2015. Subsection (a): Rewrote the fifth sentence.

—2013 (Adj. Sess.). Subsection (a): Deleted “described in section 312 of this title” following “No public body” at the beginning, and inserted “for” following “executive session except”.

Subdivision (a)(1): Amended generally.

Subdivision (a)(2): Inserted “or lease” preceding “options”.

Subdivisions (a)(3) and (6): Amended generally.

Subdivision (a)(10): Added.

—2011. Subdivision (a)(6): Substituted “section 317” for “subsection 317(b)” preceding “of this title”.

—2005. Subsection (a): Substituted “subsection” for “section” in the penultimate sentence of the introductory paragraph.

Subdivision (a)(9): Added.

—1997 (Adj. Sess.). Added subdiv. (a)(8), making a related punctuation change in subdiv. (a)(7).

—1987 (Adj. Sess.). Subsection (a): Inserted “public body of a” preceding “municipality” in the first sentence and substituted “an open” for “a public” following “course of” in the third sentence of the introductory paragraph, inserted “mediation” preceding “grievances, civil actions” in subdiv. (1) and deleted “at law” thereafter, substituted “this subsection” for “this act” in subdiv. (4), deleted former subdiv. (7), and redesignated former subdiv. (8) as present subdiv. (7).

Subsection (b): Deleted “board, commission or other” following “members of the”, inserted “and, in the discretion of the public body” preceding “its staff”, substituted “and” for “its” preceding “legal counsel”, and deleted “expert” preceding “information”.

—1979 (Adj. Sess.). Amended section generally.

—1973. Amended section generally.

ANNOTATIONS

Appointments.

Although defendant town’s selectboard and planning commission discussed the appointment of a zoning administrator during an executive session, the principal issue was the budgetary effect of having one individual serve as both the town manager and the zoning administrator and such a policy consideration was not permitted under 1 V.S.A. 313(a)(3) of Vermont’s Open Meeting Law. Berlickij v. Town of Castleton, 327 F. Supp. 2d 371, 2004 U.S. Dist. LEXIS 12613 (D. Vt. 2004), aff'd, 146 Fed. Appx. 533, 2005 U.S. App. LEXIS 19159 (2d Cir. 2005).

Construction.

The right of an agency to go into executive session to have a discussion about a confidential document does not mean that an agency’s failure to go into executive session automatically renders anything in the files of the members or distributed at the public meeting for consideration by the members subject to disclosure. 232511 Investments, Ltd. v. Town of Stowe Development Review Board, 2005 VT 59, 178 Vt. 590, 878 A.2d 282, 2005 Vt. LEXIS 143 (2005) (mem.).

The fact that matters may have been considered at executive sessions which are required under the Open Meeting Law to be considered only at public meetings does not convert those executive sessions into public meetings, but the members of the public body considering such matters may be liable under the penalty section of the Open Meeting Law. Rowe v. Brown, 157 Vt. 373, 599 A.2d 333, 1991 Vt. LEXIS 197 (1991).

Disciplinary action.

Because plaintiff made it clear that it really wanted access only to the minutes of disciplinary hearings, which would show the action of the hearing officer or panel, and the reason for the decision, in view of plaintiff’s position, it was not necessary to decide whether the Open Meeting Law required access to the hearings, or whether under the Open Meeting Law disciplinary proceedings before single hearing officers warrant different treatment from hearings before multi-member hearing panels. Caledonian-Record Publishing Co., Inc. v. Vermont State College, 2003 VT 78, 175 Vt. 438, 833 A.2d 1273, 2003 Vt. LEXIS 266 (2003).

Discussion of collective bargaining agreements.

Defendant town violated 1 V.S.A. 313(a)(1) of Vermont’s Open Meeting Law, when the selectboard held an executive session discussing the appointment of the town manager for the position of zoning administrator and the collective bargaining agreement, without showing that public knowledge of the issue would disadvantage the town, but while plaintiff public employee, the former town zoning administrator and assessor, had a First Amendment right not to be excluded from a forum that was generally held open to the public, violating the Open Meeting Law did not convert the executive session into a public forum. Berlickij v. Town of Castleton, 327 F. Supp. 2d 371, 2004 U.S. Dist. LEXIS 12613 (D. Vt. 2004), aff'd, 146 Fed. Appx. 533, 2005 U.S. App. LEXIS 19159 (2d Cir. 2005).

Grievance hearings.

Grievance hearings against public bodies may not be conducted in executive session unless premature general public knowledge would clearly place the public body, or person involved, at a substantial disadvantage; in order to determine any disadvantage, the exercise of judgment on a case-by-case basis is inevitable. Trombley v. Bellows Falls Union High School District No. 27, 160 Vt. 101, 624 A.2d 857, 1993 Vt. LEXIS 33 (1993).

Cited.

Cited in Rutland Cable T.V., Inc. v. City of Rutland, 122 Vt. 1, 163 A.2d 117, 1960 Vt. LEXIS 91 (1960); Sprague v. University of Vermont, 661 F. Supp. 1132, 1987 U.S. Dist. LEXIS 4721 (D. Vt. 1987).

Notes to Opinions

Constitutionality.

This section does not unconstitutionally abridge the rulemaking power of the General Assembly under Chapter II, section 6 of the state constitution. 1972-74 Vt. Op. Att'y Gen. 191.

Appointments.

While a senate committee does not finally approve an appointment, its recommendations as to appointments are in the form of motions or resolutions so that with respect to them, the vote under this section must be taken in open session. 1966-68 Vt. Op. Att'y Gen. 108.

Disciplinary action.

A member of the general public is not entitled as a matter of right to be present at a racing commission hearing which is reviewing a suspension order of a steward. 1962-64 Vt. Op. Att'y Gen. 356.

Public bodies.

Vermont state colleges board is a board within the terms of this section. 1962-64 Vt. Op. Att'y Gen. 427.

§ 314. Penalty and enforcement.

  1. A person who is a member of a public body and who knowingly and intentionally violates the provisions of this subchapter, a person who knowingly and intentionally violates the provisions of this subchapter on behalf or at the behest of a public body, or a person who knowingly and intentionally participates in the wrongful exclusion of any person or persons from any meeting subject to this subchapter shall be guilty of a misdemeanor and shall be fined not more than $500.00.
    1. Prior to instituting an action under subsection (c) of this section, the Attorney General or any person aggrieved by a violation of the provisions of this subchapter shall provide the public body written notice that alleges a specific violation of this subchapter and requests a specific cure of such violation. The public body will not be liable for attorney’s fees and litigation costs under subsection (d) of this section if it cures in fact a violation of this subchapter in accordance with the requirements of this subsection. (b) (1) Prior to instituting an action under subsection (c) of this section, the Attorney General or any person aggrieved by a violation of the provisions of this subchapter shall provide the public body written notice that alleges a specific violation of this subchapter and requests a specific cure of such violation. The public body will not be liable for attorney’s fees and litigation costs under subsection (d) of this section if it cures in fact a violation of this subchapter in accordance with the requirements of this subsection.
    2. Upon receipt of the written notice of alleged violation, the public body shall respond publicly to the alleged violation within 10 calendar days by:
      1. acknowledging the violation of this subchapter and stating an intent to cure the violation within 14 calendar days; or
      2. stating that the public body has determined that no violation has occurred and that no cure is necessary.
    3. Failure of a public body to respond to a written notice of alleged violation within 10 calendar days shall be treated as a denial of the violation for purposes of enforcement of the requirements of this subchapter.
    4. Within 14 calendar days after a public body acknowledges a violation under subdivision (2)(A) of this subsection, the public body shall cure the violation at an open meeting by:
      1. either ratifying, or declaring as void, any action taken at or resulting from:
        1. a meeting that was not noticed in accordance with subsection 312(c) of this title; or
        2. a meeting that a person or the public was wrongfully excluded from attending; or
        3. an executive session or portion thereof not authorized under subdivisions 313(a)(1)-(10) of this title; and
      2. adopting specific measures that actually prevent future violations.
  2. Following an acknowledgment or denial of a violation and, if applicable, following expiration of the 14-calendar-day cure period for public bodies acknowledging a violation, the Attorney General or any person aggrieved by a violation of the provisions of this subchapter may bring an action in the Civil Division of the Superior Court in the county in which the violation has taken place for appropriate injunctive relief or for a declaratory judgment. An action may be brought under this section no later than one year after the meeting at which the alleged violation occurred or to which the alleged violation relates. Except as to cases the court considers of greater importance, proceedings before the Civil Division of the Superior Court, as authorized by this section and appeals therefrom, take precedence on the docket over all cases and shall be assigned for hearing and trial or for argument at the earliest practicable date and expedited in every way.
  3. The court shall assess against a public body found to have violated the requirements of this subchapter reasonable attorney’s fees and other litigation costs reasonably incurred in any case under this subchapter in which the complainant has substantially prevailed, unless the court finds that:
      1. the public body had a reasonable basis in fact and law for its position; and (1) (A) the public body had a reasonable basis in fact and law for its position; and
      2. the public body acted in good faith. In determining whether a public body acted in good faith, the court shall consider, among other factors, whether the public body responded to a notice of an alleged violation of this subchapter in a timely manner under subsection (b) of this section; or
    1. the public body cured the violation in accordance with subsection (b) of this section.

HISTORY: Amended 1979, No. 151 (Adj. Sess.), § 4, eff. April 24, 1980; 1987, No. 256 (Adj. Sess.), § 5; 2013, No. 143 (Adj. Sess.), § 4; 2015, No. 129 (Adj. Sess.), § 2, eff. May 24, 2016; 2017, No. 113 (Adj. Sess.), § 1.

History

Source.

1957, No. 122 , § 4.

Amendments

—2017 (Adj. Sess.). Subsec. (a): Substituted “subject to this subchapter” for “for which provision is herein made” preceding “shall be guilty”.

—2015 (Adj. Sess.). Subdiv. (b)(2) and (b)(3): Substituted “10 calendar days” for “seven business days”.

Subdiv. (b)(4)(A): Deleted “a meeting in violation of this subchapter” following “resulting from” and added subdivs. (i)-(iii).

—2013 (Adj. Sess.). Section amended generally.

—1987 (Adj. Sess.). Added “and enforcement” in the section catchline, designated the existing provisions of the section as subsec. (a), and added subsec. (b).

—1979 (Adj. Sess.). Inserted “is a member of a public body and who knowingly and intentionally” preceding “violates,” “who knowingly and intentionally” preceding “participates,” and “shall be guilty of a misdemeanor and” preceding “shall be fined”.

Effective date and applicability of 2013 (Adj. Sess.) amendment. 2013, No. 143 (Adj. Sess.), § 6 provides: “This act shall take effect on July 1, 2014. However, a person who violates 1 V.S.A. § 312(b)(2) as amended by this act (requirement to post minutes to website, if any) shall not be subject to prosecution for such violation pursuant to 1 V.S.A. § 314(a) in connection with any meeting that occurs before July 1, 2015.”

ANNOTATIONS

Construction.

The fact that matters may have been considered at executive sessions which are required under the Open Meeting Law to be considered only at public meetings does not convert those executive sessions into public meetings, but the members of the public body considering such matters may be liable under this section. Rowe v. Brown, 157 Vt. 373, 599 A.2d 333, 1991 Vt. LEXIS 197 (1991).

The enforcement provisions of the Open Meeting Law allow the attorney general or any person aggrieved by a violation of the provisions of the law to seek injunctive or declaratory relief. Rowe v. Brown, 157 Vt. 373, 599 A.2d 333, 1991 Vt. LEXIS 197 (1991).

Ratification of acts.

If a public body fails to comply with the cure provision of the Open Meeting Law, it is not precluded from ratifying acts taken in violation of the statute to ensure they are effective and binding. Here, even though a selectboard and a planning board failed to comply with the cure provision, they ratified the letter in question at subsequent open meetings. In re Acorn Energy Solar 2, LLC, 2021 VT 3, — Vt. —, 251 A.3d 899, 2021 Vt. LEXIS 5 (Vt. 2021).

Relief.

Although defendant town violated 1 V.S.A. 313(a)(1) of Vermont’s Open Meeting Law when the selectboard held an executive session discussing the appointment of the town manager for the position of zoning administrator and the collective bargaining agreement, without showing that public knowledge of the issue would disadvantage the town, there had been no showing of continuing Open Meeting Law violations and since plaintiff former town zoning administrator and assessor was no longer employed by the town and would not suffer damages unique to her if the town violated the Open Meeting Law, and since injunctive relief would merely order that the town comply with the law and the court presumed the town would comply with that obligation with or without a court order, the court therefore declined to order injunctive relief under 1 V.S.A. 314(b). Berlickij v. Town of Castleton, 327 F. Supp. 2d 371, 2004 U.S. Dist. LEXIS 12613 (D. Vt. 2004), aff'd, 146 Fed. Appx. 533, 2005 U.S. App. LEXIS 19159 (2d Cir. 2005).

This section does not provide that actions taken in violation of the law are void; instead, 1 V.S.A. § 312(a) provides only that actions taken outside an open meeting, with one exception, are ineffective unless ratified in an open meeting. Once so ratified, such actions are effective and binding on the public body. Valley Realty & Development, Inc. v. Town of Hartford, 165 Vt. 463, 685 A.2d 292, 1996 Vt. LEXIS 93 (1996).

Plaintiffs bringing a private right of action under the open meetings law must make some showing of injury to obtain relief. Trombley v. Bellows Falls Union High School District No. 27, 160 Vt. 101, 624 A.2d 857, 1993 Vt. LEXIS 33 (1993).

On appeal of claim for violation of Open Meeting Law, where plaintiff failed to request injunctive or declaratory relief on appeal, even though that relief was available by statute, the issue was deemed waived. Rowe v. Brown, 157 Vt. 373, 599 A.2d 333, 1991 Vt. LEXIS 197 (1991).

Standing.

Although appellant, as a member of the public body that he alleged violated the Open Meeting Law, could qualify as “any person aggrieved” entitled to seek enforcement of the law in the wake of the public body’s refusal to recognize, and correct, the alleged violation, his complaint did not allege injuries that were sufficient to confer standing under the law, for his allegations were of speculative injuries arising from the potential exclusion of unknown members of the public. He provided no evidence that a member of the public was actually denied access to the meeting, or was deterred from attending it, therefore violating his right to an open meeting as a member of a public body. Severson v. City of Burlington, 2019 VT 41, 210 Vt. 365, 215 A.3d 102, 2019 Vt. LEXIS 81 (2019).

Because the interest of a member of a public body in that body’s compliance with the Open Meeting Law is as significant as that of any other member of the public, members of a public body have a cognizable interest in enforcement of the law. Severson v. City of Burlington, 2019 VT 41, 210 Vt. 365, 215 A.3d 102, 2019 Vt. LEXIS 81 (2019).

Former administrator’s damages claims and request for reinstatement and back pay were dismissed against the town and its officials, as they had legislative immunity; claims for declaratory and injunctive relief and for damages against the town on First Amendment, retaliation, and open-meetings claims were not dismissed, as the administrator might show standing to sue from exclusion of the administrator and the public from secret meetings. Berlickij v. Town of Castleton, 248 F. Supp. 2d 335, 2003 U.S. Dist. LEXIS 3455 (D. Vt. 2003).

Cited.

Cited in State v. Vermont Emergency Board, 136 Vt. 506, 394 A.2d 1360, 1978 Vt. LEXIS 650 (1978).

Subchapter 3. Access to Public Records

History

Legislative intent. 2017, No. 166 (Adj. Sess.), § 4 provides: “(a) In Sec. 3 of this act [which amended 1 V.S.A. § 317 ], the repeal and reenactment provision added in 1 V.S.A. § 317 (e) shall apply only to Public Records Act exemptions that are enacted, reenacted, or substantively amended in legislation introduced in the General Assembly in 2019 or later.

“(b) In rearranging the text of existing law in 1 V.S.A. § 318 (b) -(c) within Sec. 5 of this act [which amends 1 V.S.A. § 318 ], the General Assembly intends to make the text more organized and clear, and does not intend to effect any substantive changes through the rearrangement of existing text.”

ANNOTATIONS

Attorney work-product privilege.

Superior court order compelling the production of documents concerning which attorney work-product privilege had been claimed was reversed and remanded for consideration of the status of each document consistent with the holding that the work-product exemption is incorporated into this subchapter. Killington, Ltd. v. Lash, 153 Vt. 628, 572 A.2d 1368, 1990 Vt. LEXIS 26 (1990), limited, Trombley v. Bellows Falls Union High Sch. Dist. No. 27, 160 Vt. 101, 624 A.2d 857, 1993 Vt. LEXIS 33 (1993).

Balance of interests.

This subchapter was intended to mirror the constitutional right of access to, inter alia, information relating to the activities of law enforcement officers and to information concerning crime in the community; the reach of this right to access is determined by balancing the interest in disclosure with the state interest in protecting the public from criminal activity, prosecuting those who commit crimes, and protecting the privacy rights of individual citizens. Caledonian-Record Publishing Co. v. Walton, 154 Vt. 15, 573 A.2d 296, 1990 Vt. LEXIS 15 (1990).

The common law gives the right to access to arrest records and provision of this subchapter concerning records dealing with the detection and investigation of crime and records reflecting initial arrest should be interpreted consistent with the common law policy of access. Caledonian-Record Publishing Co. v. Walton, 154 Vt. 15, 573 A.2d 296, 1990 Vt. LEXIS 15 (1990).

Executive privilege.

In the absence of a demonstration that information sought under this subchapter is necessary as evidence in a criminal or civil trial, a prima facie claim of executive privilege enjoys a rebuttable presumption over an asserted interest in disclosure based solely on the statute. Killington, Ltd. v. Lash, 153 Vt. 628, 572 A.2d 1368, 1990 Vt. LEXIS 26 (1990), limited, Trombley v. Bellows Falls Union High Sch. Dist. No. 27, 160 Vt. 101, 624 A.2d 857, 1993 Vt. LEXIS 33 (1993).

University of Vermont.

Institutional Animal Care and Use Committee of University of Vermont is subject to mandates of Public Records Act. Animal Legal Defense Fund, Inc. v. Institutional Animal Care & Use Committee, 159 Vt. 133, 616 A.2d 224, 1992 Vt. LEXIS 117 (1992).

Cited.

Cited in Doe v. Salmon, 135 Vt. 443, 378 A.2d 512, 1977 Vt. LEXIS 649 (1977); Finberg v. Murnane, 159 Vt. 431, 623 A.2d 979, 1992 Vt. LEXIS 211 (1992).

§ 315. Statement of policy; short title.

  1. It is the policy of this subchapter to provide for free and open examination of records consistent with Chapter I, Article 6 of the Vermont Constitution. Officers of government are trustees and servants of the people and it is in the public interest to enable any person to review and criticize their decisions even though such examination may cause inconvenience or embarrassment. All people, however, have a right to privacy in their personal and economic pursuits, which ought to be protected unless specific information is needed to review the action of a governmental officer. Consistent with these principles, the General Assembly hereby declares that certain public records shall be made available to any person as hereinafter provided. To that end, the provisions of this subchapter shall be liberally construed to implement this policy, and the burden of proof shall be on the public agency to sustain its action.
  2. The General Assembly finds that public records are essential to the administration of State and local government. Public records contain information that allows government programs to function, provides officials with a basis for making decisions, and ensures continuity with past operations. Public records document the legal responsibilities of government, help protect the rights of citizens, and provide citizens a means of monitoring government programs and measuring the performance of public officials. Public records provide documentation for the functioning of government and for the retrospective analysis of the development of Vermont government and the impact of programs on citizens.
  3. This subchapter may be known and cited as the Public Records Act or the PRA.

HISTORY: Added 1975, No. 231 (Adj. Sess.), § 1; amended 2011, No. 59 , § 1; 2015, No. 29 , § 1; 2017, No. 166 (Adj. Sess.), § 2.

History

Amendments

—2017 (Adj. Sess.). Added subsec. (b) and redesignated former subsec. (b) as present subsec. (c).

—2015. Added “short title” in the section heading, added the subsection (a) designation, and added subsec. (b).

—2011. Substituted “to implement this policy, and the burden of proof shall be on the public agency to sustain its action” for “with the view towards carrying out the above declaration of public policy” following “construed”.

ANNOTATIONS

Construction.

This subchapter is to be construed liberally. Trombley v. Bellows Falls Union High School District No. 27, 160 Vt. 101, 624 A.2d 857, 1993 Vt. LEXIS 33 (1993).

Unless an exception applies, the right of access under this subchapter extends to grievance decisions and related documents against a public body. Trombley v. Bellows Falls Union High School District No. 27, 160 Vt. 101, 624 A.2d 857, 1993 Vt. LEXIS 33 (1993).

This subchapter is to be construed liberally; policy considerations clearly favor the right of access to public documents and public records, and under this policy exceptions should be construed strictly against the custodians of the records and any doubts should be resolved in favor of disclosure. Finberg v. Murnane, 159 Vt. 431, 623 A.2d 979, 1992 Vt. LEXIS 211 (1992).

There is nothing personal or private about the fact that a person or business is subject to a business gross receipts tax; in most cases, that fact is obvious from the nature of the business. Finberg v. Murnane, 159 Vt. 431, 623 A.2d 979, 1992 Vt. LEXIS 211 (1992).

Motive is irrelevant to the right of access under this subchapter. Finberg v. Murnane, 159 Vt. 431, 623 A.2d 979, 1992 Vt. LEXIS 211 (1992).

Particular cases.

Where plaintiff specifically sought specified communications to or from individual state employees or officials regardless of whether the records were located on private or state accounts, the Office of the Attorney General’s obligation to conduct a reasonable search included asking those individual employees or officials to provide any public records stored in their private accounts that were responsive to plaintiff’s request. Toensing v. Att'y Gen. of Vt., 2017 VT 99, 206 Vt. 1, 178 A.3d 1000, 2017 Vt. LEXIS 122 (2017).

In an action under the Vermont Access to Public Records Act where plaintiff sought specified communications regardless of whether they were on private or state accounts, if, in addition to searching its own records as it had done, the Office of the Attorney General (AGO) had policies in place to minimize the use of personal accounts to conduct agency business, provided the specified employees and officials adequate guidance or training as to the distinction between public and nonpublic records, asked them to provide to the AGO any responsive public records in their custody or control, received a response and brief explanation of their manner of searching and segregating public and nonpublic records, and disclosed any nonexempt public records provided, its search would be adequate. Toensing v. Att'y Gen. of Vt., 2017 VT 99, 206 Vt. 1, 178 A.3d 1000, 2017 Vt. LEXIS 122 (2017).

In an action under the Public Records Act (PRA), the trial court erred in allowing a newspaper to review in camera numerous nonpublic records that depicted possible child pornography, notwithstanding the trial court’s conclusion that public release of these images was not proper. The trial court identified no legal basis for this ruling, and there was no support for this approach in the PRA. Herald v. City of Rutland, 2012 VT 26, 191 Vt. 387, 48 A.3d 568, 2012 Vt. LEXIS 25 (2012).

Relationship to other laws.

Doctrine of separation of powers decrees that no branch of government should step on the toes of another. Accordingly, policy decisions made by the court do not apply to other branches of government, including executive agencies; as such, the Vermont Rules for Public Access to Court Records do not create, by law, a confidential exemption to the Access to Public Records Act (PRA), such that agencies need not disclose information in their possession and control otherwise subject to the PRA. Oblak v. Univ. of Vt. Police Servs., 2019 VT 56, 210 Vt. 550, 217 A.3d 946, 2019 Vt. LEXIS 109 (2019).

Relationship to other proceedings.

Express, overarching goal of the Vermont Access to Public Records Act of ensuring public access to review and criticize the performance of public officials, even though such examination may cause inconvenience or embarrassment, plainly must take precedence over preserving electoral “purity” or stability. Price v. Town of Fairlee, 2011 VT 48, 190 Vt. 66, 26 A.3d 26, 2011 Vt. LEXIS 47 (2011).

Elections statute permits—but does not require—the destruction of ballots and tally sheets after the expiration of the preservation period; thus, in the absence of a clear statutory provision or purpose requiring that these election materials remain under seal if not destroyed, the Vermont Supreme Court is constrained to construe the provision narrowly to permit the disclosure promoted by the Vermont Access to Public Records Act. There is no contrary intent in the few specific statutes authorizing the unsealing of ballots in certain limited circumstances, such as where a container is damaged, or in the provisions for disclosure of other election materials, such as “spoiled” ballots. Price v. Town of Fairlee, 2011 VT 48, 190 Vt. 66, 26 A.3d 26, 2011 Vt. LEXIS 47 (2011).

Vermont’s Access to Public Records Act is not intended as a device to delay ongoing litigation or to enlarge the scope of discovery beyond that already provided under the court rules. There was no basis to continue plaintiff’s traffic court case based on his public records suit. Shlansky v. City of Burlington, 2010 VT 90, 188 Vt. 470, 13 A.3d 1075, 2010 Vt. LEXIS 87 (2010).

Response to request.

In the absence of any evidence suggesting that an employee is conducting agency business through personal accounts, an agency responding to a request may reasonably rely on the representations of its employees. An agency’s search of its own records may take the form of individual employees or officials searching their paper or digital files in their agency account or office, providing responsive records to the custodian of records, and representing that their search is complete. Toensing v. Att'y Gen. of Vt., 2017 VT 99, 206 Vt. 1, 178 A.3d 1000, 2017 Vt. LEXIS 122 (2017).

Defendants’ itemized list of documents withheld in response to plaintiff’s request for “any and all documents concerning the setting of city speed or traffic ordinances” was not deficient. Plaintiff made a generalized request for documents related to the setting of city speed and traffic ordinances, and defendants complied with this request by directing plaintiff to sections of the city’s code available to the general public on the city’s website; this general information adequately responded to plaintiff’s very general request. Shlansky v. City of Burlington, 2010 VT 90, 188 Vt. 470, 13 A.3d 1075, 2010 Vt. LEXIS 87 (2010).

Cited.

Cited in Welch v. Seery, 138 Vt. 126, 411 A.2d 1351, 1980 Vt. LEXIS 1039 (1980); Sprague v. University of Vermont, 661 F. Supp. 1132, 1987 U.S. Dist. LEXIS 4721 (D. Vt. 1987); Lucas v. Hahn, 162 Vt. 456, 648 A.2d 839, 1994 Vt. LEXIS 91 (1994); New England Coalition for Energy Efficiency & Environment v. Office of Governor, 164 Vt. 337, 670 A.2d 815, 1995 Vt. LEXIS 123 (1995); The Burlington Free Press v. University of Vermont, 172 Vt. 303, 779 A.2d 60, 2001 Vt. LEXIS 184 (2001).

§ 316. Access to public records and documents.

  1. Any person may inspect or copy any public record of a public agency, as follows:
    1. For any agency, board, department, commission, committee, branch, instrumentality, or authority of the State, a person may inspect a public record on any day other than a Saturday, Sunday, or a legal holiday, between the hours of nine o’clock and 12 o’clock in the forenoon and between one o’clock and four o’clock in the afternoon.
    2. For any agency, board, committee, department, instrumentality, commission, or authority of a political subdivision of the State, a person may inspect a public record during customary business hours.
  2. If copying equipment maintained for use by a public agency is used by the agency to copy the public record or document requested, the agency may charge and collect from the person requesting the copy the actual cost of providing the copy. The agency may also charge and collect from the person making the request, the costs associated with mailing or transmitting the record by facsimile or other electronic means. Nothing in this section shall exempt any person from paying fees otherwise established by law for obtaining copies of public records or documents, but if such fee is established for the copy, no additional costs or fees shall be charged.
  3. Unless otherwise provided by law, in the following instances an agency may also charge and collect the cost of staff time associated with complying with a request for a copy of a public record: (1) the time directly involved in complying with the request exceeds 30 minutes; (2) the agency agrees to create a public record; or (3) the agency agrees to provide the public record in a nonstandard format and the time directly involved in complying with the request exceeds 30 minutes. The agency may require that requests subject to staff time charges under this subsection be made in writing and that all charges be paid, in whole or in part, prior to delivery of the copies. Upon request, the agency shall provide an estimate of the charge.
  4. The Secretary of State, after consultation with the Secretary of Administration, shall establish the actual cost of providing a copy of a public record that may be charged by State agencies. The Secretary shall also establish the amount that may be charged for staff time, when such a charge is authorized under this section. To determine “actual cost,” the Secretary shall consider the following only: the cost of the paper or the electronic media onto which a public record is copied, a prorated amount for maintenance and replacement of the machine or equipment used to copy the record, and any utility charges directly associated with copying a record. The Secretary of State shall adopt, by rule, a uniform schedule of public record charges for State agencies.
  5. After public hearing, the legislative body of a political subdivision shall establish actual cost charges for copies of public records. The legislative body shall also establish the amount that may be charged for staff time, when such a charge is authorized under this section. To determine actual cost charges, the legislative body shall use the same factors used by the Secretary of State. If a legislative body fails to establish a uniform schedule of charges, the charges for that political subdivision shall be the uniform schedule of charges established by the Secretary of State until the local legislative body establishes such a schedule. A schedule of public records charges shall be posted in prominent locations in the town offices.
  6. State agencies shall provide receipts for all monies received under this section. Notwithstanding any provision of law to the contrary, a State agency may retain monies collected under this section to the extent such charges represent the actual cost incurred to provide copies under this subchapter. Amounts collected by a State agency under this section for the cost of staff time associated with providing copies shall be deposited in the General Fund, unless another disposition or use of revenues received by that agency is specifically authorized by law. Charges collected under this section shall be deposited in the agency’s operating account or the General Fund, as appropriate, on a monthly basis or whenever the amount totals $100.00, whichever occurs first.
  7. A public agency having the equipment necessary to copy its public records shall utilize its equipment to produce copies. If the public agency does not have such equipment, nothing in this section shall be construed to require the public agency to provide or arrange for copying service, to use or permit the use of copying equipment other than its own, to permit operation of its copying equipment by other than its own personnel, to permit removal of the public record by the requesting person for purposes of copying, or to make its own personnel available for making handwritten or typed copies of the public record or document requested.
  8. Standard formats for copies of public records shall be as follows: for copies in paper form, a photocopy of a paper public record or a hard copy print-out of a public record maintained in electronic form; for copies in electronic form, the format in which the record is maintained. Any format other than the formats described in this subsection is a nonstandard format.
  9. If an agency maintains public records in an electronic format, nonexempt public records shall be available for copying in either the standard electronic format or the standard paper format, as designated by the party requesting the records. An agency may, but is not required to, provide copies of public records in a nonstandard format, to create a public record, or to convert paper public records to electronic format.
  10. A public agency may make reasonable rules to prevent disruption of operations, to preserve the security of public records or documents, and to protect them from damage.
  11. Information concerning facilities and sites for the treatment, storage, and disposal of hazardous waste shall be made available to the public under this subchapter in substantially the same manner and to the same degree as such information is made available under the Resource Conservation and Recovery Act of 1976, as amended, 42 U.S.C. chapter 82, subchapter 3, and the Federal Freedom of Information Act, 5 U.S.C. section 552 et seq. In the event of a conflict between the provisions of this subchapter and the cited federal laws, federal law shall govern.

HISTORY: Added 1975, No. 231 (Adj. Sess.), § 1; amended 1987, No. 85 , § 5, eff. June 9, 1987; 1995, No. 159 (Adj. Sess.), § 1; 2003, No. 158 (Adj. Sess.), § 4; 2011, No. 59 , § 2.

History

Amendments

—2011. Subsection (a): Deleted “or document” following “record” and inserted “, as follows” following “agency”.

Subdivision (a)(1): Added the subdiv. designation; inserted “For any agency, board, department, commission, committee, branch, instrumentality, or authority of the state, a person may inspect a public record” preceding “on” and deleted “provided, however, if the public agency is not regularly open to the public during those hours, inspection or copying may be made” following “afternoon”.

Subdivision (a)(2): Added the subdiv. designation; inserted “For any agency, board, department, instrumentality, commission, or authority of the state, a person may inspect a public record” preceding “during” and substituted “business” for “office” preceding “hours”.

Subsection (c): Substituted “Unless otherwise provided by law, in” for “In” at the beginning of the subsection.

—2003 (Adj. Sess.). Subsection (i): Inserted “all” following “format”; “except the data, records, or documents used by a town to develop the information required by section 4152 of Title 32” following “records” and added the present third sentence.

—1995 (Adj. Sess.) Rewrote the first sentence and added the second sentence of subsec. (b), added new subsecs. (c)-(f), redesignated former subsec. (c) as subsec. (g) and rewrote that subsection, added subsecs. (h) and (i), and redesignated former subsecs. (d)-(f) as subsecs. (j) and (k), respectively.

—1987. Subsection (e): Added.

Expiration of amendments to subsection (i). 2003, No. 158 (Adj. Sess.) § 6, as amended by 2005, No. 71 , § 54c and 2005, No. 162 (Adj. Sess.), § 4a, provides that the amendments to subsection (i) as amended by Sec. 4 of that act, shall expire on June 30, 2007 and, upon that date, the language of subsection (i) shall revert to the language that existed before the effective date of that act.

Extension of sunset. 2003, No. 158 (Adj. Sess.) § 6, as amended by 2005, No. 71 , § 54c and 2005, No. 162 (Adj. Sess.), § 4a, provides: “This act shall expire on June 30, 2007, and sections of the Vermont Statutes Annotated which are amended by this act shall revert to the language in effect prior to the effective date of this act.”

ANNOTATIONS

Applicability.

Issues concerning public access to judicial case records should be decided pursuant to the Rules for Public Access to Court Records (PACR Rules), rather than the Public Records Act. Under the PACR Rules, all case records are public records presumptively subject to public disclosure unless an exception applies. In re VSP-TK / 1-16-18 Shooting, 2019 VT 47, 210 Vt. 435, 217 A.3d 560, 2019 Vt. LEXIS 92 (2019).

Charges for requests.

Plain language of the statute governing access to public records separates requests to copy from requests to inspect, and the section only authorizes charges for staff time associated with requests for copies — not requests to inspect. Thus, a police department could not charge for staff time spent in complying with a request to inspect, even when the police department would have to create a second, redacted version of the requested material in order to comply with the inspection request. Doyle v. City of Burlington Police Dep't, 2019 VT 66, 211 Vt. 10, 219 A.3d 326, 2019 Vt. LEXIS 120 (2019).

Construction generally.

Motive is irrelevant to the right of access under this subchapter. Finberg v. Murnane, 159 Vt. 431, 623 A.2d 979, 1992 Vt. LEXIS 211 (1992).

Construction with other law.

Section 104 of Title 23, providing that commissioner of motor vehicles shall furnish certified copies of records for fees stated therein, being specific, governed as against subsection (b) of this section, providing that one requesting a copy of a public record may be charged the cost of providing the copy, so that commissioner had to provide only certified copies at the statutory fee and did not have to provide uncertified copies at cost; and the fee schedule, having been enacted after this section, was the latest expression of the legislative will. Riffon v. Conway, 138 Vt. 344, 415 A.2d 241, 1980 Vt. LEXIS 1220 (1980), (Decided under prior law).

Public record or document.

As there is no requirement that a town clerk must keep for the public a record of the filings made or certified copies prepared, the fees collected, and the amount retained by the clerk as compensation, there is no public record or document compiling such information and subsection (a) of this section, providing that an individual may inspect any public record or document of a public agency, is not a basis for requiring clerk to disclose the amount of fees she keeps as compensation. Welch v. Seery, 138 Vt. 126, 411 A.2d 1351, 1980 Vt. LEXIS 1039 (1980).

Cited.

Cited in Sprague v. University of Vermont, 661 F. Supp. 1132, 1987 U.S. Dist. LEXIS 4721 (D. Vt. 1987); Animal Legal Defense Fund, Inc. v. Institutional Animal Care & Use Committee, 159 Vt. 133, 616 A.2d 224, 1992 Vt. LEXIS 117 (1992); Trombley v. Bellows Falls Union High School District No. 27, 160 Vt. 101, 624 A.2d 857, 1993 Vt. LEXIS 33 (1993); Lucas v. Hahn, 162 Vt. 456, 648 A.2d 839, 1994 Vt. LEXIS 91 (1994); Bianchi v. Lorenz, 166 Vt. 555, 701 A.2d 1037, 1997 Vt. LEXIS 180 (1997); Herald Ass'n, Inc. v. Dean, 174 Vt. 350, 816 A.2d 469, 2002 Vt. LEXIS 318 (2002).

§ 317. Definitions; public agency; public records and documents; exemptions.

  1. As used in this subchapter:
    1. “Business day” means a day that a public agency is open to provide services.
    2. “Public agency” or “agency” means any agency, board, department, commission, committee, branch, instrumentality, or authority of the State or any agency, board, committee, department, branch, instrumentality, commission, or authority of any political subdivision of the State.
  2. As used in this subchapter, “public record” or “public document” means any written or recorded information, regardless of physical form or characteristics, which is produced or acquired in the course of public agency business. Individual salaries and benefits of and salary schedules relating to elected or appointed officials and employees of public agencies shall not be exempt from public inspection and copying.
  3. The following public records are exempt from public inspection and copying:
    1. Records that by law are designated confidential or by a similar term.
    2. Records that by law may only be disclosed to specifically designated persons.
    3. Records that, if made public pursuant to this subchapter, would cause the custodian to violate duly adopted standards of ethics or conduct for any profession regulated by the State.
    4. Records that, if made public pursuant to this subchapter, would cause the custodian to violate any statutory or common law privilege other than the common law deliberative process privilege as it applies to the General Assembly and the Executive Branch agencies of the State of Vermont.
      1. Records dealing with the detection and investigation of crime, but only to the extent that the production of such records: (5) (A) Records dealing with the detection and investigation of crime, but only to the extent that the production of such records:
        1. could reasonably be expected to interfere with enforcement proceedings;
        2. would deprive a person of a right to a fair trial or an impartial adjudication;
        3. could reasonably be expected to constitute an unwarranted invasion of personal privacy;
        4. could reasonably be expected to disclose the identity of a confidential source, including a state, local, or foreign agency or authority or any private institution that furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source;
        5. would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecution if such disclosure could reasonably be expected to risk circumvention of the law;
        6. could reasonably be expected to endanger the life or physical safety of any individual.
      2. Notwithstanding subdivision (A) of this subdivision (5), records relating to management and direction of a law enforcement agency; records reflecting the initial arrest of a person, including any ticket, citation, or complaint issued for a traffic violation, as that term is defined in 23 V.S.A. § 2302 ; and records reflecting the charge of a person shall be public.
      3. It is the intent of the General Assembly that in construing subdivision (A) of this subdivision (5), the courts of this State will be guided by the construction of similar terms contained in 5 U.S.C. § 552(b) (7) (Freedom of Information Act) by the courts of the United States.
      4. It is the intent of the General Assembly that, consistent with the manner in which courts have interpreted subdivision (A) of this subdivision (5), a public agency shall not reveal information that could be used to facilitate the commission of a crime or the identity of a private individual who is a witness to or victim of a crime, unless withholding the identity or information would conceal government wrongdoing. A record shall not be withheld in its entirety because it contains identities or information that have been redacted pursuant to this subdivision.
    5. A tax return and related documents, correspondence, and certain types of substantiating forms that include the same type of information as in the tax return itself filed with or maintained by the Vermont Department of Taxes or submitted by a person to any public agency in connection with agency business.
    6. Personal documents relating to an individual, including information in any files maintained to hire, evaluate, promote, or discipline any employee of a public agency; information in any files relating to personal finances; medical or psychological facts concerning any individual or corporation; provided, however, that all information in personnel files of an individual employee of any public agency shall be made available to that individual employee or his or her designated representative.
    7. Test questions, scoring keys, and other examination instruments or data used to administer a license, employment, or academic examination.
    8. Trade secrets, meaning confidential business records or information, including any formulae, plan, pattern, process, tool, mechanism, compound, procedure, production data, or compilation of information that is not patented, which a commercial concern makes efforts that are reasonable under the circumstances to keep secret, and which gives its user or owner an opportunity to obtain business advantage over competitors who do not know it or use it, except that the disclosures required by 18 V.S.A. § 4632 are not exempt under this subdivision.
    9. Lists of names compiled or obtained by a public agency when disclosure would violate a person’s right to privacy or produce public or private gain; provided, however, that this section does not apply to lists that are by law made available to the public, or to lists of professional or occupational licensees.
    10. Student records, including records of a home study student; provided, however, that such records shall be made available upon request under the provisions of the Federal Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g , as may be amended.
    11. Records concerning formulation of policy where such would constitute a clearly unwarranted invasion of personal privacy if disclosed.
    12. Information pertaining to the location of real or personal property for public agency purposes prior to public announcement of the project and information pertaining to appraisals or purchase price of real or personal property for public purposes prior to the formal award of contracts thereof.
    13. Records that are relevant to litigation to which the public agency is a party of record, provided all such matters shall be available to the public after ruled discoverable by the court before which the litigation is pending, but in any event upon final termination of the litigation.
    14. Records relating specifically to negotiation of contracts, including collective bargaining agreements with public employees.
    15. Any voluntary information provided by an individual, corporation, organization, partnership, association, trustee, estate, or any other entity in the State of Vermont, which has been gathered prior to the enactment of this subchapter, shall not be considered a public document.
    16. Records of interdepartmental and intradepartmental communications in any county, city, town, village, town school district, incorporated school district, union school district, consolidated water district, fire district, or any other political subdivision of the State to the extent that they cover other than primarily factual materials and are preliminary to any determination of policy or action or precede the presentation of the budget at a meeting held in accordance with section 312 of this title.
    17. Records of the Office of Internal Investigation of the Department of Public Safety, except as provided in 20 V.S.A. § 1923 .
    18. Records relating to the identity of library patrons or the identity of library patrons in regard to library patron registration records and patron transaction records in accordance with 22 V.S.A. chapter 4.
    19. Information that would reveal the location of archaeological sites and underwater historic properties, except as provided in 22 V.S.A. § 761 .
    20. Lists of names compiled or obtained by Vermont Life magazine for the purpose of developing and maintaining a subscription list, which list may be sold or rented in the sole discretion of Vermont Life magazine, provided that such discretion is exercised in furtherance of that magazine’s continued financial viability and is exercised pursuant to specific guidelines adopted by the editor of the magazine.
    21. [Repealed.]
    22. Any data, records, or information produced or acquired by or on behalf of faculty, staff, employees, or students of the University of Vermont or the Vermont State Colleges in the conduct of study, research, or creative efforts on medical, scientific, technical, scholarly, or artistic matters, whether such activities are sponsored alone by the institution or in conjunction with a governmental body or private entity, until such data, records, or information are published, disclosed in an issued patent, or publicly released by the institution or its authorized agents. This subdivision applies to, but is not limited to, research notes and laboratory notebooks, lecture notes, manuscripts, creative works, correspondence, research proposals and agreements, methodologies, protocols, and the identities of or any personally identifiable information about participants in research. This subdivision shall not exempt records, other than research protocols, produced or acquired by an institutional animal care and use committee regarding the committee’s compliance with State law or federal law regarding or regulating animal care.
    23. Records of, or internal materials prepared for, the deliberations of any public agency acting in a judicial or quasi-judicial capacity.
    24. Passwords, access codes, user identifications, security procedures, and similar information, the disclosure of which would threaten the safety of persons or the security of public property.
    25. Information and records provided to the Department of Financial Regulation by a person for the purposes of having the Department assist that person in resolving a dispute with any person regulated by the Department, and any information or records provided by a person in connection with the dispute.
    26. Information and records provided to the Department of Public Service or the Public Utility Commission by an individual for the purposes of having the Department or Commission assist that individual in resolving a dispute with a utility regulated by the Department or Commission, or by the utility or any other person in connection with the individual’s dispute.
    27. Records of, and internal materials prepared for, independent external reviews of health care service decisions pursuant to 8 V.S.A. § 4089f and of mental health care service decisions pursuant to 8 V.S.A. § 4089a .
    28. The records in the custody of the Secretary of State of a participant in the Address Confidentiality Program described in 15 V.S.A. chapter 21, subchapter 3, except as provided in that subchapter.
    29. All State-controlled database structures and application code, including the vermontvacation.com website and Travel Planner application, which are known only to certain State departments engaging in marketing activities and which give the State an opportunity to obtain a marketing advantage over any other state, regional, or local governmental or nonprofit quasi-governmental entity, or private sector entity, unless any such State department engaging in marketing activities determines that the license or other voluntary disclosure of such materials is in the State’s best interests.
    30. Records of a registered voter’s month and day of birth, driver’s license or nondriver identification number, telephone number, e-mail address, and the last four digits of his or her Social Security number contained in a voter registration application or the statewide voter checklist established under 17 V.S.A. § 2154 or the failure to register to vote under 17 V.S.A. § 2145a .
    31. With respect to publicly owned, managed, or leased structures, and only to the extent that release of information contained in the record would present a substantial likelihood of jeopardizing the safety of persons or the security of public property, final building plans, and as-built plans, including drafts of security systems within a facility, that depict the internal layout and structural elements of buildings, facilities, infrastructures, systems, or other structures owned, operated, or leased by an agency before, on, or after the effective date of this provision; emergency evacuation, escape, or other emergency response plans that have not been published for public use; and vulnerability assessments, operation, and security manuals, plans, and security codes. For purposes of this subdivision, “system” shall include electrical, heating, ventilation, air conditioning, telecommunication, elevator, and security systems. Information made exempt by this subdivision may be disclosed to another governmental entity if disclosure is necessary for the receiving entity to perform its duties and responsibilities; to a licensed architect, engineer, or contractor who is bidding on or performing work on or related to buildings, facilities, infrastructures, systems, or other structures owned, operated, or leased by the State. The entities or persons receiving such information shall maintain the exempt status of the information. Such information may also be disclosed by order of a court of competent jurisdiction, which may impose protective conditions on the release of such information as it deems appropriate. Nothing in this subdivision shall preclude or limit the right of the General Assembly or its committees to examine such information in carrying out its responsibilities or to subpoena such information. In exercising the exemption set forth in this subdivision and denying access to information requested, the custodian of the information shall articulate the grounds for the denial.
    32. The account numbers for bank, debit, charge, and credit cards held by an agency or its employees on behalf of the agency.
    33. Affidavits of income and assets as provided in 15 V.S.A. § 662 and Rule 4 of the Vermont Rules for Family Proceedings.
    34. [Repealed.]
    35. Anti-fraud plans and summaries submitted for the purposes of complying with 8 V.S.A. § 4750 .
    36. Records provided to the Department of Health pursuant to the Patient Safety Surveillance and Improvement System established by 18 V.S.A. chapter 43a.
    37. Records that include prescription information containing data that could be used to identify a prescriber, except that the records shall be made available upon request for medical research, consistent with and for purposes expressed in 18 V.S.A. § 4622 or 9410, 18 V.S.A. chapter 84 or 84A, and for other law enforcement activities.
    38. Records held by the Agency of Human Services or the Department of Financial Regulation, which include prescription information containing patient-identifiable data, that could be used to identify a patient.
    39. Records of genealogy provided in an application or in support of an application for tribal recognition pursuant to chapter 23 of this title.
    40. Documents reviewed by the Victims Compensation Board for purposes of approving an application for compensation pursuant to 13 V.S.A. chapter 167, except as provided by 13 V.S.A. §§ 5358a(b) and 7043(c).
    41. Except as otherwise provided by law, information that could be used to identify a complainant who alleges that a public agency, a public employee or official, or a person providing goods or services to a public agency under contract has engaged in a violation of law, or in waste, fraud, or abuse of authority, or in an act creating a threat to health or safety, unless the complainant consents to disclosure of his or her identity.
    42. Records relating to a regulated utility’s cybersecurity program, assessments, and plans, including all reports, summaries, compilations, analyses, notes, or other cybersecurity information.
    1. On or before December 1, 2015, the Office of Legislative Counsel shall compile lists of all Public Records Act exemptions found in the Vermont Statutes Annotated, one of which shall be arranged by subject area, and the other in order by title and section number. (d) (1) On or before December 1, 2015, the Office of Legislative Counsel shall compile lists of all Public Records Act exemptions found in the Vermont Statutes Annotated, one of which shall be arranged by subject area, and the other in order by title and section number.
    2. On or before December 1, 2019, the Office of Legislative Counsel shall compile a list arranged in order by title and section number of all Public Records Act exemptions found in the Vermont Statutes Annotated that are repealed or are narrowed in scope on or after January 1, 2019. The list shall indicate:
      1. the effective date of the repeal or narrowing in scope of the exemption; and
      2. whether or not records produced or acquired during the period of applicability of the repealed or narrowed exemption are to remain exempt following the repeal or narrowing in scope.
    3. The Office of Legislative Counsel shall update the lists required under subdivisions (1) and (2) of this subsection no less often than every two years. In compiling and updating these lists, the Office of Legislative Counsel shall consult with the Office of Attorney General. The lists and any updates thereto shall be posted in a prominent location on the websites of the General Assembly, the Secretary of State’s Office, the Attorney General’s Office, and the State Library and shall be sent to the Vermont League of Cities and Towns.
    1. For any exemption to the Public Records Act enacted or substantively amended in legislation introduced in the General Assembly in 2019 or later, in the fifth year after the effective date of the enactment, reenactment, or substantive amendment of the exemption, the exemption shall be repealed on July 1 of that fifth year except if the General Assembly reenacts the exemption prior to July 1 of the fifth year or if the law otherwise requires. (e) (1) For any exemption to the Public Records Act enacted or substantively amended in legislation introduced in the General Assembly in 2019 or later, in the fifth year after the effective date of the enactment, reenactment, or substantive amendment of the exemption, the exemption shall be repealed on July 1 of that fifth year except if the General Assembly reenacts the exemption prior to July 1 of the fifth year or if the law otherwise requires.
    2. Legislation that enacts, reenacts, or substantively amends an exemption to the Public Records Act shall explicitly provide for its repeal on July 1 of the fifth year after the effective date of the exemption unless the legislation specifically provides otherwise.
  4. Unless otherwise provided by law, a record produced or acquired during the period of applicability of an exemption that is subsequently repealed or narrowed in scope shall, if exempt during that period, remain exempt following the repeal or narrowing in scope of the exemption.

HISTORY: Added 1975, No. 231 (Adj. Sess.), § 1; amended 1977, No. 202 (Adj. Sess.); 1979, No. 156 (Adj. Sess.), § 6; 1981, No. 227 (Adj. Sess.), § 4; 1989, No. 28 , § 2; 1989, No. 136 (Adj. Sess.), § 1; 1995, No. 46 , §§ 23, 58; 1995, No. 159 (Adj. Sess.), § 2; No. 167 (Adj. Sess.), § 29; No. 182 (Adj. Sess.), § 21, eff. May 22, 1996; No. 180 (Adj. Sess.), § 38; No. 190 (Adj. Sess.), § 1(a); 1997, No. 159 (Adj. Sess.), § 12, eff. April 29, 1998; 1999, No. 134 (Adj. Sess.), § 3, eff. Jan. 1, 2001; 2001, No. 28 , § 9, eff. May 21, 2001; 2001, No. 76 (Adj. Sess.), § 3, eff. Feb. 19, 2002; No. 78 (Adj. Sess.), § 1, eff. Apr. 3, 2002; 2003, No. 59 , § 1, eff. Jan. 1, 2006; 2003, No. 63 , § 29, eff. June 11, 2003; 2003, No. 107 (Adj. Sess.), § 14; 2003, No. 146 (Adj. Sess.), § 6, eff. Jan. 1, 2005; 2003, No. 158 (Adj. Sess.), § 2; 2003, No. 159 (Adj. Sess.), § 12; 2005, No. 132 (Adj. Sess.), § 1; 2005, No. 179 (Adj. Sess.), § 3; 2005, No. 215 (Adj. Sess.), § 326; 2007, No. 80 , § 18; 2007, No. 110 (Adj. Sess.), § 3; 2007, No. 129 (Adj. Sess.), § 2; 2009, No. 59 , § 5; 2009, No. 107 (Adj. Sess.), § 5, eff. May 14, 2010; 2011, No. 59 , § 3; 2011, No. 78 (Adj. Sess.), § 2, eff. April 2, 2012; 2011, No. 145 (Adj. Sess.), § 8, eff. May 15, 2012; 2013, No. 70 , § 1; 2013, No. 129 (Adj. Sess.), § 1; 2013, No. 194 (Adj. Sess.), § 1, eff. June 17, 2014; 2015, No. 23 , § 2; 2015, No. 29 , §§ 2, 3, 6, 23; 2015, No. 30 , § 3, eff. May 26, 2015; 2015, No. 80 (Adj. Sess.), § 6, eff. July 1, 2017; 2017, No. 50 , § 5; 2017, No. 128 (Adj. Sess.), § 2, eff. May 16, 2018; 2017, No. 166 (Adj. Sess.), § 3, eff. Jan. 1, 2019; 2019, No. 31 , § 16; 2021, No. 54 , § 2.

History

Revision note

—2020. In subdivs. (d)(1), (d)(2), and (d)(3), substituted “Office of Legislative Counsel” for “Office of Legislative Council” in accordance with 2019, No. 144 (Adj. Sess.), § 12(1).

—2015. Effect of repeal of subdivision (c)(22). 2015, No. 23 , § 3 provides: “Sec. 2 of this act repeals 1 V.S.A. § 317(c)(22) , which related to documents filed, received, or maintained by the Agency of Commerce and Community Development with regard to administration of 32 V.S.A. chapter 151, subchapters 11C and 11D (new jobs tax credit; manufacturer’s tax credit). 32 V.S.A. chapter 151, subchapters 11C and 11D were repealed in 2006, and thus the exemption at 1 V.S.A. § 317(c)(22) is no longer needed. However, if a public agency retains custody of records that qualified as exempt under the former 1 V.S.A. § 317(c)(22), these records shall remain exempt from public inspection and copying after its repeal.”

—2014. In subdivision (c)(23), restored “, but is not limited to,” following “applies to”, as this phrase was inadvertently deleted in the 2013 cumulative supplement.

—2013 (Adj. Sess.). During the 2013 Adjourned Session subdivision (c)(41) section was amended by Act No. 129 and by Act No. 194, resulting in two versions of subdivision (c)(41). In order to reflect all of the changes intended by the Legislature, the text of Acts No. 129 and 194 were merged to arrive at a single version of subdivision (c)(41). The changes which each of the amendments made are described in amendment notes set out below.

—2013. In subdivision (c)(15), deleted “but not limited to” following “including” in accordance with 2013, No. 5 , § 4.

—2006. Subdivision (c)(36), as added by 2005, No. 215 (Adj. Sess.), § 326, was redesignated as subdivision (c)(37) to avoid conflict with subdivision (c)(36) as added by 2005, No. 179 (Adj. Sess.), § 3.

—2005. In subdiv. (c)(34), changed the term “Family Procedures” to “Family Proceedings” to cross-reference correctly the “Vermont Rules for Family Proceedings”.

—2003 (Adj. Sess.). Acts 146 and 159 both purported to add subdivision (c)(34); however, the version in Act 159 is the one set out here as the latter-enacted and more-broadly-worded version.

Subdivision (c)(34) related to Social Security numbers was redesignated as subdivision (c)(35) to avoid numerical duplication.

—2003. Subdivisions (32), relating to state building plans, and (33), relating to bank cards and security codes, adopted as subdivisions (31) and (32), were redesignated to conform to V.S.A. style.

Substituted “subchapter” for “act” in subdiv. (c)(16) to conform reference to V.S.A. style.

Pursuant to 1995, No. 182 (Adj. Sess.), § 27b, eff. May 22, 1996, subdivision (23), as added by Act No. 167 (Adj. Sess.), § 29, was incorporated in subsection (c) and redesignated as subdiv. (26) of this section and subdivision (c)(23), as added by Act No. 182 (Adj. Sess.), § 21, was redesignated as subdiv. (c)(27) of this section to avoid conflict with existing subdivs. (c)(23)-(25).

1997, No. 159 (Adj. Sess.), § 12, purported to add subdiv. (b)(28) to this section. However, subdiv. (b)(28) was redesignated as subdiv. (c)(28), to conform to the numbering scheme of this section.

Substituted “4089f” for “4089d” at the end of subdiv. (c)(28) because of the redesignation of the cited section.

Amendments

—2021. Subdiv. (c)(43): Added.

—2019. Subdiv. (c)(27): Inserted “or the Public Utility Commission” following “Department of Public Service” and twice inserted “or Commission” following “Department”.

—2017 (Adj. Sess.). Subdiv. (c)(31): Act No. 128 inserted “telephone number” preceding “e-mail address”, substituted “a voter registration” for “an” preceding “application”, and deleted “to the statewide voter checklist” following “application”.

Subsec. (d): Amended generally by Act No. 166.

Subsecs. (e), (f): Added by Act No. 166.

—2017. Subdiv. (c)(31): Substituted “driver’s” for “motor vehicle operator’s”; inserted “or nondriver identification” preceding “number”; inserted “e-mail address,” following “number”; and substituted “his or her” for “the applicant’s”.

—2015 (Adj. Sess.). Subdiv. (c)(31): Added “or the failure to register to vote under 17 V.S.A. § 2145a ” following “ 17 V.S.A. § 2154 ”.

—2015. Subdivisions (c)(11), (20), (30), (36), (38), and (40): Amended generally by Act 23.

Subdivision (c)(22): Repealed by Act 23.

Subdivisions (c)(9), (23), and (26): Amended generally by Act 29.

Subdivision (c)(31): Amended generally by Act 30.

Subsection (d): Added by Act 29.

—2013 (Adj. Sess.). Subdivision (c)(41): Act 129 substituted “Victims” for “Victim’s” preceding “Compensation Board”.

Subdivision (c)(41): Act 194 substituted “ 13 V.S.A. §§ 5358a(b) and 7043(c)” for “ 13 V.S.A. §§ 5360 and 7043(c)” at the end.

Subdivision (c)(42): Added by Act 129.

—2013. Subdivision (c)(5): Amended generally.

—2011 (Adj. Sess.). Subdivision (c)(26), (c)(36) and (c)(39): Substituted “department of financial regulation” for “department of banking, insurance, securities, and health care administration”.

Subdivision (c)(40): Substituted “records” for “Records” at the beginning of the subsection.

Subdivision (c)(41): Added.

—2011. Subsection (a): Rewrote the subsection; added the subdiv. (1) and (2) designations; added the definition for “Business day” as subdiv. (1) and substituted “Public” for “public” preceding “agency” in subdiv. (2).

Subdivision (c)(5): Inserted “that” preceding “records”; deleted “and” following “agency”; inserted “including any ticket, citation, or complaint issued for a traffic violation, as that term is defined in 23 V.S.A. § 2303 ” following “person”, “records reflecting” preceding “the charge” and “of a person” following “charge”.

—2009 (Adj. Sess.) Subdivision (c)(40): Added.

—2009. Subdivision (c)(9): Deleted “but not limited to” following “including” and inserted “, except that the disclosures required by section 4632 of Title 18 shall not be included in this subdivision” following “use it”.

—2007 (Adj. Sess.) Subsection (b): Act No. 110 substituted “any written or recorded information, regardless of physical form or characteristics, which is produced or acquired in the course of public agency business” for “all papers, documents, machine readable materials, or any other written or recorded matters, regardless of their physical form or characteristics, that are produced or acquired in the course of agency business” in the first sentence.

Subdivision (c)(19): Act No. 129 substituted “to library patron registration records and patron transaction records in accordance with chapter 4 of Title 22” for “to the circulation of library materials”.

—2007. Subdivisions (c)(38), (39): Added.

—2005 (Adj. Sess.). Subdivision (c)(4): Act No. 132 added “other than the common law deliberative process privilege as it applies to the General Assembly and the executive branch agencies of the state of Vermont”.

Subdivision (c)(34): Act No. 215 made a minor change in punctuation.

Subdivision (c)(36): Added by Act Nos. 179 and 215.

—2003 (Adj. Sess.) Subsection (b): Act 158 inserted “computer databases” following “machine readable materials”.

Subdivision (c)(11): Act 107 inserted “including records of a home study student” following “student records”, and inserted “or agencies” following “educational institutions”.

Subdivision (c)(34): Added by Acts 146, 158, and 159.

—2003. Subdivision (c)(31): Added by No. 59, § 1.

Subdivisions (c)(32), (33): Added by No. 63, § 29.

—2001 (Adj. Sess.) Subdivision (c)(28): Inserted “and of mental health care service decisions pursuant to 8 V.S.A. § 4089a ” at the end.

Subdivision (c)(30): Added.

—2001. Subdivision (c)(29): Substituted “records in the custody of the secretary of state” for “address”, and deleted “certified” preceding “participant” and “during the period of certification” following “in that subchapter”.

—1999 (Adj. Sess.). Subdivision (c)(29): Added.

—1997 (Adj. Sess.). Subdivision (c)(28): Added.

—1995 (Adj. Sess.) Act No. 159 amended the section generally.

Act No. 167 added subdiv. (23).

Act No. 180 substituted “department of banking, insurance, securities, and health care administration” for “department of banking, insurance, and securities” in subdiv. (c)(26).

Act No. 182 added subdiv. (b)(23).

Act No. 190 substituted “agency of commerce and community development” for “agency of development and community affairs” in subdiv. (c)(22).

—1995. Subsection (b): Added subdivs. (21) and (22).

—1989 (Adj. Sess.). Subdivision (b)(20): Added.

—1989. Subdivision (b)(19): Added.

—1981 (Adj. Sess.) Subdivision (b)(10): Added “or to lists of professional or occupational licensees” following “available to the public”.

—1979 (Adj. Sess.) Subdivision (b)(18): Added.

—1977 (Adj. Sess.) Subsection (a): Amended generally.

Subdivision (b)(17): Added.

Effective date of amendments—

2001 (Adj. Sess.). 2001, No. 76 (Adj. Sess.), § 4, provided: “This act [which amended this section and sections 4089a and 4089b of Title 8] shall take effect upon passage (March 15, 2002). Secs. 2 and 3 of this act [which amended this section and section 4089a of Title 8] are intended to clarify existing law, and to be remedial in nature”.

Public records exemptions; legislative intent. 2003, No. 63 , § 30, provides: “The general assembly has amended 1 V.S.A. § 317(c) to include subdivision (31) to address security concerns”.

Expiration of amendments to subsection (b) and subdivision (c)(35). 2003, No. 158 (Adj. Sess.) § 6, as amended by 2005, No. 71 , § 54c and 2005, No. 162 (Adj. Sess.), § 4a, provides that the amendment to subsection (b) and the addition of subdivision (c)(35), as amended in § 2 of No. 158, shall expire on June 30, 2007 and, upon that date, the content of subsection (b) shall revert to the content that existed before the effective date of Act 158, and subdivision (35) is repealed.

Extension of sunset. 2003, No. 158 (Adj. Sess.) § 6, as amended by 2005, No. 71 , § 54c and 2005, No. 162 (Adj. Sess.), § 4a, provides: “This act shall expire on June 30, 2007, and sections of the Vermont Statutes Annotated which are amended by this act shall revert to the language in effect prior to the effective date of this act.”

Legislative council; list of public records act exemptions. 2011, No. 59 , § 12 provides: “The legislative council, under its statutory revision authority set forth in 2 V.S.A. § 421 , shall compile a list of all known Vermont statutory exemptions to the inspection and copying of public records under the public records act, 1 V.S.A. chapter 5, subchapter 3. Legislative council shall publish the list of exemptions compiled under this section as a statutory revision note to 1 V.S.A. § 317 and shall update the list as necessary.”

Public Records Act: 2021 List of Exemptions Note: Listed below are sections of the Vermont Statutes Annotated that could be asserted as an exemption to inspection or copying of a public record. Following each cited section is a short annotation summarizing the records to which the exemption applies. The annotations are not legally binding and are provided for reader convenience. The text of the statute should be reviewed prior to asserting a section listed below as an exemption. This list may not include all Public Records Act exemptions set forth in the Vermont Statutes Annotated.

Display Image

Click to view

FORM

Click to view

Click to view

Click to view

Click to view

Click to view

Click to view

Click to view

Click to view

Click to view

Click to view

Click to view

Click to view

Click to view

Legislative intent. 2017, No. 166 (Adj. Sess.), § 4 provides: “(a) In Sec. 3 of this act [which amended 1 V.S.A. § 317 ], the repeal and reenactment provision added in 1 V.S.A. § 317 (e) shall apply only to Public Records Act exemptions that are enacted, reenacted, or substantively amended in legislation introduced in the General Assembly in 2019 or later.”

ANNOTATIONS

Affidavits of probable cause.

Public had the right to access the affidavit of probable cause prepared by a university police force because it was an agency record that fell outside of the Vermont Rules for Public Access to Court Records and did not qualify as confidential under the Access to Public Records Act. Oblak v. Univ. of Vt. Police Servs., 2019 VT 56, 210 Vt. 550, 217 A.3d 946, 2019 Vt. LEXIS 109 (2019).

Prior to inspection by a court, affidavits of probable cause are agency records specially excluded from the definition of a public record by subdivision (b)(5) [now (c)(5)] of this section. State v. Tallman, 148 Vt. 465, 537 A.2d 422, 1987 Vt. LEXIS 549 (1987).

After it has been reviewed by a court, an affidavit of probable cause becomes a public document. State v. Tallman, 148 Vt. 465, 537 A.2d 422, 1987 Vt. LEXIS 549 (1987).

“Agency.”

Language of the Public Records Act is unambiguous: where the state contracts with a private entity to discharge the entirety of a fundamental and uniquely governmental obligation owed to its citizens, that entity acts as an instrumentality of the State. Human Rights Def. Ctr. v. Correct Care Solutions, 2021 VT 63, — Vt. —, 263 A.3d 1260, 2021 Vt. LEXIS 90 (Vt. 2021).

When for five years, a contractor was the sole means through which the constitutional imperative that the Department of Corrections provide healthcare to those it incarcerated was carried out, the contractor became an “instrumentality” of the state, and was thus a “public agency” subject to the disclosure obligations of the Public Records Act. Human Rights Def. Ctr. v. Correct Care Solutions, 2021 VT 63, — Vt. —, 263 A.3d 1260, 2021 Vt. LEXIS 90 (Vt. 2021).

“Public agency.”

There is no general “functional-equivalency” concept contained in the Vermont Public Records Act (PRA); although the court must construe the PRA liberally in favor of disclosure, the court cannot ignore its plain text. The definition of “public agency” contains no reference to functional equivalents but rather, sets forth a limited list of traditional, well-established forms in which government chooses to organize itself; to the extent that the legislature intended for the PRA to apply to a nongovernmental entity, that entity must qualify as one of these forms. McVeigh v. Vt. Sch. Bds. Ass'n, 2021 VT 86, — Vt. —, 266 A.3d 763, 2021 Vt. LEXIS 114 (Vt. 2021).

Determination of whether a particular entity is an “instrumentality” for purposes of the Vermont Public Records Act’s definition of “public agency” must be made on a case-by-case basis, looking at the facts surrounding the government’s relationship with that entity. The court declines to adopt a particular test for resolving this inquiry, though there may be significant overlap between the factors relevant to determining whether an entity is an “instrumentality” and the functional-equivalency tests adopted by Connecticut, Tennessee, and other courts in applying their public-records statutes; as Human Rights Defense Center instructs, however, the nature of the function carried out by the private entity must be a primary focus of the analysis. McVeigh v. Vt. Sch. Bds. Ass'n, 2021 VT 86, — Vt. —, 266 A.3d 763, 2021 Vt. LEXIS 114 (Vt. 2021).

Vermont School Boards Association was not an “instrumentality,” and thus was not a “public agency” subject to the Vermont Public Records Act, as it had not been delegated responsibility for performing a uniquely governmental function in that the association itself did not provide public education, but offered support to its member school boards by advocating for educational policy at the statewide level and by providing training, information, and advice to members; the fact that it had the power to appoint members to certain boards and commissions was not equivalent to delegating a uniquely governmental role. McVeigh v. Vt. Sch. Bds. Ass'n, 2021 VT 86, — Vt. —, 266 A.3d 763, 2021 Vt. LEXIS 114 (Vt. 2021).

“Agency.”

The office of the Governor is a “branch, instrumentality or authority of the state” for purposes of the Access to Public Records Act. Herald Ass'n, Inc. v. Dean, 174 Vt. 350, 816 A.2d 469, 2002 Vt. LEXIS 318 (2002).

The Governor is not exempt from the definition of “agency” under the Access to Public Records Act. Herald Ass'n, Inc. v. Dean, 174 Vt. 350, 816 A.2d 469, 2002 Vt. LEXIS 318 (2002).

Agency practice.

In relying on an exception to disclosure under this subchapter, an agency cannot discharge the burden to sustain its action by conclusory claims or pleadings; it must make a specific factual record necessary to support the exception claim. Trombley v. Bellows Falls Union High School District No. 27, 160 Vt. 101, 624 A.2d 857, 1993 Vt. LEXIS 33 (1993).

Attorney-client privilege.

In an action in which plaintiff sought disclosure of a letter sent to a town development review board from its attorney, the trial court erred in issuing a decision on summary judgment relying on the assumption that the letter was legal advice because the board’s request that prompted the letter was for legal advice; reversal and remand was required so that the court might view the evidence in camera and decide whether any part or all of the letter was legal advice within the meaning of the exemption. 232511 Investments, Ltd. v. Town of Stowe Development Review Board, 2005 VT 59, 178 Vt. 590, 878 A.2d 282, 2005 Vt. LEXIS 143 (2005) (mem.).

Construction.

The exceptions to disclosure are construed strictly against a custodian of the records, and courts resolve any doubt in favor of disclosure. In addition, the burden of demonstrating that an exception applies is on an agency seeking to avoid disclosure. Sawyer v. Spaulding, 2008 VT 63, 184 Vt. 545, 955 A.2d 532, 2008 Vt. LEXIS 61 (2008).

Exceptions to the strong policy favoring access to public documents and records are construed strictly against the custodians of records and any doubts are resolved in favor of disclosure. Wesco, Inc. v. Sorrell, 2004 VT 102, 177 Vt. 287, 865 A.2d 350, 2004 Vt. LEXIS 307 (2004).

The burden of showing that a record falls within an exception is on the agency seeking to avoid disclosure. Wesco, Inc. v. Sorrell, 2004 VT 102, 177 Vt. 287, 865 A.2d 350, 2004 Vt. LEXIS 307 (2004).

Exceptions to the general policy of disclosure under the Public Records Act are strictly construed against the custodians of records and any doubts are resolved in favor of disclosure. Springfield Terminal Railway Co. v. Agency of Transportation, 174 Vt. 341, 816 A.2d 448, 2002 Vt. LEXIS 315 (2002).

The burden of showing that a record falls within an exception is on the agency seeking to avoid disclosure; the agency meets that burden by making a specific factual showing and not merely by averring conclusory claims. Springfield Terminal Railway Co. v. Agency of Transportation, 174 Vt. 341, 816 A.2d 448, 2002 Vt. LEXIS 315 (2002).

Exceptions in this subchapter should be construed strictly against the custodians of the records and any doubts should be resolved in favor of disclosure. Trombley v. Bellows Falls Union High School District No. 27, 160 Vt. 101, 624 A.2d 857, 1993 Vt. LEXIS 33 (1993).

Motive is irrelevant to the right of access under this subchapter. Finberg v. Murnane, 159 Vt. 431, 623 A.2d 979, 1992 Vt. LEXIS 211 (1992).

This subchapter is to be construed liberally; policy considerations clearly favor the right of access to public documents and public records, and under this policy the exceptions should be construed strictly against the custodians of the records and any doubts should be resolved in favor of disclosure. Finberg v. Murnane, 159 Vt. 431, 623 A.2d 979, 1992 Vt. LEXIS 211 (1992).

A list of names and addresses is an existing public record subject to disclosure unless it fits within one of the exceptions itemized in this subchapter. Finberg v. Murnane, 159 Vt. 431, 623 A.2d 979, 1992 Vt. LEXIS 211 (1992).

Since records of students at the University of Vermont are exempt from disclosure under subdivision (b)(11) [now (c)(11)] of this section, the university is an “agency” as defined by subsection (a) of this section. Sprague v. University of Vermont, 661 F. Supp. 1132, 1987 U.S. Dist. LEXIS 4721 (D. Vt. 1987).

University of Vermont faculty member charged with forging student evaluations of her performance was entitled to access to those documents under subdivision (b)(7) [now (c)(7)] of this section. Sprague v. University of Vermont, 661 F. Supp. 1132, 1987 U.S. Dist. LEXIS 4721 (D. Vt. 1987).

Corporate financial information.

Internal, corporate financial information can be exempt from disclosure under the Public Records Act if that financial information qualifies as a “compilation of information” as defined by subdivision (c)(9) of this section. Springfield Terminal Railway Co. v. Agency of Transportation, 174 Vt. 341, 816 A.2d 448, 2002 Vt. LEXIS 315 (2002).

Data sought by plaintiff contained in the records submitted by closely-held corporations in response to requests for proposals that included balance sheets, cash flow statements, revenue histories, assets and liabilities, retained earnings, names of shippers, stockholder information, letters of reference from shippers, staff and supervision information, potential shippers, target commodities, and plans for the proposed freight service was generally private corporate information that gives its possessor a commercial advantage over others, thus making the information exempt from disclosure under subdivision (c)(9) of this section. Springfield Terminal Railway Co. v. Agency of Transportation, 174 Vt. 341, 816 A.2d 448, 2002 Vt. LEXIS 315 (2002).

Voluntary submission of financial information qualifying for protection under subdivision (c)(9) of this section does not waive that protection. Springfield Terminal Railway Co. v. Agency of Transportation, 174 Vt. 341, 816 A.2d 448, 2002 Vt. LEXIS 315 (2002).

Detection and investigation.

Determination of whether police have effected an arrest for purposes of the Public Records Act is a fact-dependent analysis. An investigative detention may become too intrusive to be classified as such, and may instead become the functional equivalent of a formal arrest. Galloway v. Town of Hartford, 2012 VT 61, 192 Vt. 171, 57 A.3d 684, 2012 Vt. LEXIS 66 (2012).

Court looks at the totality of the circumstances to determine if an investigative detention has crossed the line and become a de facto arrest for purposes of the Public Records Act; there is no bright-line rule to distinguish the two situations. The court considers a number of factors in determining whether a detention amounted to an arrest: the amount of force used by police, the need for such force, and the extent to which the individual’s freedom of movement was restrained, and in particular such factors as the number of agents involved, whether the target of the stop was suspected of being armed, the duration of the stop, and the physical treatment of the suspect, including whether or not handcuffs were used. Galloway v. Town of Hartford, 2012 VT 61, 192 Vt. 171, 57 A.3d 684, 2012 Vt. LEXIS 66 (2012).

Detention of a suspected burglar who turned out to be the homeowner was a de facto arrest for purposes of the Public Records Act; accordingly, the records relating to his initial detention were subject to disclosure. The homeowner was pepper-sprayed and struck repeatedly with a baton; his freedom of movement was entirely restrained for fifteen minutes; three officers handcuffed the homeowner and he was dragged down the stairs and out of his house and forced to sit handcuffed on the sidewalk; and only after fifteen minutes did the police decide there was no basis for criminal charges against the homeowner and remove the handcuffs. Galloway v. Town of Hartford, 2012 VT 61, 192 Vt. 171, 57 A.3d 684, 2012 Vt. LEXIS 66 (2012).

Under the plain language of the Public Records Act, records reflecting the initial arrest of a person shall be public. The courts must weigh competing interests in determining whether a record is public: the privacy interest of the person arrested, the public interest in encouraging transparent government as a foundation of a free democracy, and a separate public interest in ensuring that police can keep society safe are all factors courts must evaluate. Galloway v. Town of Hartford, 2012 VT 61, 192 Vt. 171, 57 A.3d 684, 2012 Vt. LEXIS 66 (2012).

With respect to the applicability of the Access to Public Records Act exemption for records “compiled in the course of a criminal or disciplinary investigation by any police or professional licensing agency,” as a threshold matter, the agency must prove and the trial court must find that the records sought deal with the detection and investigation of crime. Because this critical finding was absent, remand was required. Herald v. City of Rutland, 2012 VT 26, 191 Vt. 387, 48 A.3d 568, 2012 Vt. LEXIS 25 (2012).

Language of the Access to Public Records Act exemption for records “compiled in the course of a criminal or disciplinary investigation by any police or professional licensing agency” plainly requires that records deal with the detection and investigation of crime to fall within this exemption. Only when this requirement is satisfied can such records include those maintained on any individual or compiled in the course of a criminal or disciplinary investigation by any police or professional licensing agency. Herald v. City of Rutland, 2012 VT 26, 191 Vt. 387, 48 A.3d 568, 2012 Vt. LEXIS 25 (2012).

Access to Public Records Act exemption for records “compiled in the course of a criminal or disciplinary investigation by any police or professional licensing agency” recognizes that the police department, like any other public agency, might investigate and discipline its employees for workplace infractions that do not necessarily constitute criminal conduct. Other types of disciplinary investigations might be tied in with a criminal investigation, and the Legislature intended to exclude records involving the latter type, presumably to protect the integrity of the law enforcement and prosecutorial function. Herald v. City of Rutland, 2012 VT 26, 191 Vt. 387, 48 A.3d 568, 2012 Vt. LEXIS 25 (2012).

To the extent that the Access to Public Records Act’s exemption from disclosure for “records dealing with the detection and investigation of crime” exempted from disclosure the records relating to a criminal investigation sought here, the Legislature had determined that the principle embodied in Article 6 of the Vermont Constitution did not mandate disclosure. The Court would not second-guess that determination. Rutland Herald v. Vt. State Police, 2012 VT 24, 191 Vt. 357, 49 A.3d 91, 2012 Vt. LEXIS 23 (2012).

Vermont Supreme Court finds no support for the imposition of either a time-based limitation or a balancing test in the plain language of the exemption from disclosure for “records dealing with the detection and investigation of crime.” The language instead reflects the Legislature’s intent to permanently and categorically exempt all criminal investigatory records from public disclosure. Rutland Herald v. Vt. State Police, 2012 VT 24, 191 Vt. 357, 49 A.3d 91, 2012 Vt. LEXIS 23 (2012).

Vermont Supreme Court does not find the language used in the exemption from disclosure for “records dealing with the detection and investigation of crime” to be vague and potentially limitless; instead, the Court reads this provision to reflect the Legislature’s specific intent to permanently shield all records dealing with the detection and investigation of crime, including those maintained on any individual or compiled in the course of a criminal or disciplinary investigation by any police or professional licensing agency. The statute is broadly worded and it provides a categorical exemption for such records irrespective of their specific content; accordingly, it is not appropriate to read a balancing test into the statute. Rutland Herald v. Vt. State Police, 2012 VT 24, 191 Vt. 357, 49 A.3d 91, 2012 Vt. LEXIS 23 (2012).

Because the exemption from disclosure for “records dealing with the detection and investigation of crime” provided a record-based, rather than content-based, limitation, the Vermont Supreme Court rejected plaintiff’s argument that the trial court could release investigatory records but require redaction of information. Rutland Herald v. Vt. State Police, 2012 VT 24, 191 Vt. 357, 49 A.3d 91, 2012 Vt. LEXIS 23 (2012).

Exception in the exemption from disclosure for “records dealing with the detection and investigation of crime” is not information-based. There is no balancing process involved in the implementation of the exemption statute and no statutory standards a court can use to determine what information to disclose and what to redact; redaction does not apply. Rutland Herald v. Vt. State Police, 2012 VT 24, 191 Vt. 357, 49 A.3d 91, 2012 Vt. LEXIS 23 (2012).

Exemption from disclosure for “records dealing with the detection and investigation of crime” draws no distinction between those records that deal with a criminal investigation of a police officer and those involving a criminal investigation of other citizens. Rutland Herald v. Vt. State Police, 2012 VT 24, 191 Vt. 357, 49 A.3d 91, 2012 Vt. LEXIS 23 (2012).

Under the exemption from disclosure for “records dealing with the detection and investigation of crime,” a court does not engage in a content-based analysis of records once they have been determined to be “records dealing with the detection and investigation of crime.” Such records are wholly exempt from public access. Rutland Herald v. Vt. State Police, 2012 VT 24, 191 Vt. 357, 49 A.3d 91, 2012 Vt. LEXIS 23 (2012).

Trial court erred in dismissing plaintiff’s Access to Public Records Act (PRA) claims against a sheriff on the ground that police radio dispatch and unit logs were exempt from the PRA as records “dealing with the detection and investigation of crime.” Assuming that the records existed, the court could not discern from the record precisely what information they might contain. Bain v. Clark, 2012 VT 14, 191 Vt. 190, 44 A.3d 170, 2012 Vt. LEXIS 14 (2012).

Court cannot assume, consistent with the purpose of the Access to Public Records Act, that simply because the records at issue were generated by a law enforcement agency, they necessarily are records “dealing with the detection and investigation of crime.” To so hold would allow for a potentially limitless exemption. Bain v. Clark, 2012 VT 14, 191 Vt. 190, 44 A.3d 170, 2012 Vt. LEXIS 14 (2012).

Subdivision (b)(5) [now (c)(5)] of this section, exempting from public disclosure certain records dealing with the detection and investigation of crime, should be construed strictly against the custodians of the records and any doubts should be resolved in favor of disclosure. Caledonian-Record Publishing Co. v. Walton, 154 Vt. 15, 573 A.2d 296, 1990 Vt. LEXIS 15 (1990).

Arrest records are not records dealing with the investigation and detention of crime which are exempted from public disclosure, but rather are the product of such an investigation and subject to disclosure as public records. Caledonian-Record Publishing Co. v. Walton, 154 Vt. 15, 573 A.2d 296, 1990 Vt. LEXIS 15 (1990).

Citations, like arrest records, are public records which must be disclosed and are not included within the detection and investigation exemption of subdivision (b)(5) [now (c)(5)] of this section. Caledonian-Record Publishing Co. v. Walton, 154 Vt. 15, 573 A.2d 296, 1990 Vt. LEXIS 15 (1990).

Enforcement agencies may not refuse to disclose the names of persons cited on the basis that there is an ongoing investigation of crime. Caledonian-Record Publishing Co. v. Walton, 154 Vt. 15, 573 A.2d 296, 1990 Vt. LEXIS 15 (1990).

Disciplinary investigation.

Exception in subdivision (b)(5) [now (c)(5)] of this section for disciplinary investigation records of a professional licensing agency is an exception dealing with disclosure to the public generally, not disclosure in response to discovery in litigation, and the exception does not create a privilege. Douglas v. Windham Superior Court, 157 Vt. 34, 597 A.2d 774, 1991 Vt. LEXIS 152 (1991).

Executive privilege.

Under the common law executive privilege, documents reflecting communications in the course of the Governor’s decision-making and deliberative process may be withheld from the public to protect and facilitate the Governor’s consultative and decisional responsibilities. Herald Ass'n, Inc. v. Dean, 174 Vt. 350, 816 A.2d 469, 2002 Vt. LEXIS 318 (2002).

Documents covered by the common law executive privilege enjoy presumptive confidentiality, which can be overcome only by a showing that the requester has a need for the documents that outweighs the interest in confidentiality. Herald Ass'n, Inc. v. Dean, 174 Vt. 350, 816 A.2d 469, 2002 Vt. LEXIS 318 (2002).

In order to make a prima facie case of executive privilege in response to a request for documents, the executive must specifically identify the documents for which the privilege is claimed, and must explain why the documents are protected by the privilege. Herald Ass'n, Inc. v. Dean, 174 Vt. 350, 816 A.2d 469, 2002 Vt. LEXIS 318 (2002).

Information in the Governor’s daily schedule showing meetings or events unrelated to executive policy making or deliberations, including meetings and events related to the Governor’s consideration of a potential bid for President of the United States, was not sufficiently related to gubernatorial policymaking or deliberations to qualify for confidential treatment under the executive privilege and, accordingly, that information must be disclosed. Herald Ass'n, Inc. v. Dean, 174 Vt. 350, 816 A.2d 469, 2002 Vt. LEXIS 318 (2002).

Although the assertion of executive privilege over the Governor’s daily schedule in its entirety was too broad, the Governor was not required to disclose the entirety of his schedule immediately; on remand, if plaintiffs seek disclosure of additional information on meetings or events related to the Governor’s deliberations and policymaking, the Governor shall be afforded an opportunity to make a prima facie case, specific to those entries. Herald Ass'n, Inc. v. Dean, 174 Vt. 350, 816 A.2d 469, 2002 Vt. LEXIS 318 (2002).

A person seeking disclosure of documents concerning which an agency has made a prima facie case for executive privilege must first demonstrate why the need for the information outweighs the interest in confidentiality before obtaining a right to in camera inspection by the court; common law executive privilege was incorporated into the statute with its established burdens. Killington, Ltd. v. Lash, 153 Vt. 628, 572 A.2d 1368, 1990 Vt. LEXIS 26 (1990), limited, Trombley v. Bellows Falls Union High Sch. Dist. No. 27, 160 Vt. 101, 624 A.2d 857, 1993 Vt. LEXIS 33 (1993).

Superior court order for in camera review of requested documents, concerning which a claim of executive privilege was made, was remanded to allow plaintiff to meet its burden of showing necessity for the documents. Killington, Ltd. v. Lash, 153 Vt. 628, 572 A.2d 1368, 1990 Vt. LEXIS 26 (1990), limited, Trombley v. Bellows Falls Union High Sch. Dist. No. 27, 160 Vt. 101, 624 A.2d 857, 1993 Vt. LEXIS 33 (1993).

“List of names” exception.

Massachusetts attorney was entitled to certain financial records requested from the Treasurer of Vermont; attorney did not request a list of names and therefore her request was not exempt under the “list of names” exemption. The fact that the Treasurer would need to sort and compile information did not mean that the information requested amounted to “a list”. Sawyer v. Spaulding, 2008 VT 63, 184 Vt. 545, 955 A.2d 532, 2008 Vt. LEXIS 61 (2008).

Personal documents.

Records pertaining to police department employees who viewed and sent pornography on work computers while on duty did not fall under the “personal information” exemption from disclosure under the Public Records Act, and there was no basis to order the trial court to redact personally identifying information concerning the two employees in question. Any privacy interest of the employees was outweighed by the significant public interest in knowing how the police department supervised its employees and responded to allegations of misconduct, and redaction would cast suspicion over the whole department and minimize the hard work and dedication shown by the vast majority of the police department. Rutland Herald v. City of Rutland, 2013 VT 98, 195 Vt. 85, 84 A.3d 821, 2013 Vt. LEXIS 93 (2013).

Looking at the statutory scheme as a whole, it is apparent that the Legislature intended purely disciplinary investigations—those that do not deal with the detection and investigation of crime—to be evaluated under the “personal documents” exemption from the Access to Public Records Act, except to the extent such investigations may relate to the management and direction of a law enforcement agency and not to a specified individual employee under the exemption for records “compiled in the course of a criminal or disciplinary investigation by any police or professional licensing agency.” Herald v. City of Rutland, 2012 VT 26, 191 Vt. 387, 48 A.3d 568, 2012 Vt. LEXIS 25 (2012).

As to named individual employees, the personal documents exception to the Access to Public Records Act specifically encompasses information in any files maintained to discipline any employee of a public agency. This assumes, of course, that such disciplinary investigations do not involve records of the Office of Internal Investigation of the Department of Public Safety, which are specifically exempt from public view. Herald v. City of Rutland, 2012 VT 26, 191 Vt. 387, 48 A.3d 568, 2012 Vt. LEXIS 25 (2012).

With regard to disciplinary letters involving two city employees who were accused of viewing pornography at work, the trial court applied the personal records exemption to the Access to Public Records Act and concluded that the public interest in disclosure outweighed any privacy interest. A union failed to show that the trial court abused its discretion in concluding that the balance of interests favored disclosure of the documents, from which the employees’ names and suspension dates had been redacted. Herald v. City of Rutland, 2012 VT 26, 191 Vt. 387, 48 A.3d 568, 2012 Vt. LEXIS 25 (2012).

Based on its examination of an index and supporting affidavits summarizing the evaluation reports at issue, the trial court did not err in forgoing an in camera review to determine that the “personal document” exception applied to at least a portion of the documents. Kade v. Smith, 2006 VT 44, 180 Vt. 554, 904 A.2d 1080, 2006 Vt. LEXIS 143 (2006) (mem.).

Trial court erred in failing to examine performance evaluations in camera to determine the nexus, if any, between the public interest asserted and the records requested. Kade v. Smith, 2006 VT 44, 180 Vt. 554, 904 A.2d 1080, 2006 Vt. LEXIS 143 (2006) (mem.).

Trial court erred in denying plaintiff’s for certain documents in the custody of defendant Office of the Court Administrator (OCA) where it neglected to consider redaction as an alternative to nondisclosure, and failed to address the OCA’s claim that the personal records exemption applied to the documents. Norman v. Vt. Office of Court Administrator, 2004 VT 13, 176 Vt. 593, 844 A.2d 769, 2004 Vt. LEXIS 12 (2004).

The personal documents exception to this subchapter applies only to documents that reveal intimate details of a person’s life, including any information that might subject the person to embarrassment, harassment, disgrace, or loss of employment or friends. Trombley v. Bellows Falls Union High School District No. 27, 160 Vt. 101, 624 A.2d 857, 1993 Vt. LEXIS 33 (1993).

“Public record”.

Emails between a professor and third-party entities did not qualify as “public records.” While they were sent using the university’s server and were stored on that server, this was not dispositive; the emails related to the professor’s work on academic journals and advisory committees, not her work at the university or university-related matters; and while the university derived considerable benefits from the external work at issue here and spent public funds leveraging those benefits, the emails concerned the private workings of entities unaffiliated with the university and thus shed no light on how the government was conducting its business or spending taxpayer money. U.S. Right to Know v. Univ. of Vt., 2021 VT 33, — Vt. —, 255 A.3d 719, 2021 Vt. LEXIS 44 (Vt. 2021).

Vermont Access to Public Records Act’s definition of “public record” includes digital documents stored in private accounts, but it extends only to documents that otherwise meet the definition of public records. Toensing v. Att'y Gen. of Vt., 2017 VT 99, 206 Vt. 1, 178 A.3d 1000, 2017 Vt. LEXIS 122 (2017).

Records produced or acquired in the course of agency business are public records under the Vermont Access to Public Records Act, regardless of whether they are located in private accounts of state employees or officials or on the state system. Toensing v. Att'y Gen. of Vt., 2017 VT 99, 206 Vt. 1, 178 A.3d 1000, 2017 Vt. LEXIS 122 (2017).

Given the circumstances surrounding creation of the Governor’s daily schedule, and the essential role it plays in the day-to-day functioning of the Governor’s office, the calendar falls within the definition of a public record because it is “produced or acquired in the course of [the Governor’s] business.” Herald Ass'n, Inc. v. Dean, 174 Vt. 350, 816 A.2d 469, 2002 Vt. LEXIS 318 (2002).

The Governor’s daily schedule is not exempt from the definition of “public record” under the Access to Public Records Act on the basis that it is not a record of the Governor’s official acts. Herald Ass'n, Inc. v. Dean, 174 Vt. 350, 816 A.2d 469, 2002 Vt. LEXIS 318 (2002).

Records designated confidential by law.

Records made confidential “by law” are subject to the general rule that exceptions to the Public Records Act must be construed narrowly to implement the strong policy in favor of disclosure. Norman v. Vt. Office of Court Administrator, 2004 VT 13, 176 Vt. 593, 844 A.2d 769, 2004 Vt. LEXIS 12 (2004).

Trial court erroneously concluded that documents were entirely exempt from disclosure under the exception for “records which by law are designated confidential” where its finding was mistakenly based on the criminal expungement statute. Norman v. Vt. Office of Court Administrator, 2004 VT 13, 176 Vt. 593, 844 A.2d 769, 2004 Vt. LEXIS 12 (2004).

Records prepared for public agency deliberations.

Emails between district commissioners and the commission’s counsel, all of which concerned the basis for one district commission’s decision to disqualify itself from hearing an Act 250 application, fell within the plain language of the exemption from disclosure for “records of, or internal materials prepared for, the deliberations of any public agency acting in a judicial or quasi-judicial capacity.” The district commissions were public agencies that acted in a quasi-judicial capacity, and the documents were “records. .. of the deliberations” of the district commission. Rueger v. Natural Res. Bd., 2012 VT 33, 191 Vt. 429, 49 A.3d 112, 2012 Vt. LEXIS 29 (2012).

There is no dispute that district commissions are public agencies that act in a quasi-judicial capacity, as the commissions hear evidence and issue rulings in the manner of a court, and their decisions are subject to review by the Environmental Division. Their work satisfies an ordinary understanding of the term “quasi-judicial” for purposes of the exemption from disclosure for “records of, or internal materials prepared for, the deliberations of any public agency acting in a judicial or quasi-judicial capacity,” and it is also consistent with the definition of the term “quasi-judicial proceeding” under the Vermont Open Meetings Law. Rueger v. Natural Res. Bd., 2012 VT 33, 191 Vt. 429, 49 A.3d 112, 2012 Vt. LEXIS 29 (2012).

Email discussions between the members of a district commission and an assigned staff attorney as to whether a case should be transferred fit well within the plain meaning of the word “deliberations” under the exemption from disclosure for “records of, or internal materials prepared for, the deliberations of any public agency acting in a judicial or quasi-judicial capacity.” There could be no question, moreover, that the emails were “records” of such deliberations. Rueger v. Natural Res. Bd., 2012 VT 33, 191 Vt. 429, 49 A.3d 112, 2012 Vt. LEXIS 29 (2012).

Vermont Legislature has determined that all judicial or quasi-judicial “deliberations” are exempt from disclosure; it does not purport to incorporate a “deliberative process privilege” or distinguish between a quasi-judicial agency’s “working law” and other material. In any event, even assuming arguendo that the federal deliberative process doctrine was somehow incorporated into the exemption from disclosure for “records of, or internal materials prepared for, the deliberations of any public agency acting in a judicial or quasi-judicial capacity,” federal case law clearly recognizes that an agency’s “pre-decisional communications” are exempt from public view. Rueger v. Natural Res. Bd., 2012 VT 33, 191 Vt. 429, 49 A.3d 112, 2012 Vt. LEXIS 29 (2012).

Plain language of the exemption from disclosure for “records of, or internal materials prepared for, the deliberations of any public agency acting in a judicial or quasi-judicial capacity” does not call for a balancing test, and there are no grounds for reading such test into the statute. The language used in the exemption is not vague and potentially limitless; rather, the statute reflects the Legislature’s intent to categorically exempt all records of, or internal materials prepared for, the deliberations of any public agency acting in a judicial or quasi-judicial capacity. Rueger v. Natural Res. Bd., 2012 VT 33, 191 Vt. 429, 49 A.3d 112, 2012 Vt. LEXIS 29 (2012).

Whether or not a claim of executive privilege will be honored is a question always contingent on a balancing of the interests of confidentiality against those of disclosure; the fact that a balancing may be inherent in implementing the common law executive privilege has no bearing on the court’s interpretation of the exemption from disclosure for “records of, or internal materials prepared for, the deliberations of any public agency acting in a judicial or quasi-judicial capacity.” It is evident from the statute’s plain language that, in enacting the exemption, the Legislature evaluated the competing interests and concluded that a blanket exemption on quasi-judicial deliberations was appropriate. Rueger v. Natural Res. Bd., 2012 VT 33, 191 Vt. 429, 49 A.3d 112, 2012 Vt. LEXIS 29 (2012).

There was no support for plaintiffs’ assertion that defendants waived their right to the exemption from disclosure for “records of, or internal materials prepared for, the deliberations of any public agency acting in a judicial or quasi-judicial capacity” because agency officials stated the reasons for their decision to a resident and to a newspaper reporter. Rueger v. Natural Res. Bd., 2012 VT 33, 191 Vt. 429, 49 A.3d 112, 2012 Vt. LEXIS 29 (2012).

Records relevant to litigation.

Identity and motive of the requestor cannot be considered when weighing access to public documents. Here, the trial court improperly relied in large part, if not wholly, on the purpose of plaintiff’s records request to determine the relevance of the withheld documents under the litigation exception to the Access to Public Records Act; while plaintiff’s purpose might be strongly indicative of the documents’ relevance to the ongoing traffic litigation, the relevance of the documents to the specific pending litigation had to be established independently. Shlansky v. City of Burlington, 2010 VT 90, 188 Vt. 470, 13 A.3d 1075, 2010 Vt. LEXIS 87 (2010).

Access to Public Records Act represents a strong policy favoring access to public documents and records, and that policy goal would suffer were a court to allow agencies resisting disclosure to avoid it merely by invoking the magic word “relevant” under the litigation exception. To do so would threaten to cut off valuable information not only to the parties to the litigation but to all Vermonters precisely because the litigation exception, if it is to have any meaning, cannot apply solely to an individual litigant. Shlansky v. City of Burlington, 2010 VT 90, 188 Vt. 470, 13 A.3d 1075, 2010 Vt. LEXIS 87 (2010).

The plain, ordinary meaning of “relevant” is used in construing the exception for “records which are relevant to litigation.” Wesco, Inc. v. Sorrell, 2004 VT 102, 177 Vt. 287, 865 A.2d 350, 2004 Vt. LEXIS 307 (2004).

Because the legislature wanted to protect public records that are relevant to a pending lawsuit, the exception for “records which are relevant to litigation” is read as exempting from disclosure through a public records request documents that are relevant-related or pertinent-to, and not merely discoverable in, pending or ongoing litigation. Wesco, Inc. v. Sorrell, 2004 VT 102, 177 Vt. 287, 865 A.2d 350, 2004 Vt. LEXIS 307 (2004).

Security exception.

The trial court did not err in concluding that the security exception allowed under subdivision (c)(25) of this section did not apply to shield calendar entries in the Governor’s daily schedule where there was no showing that disclosure solely of the meetings or events related to the Governor’s presidential aspirations would pose a security risk. Herald Ass'n, Inc. v. Dean, 174 Vt. 350, 816 A.2d 469, 2002 Vt. LEXIS 318 (2002).

Student records.

The express Public Records Act exception for “student records” plainly exempts student disciplinary records from disclosure. Caledonian-Record Publishing Co., Inc. v. Vermont State College, 2003 VT 78, 175 Vt. 438, 833 A.2d 1273, 2003 Vt. LEXIS 266 (2003).

Because the “student records” exception of Public Records Act itself provides an exception for records that may be released, upon request, under the federal Family Education Rights and Privacy Act, the trial court also properly ordered disclosure of the “final results” of any disciplinary proceeding against a student alleged to have committed a “crime of violence” or “nonforcible sex offense” where the college determined that the student violated the college’s rules by committing the offense. Caledonian-Record Publishing Co., Inc. v. Vermont State College, 2003 VT 78, 175 Vt. 438, 833 A.2d 1273, 2003 Vt. LEXIS 266 (2003).

Tax returns.

The exception against disclosure of tax returns under this subchapter does not cover the name and address of the taxpayer. Finberg v. Murnane, 159 Vt. 431, 623 A.2d 979, 1992 Vt. LEXIS 211 (1992).

The tax return exception to this subchapter and the state tax return exception are not construed in pari materia. Finberg v. Murnane, 159 Vt. 431, 623 A.2d 979, 1992 Vt. LEXIS 211 (1992).

Trade secrets.

Redacted portions of a financial feasibility study provided by a private developer to a contractor hired by a city to help it assess the viability of the developer’s plans were exempt from disclosure under the Public Records Act as trade secrets. The developer would lose a business advantage over competitors if the redacted information, pertaining to project costs and revenues, financial projections, and confidential lease terms with a major prospective tenant, was made public, and the developer had made reasonable efforts to protect the confidentiality of the information, including not disclosing it to third parties unless necessary and generally entering into confidentiality agreements when it did. Long v. City of Burlington, 2018 VT 103, 208 Vt. 418, 199 A.3d 542, 2018 Vt. LEXIS 146 (2018).

Vaughn index.

Vermont Supreme Court does not believe that a Vaughn index is necessary, or would even be helpful, where the records fall under a categorical exemption from public access. Rutland Herald v. Vt. State Police, 2012 VT 24, 191 Vt. 357, 49 A.3d 91, 2012 Vt. LEXIS 23 (2012).

Cited.

Cited in State v. Vermont Emergency Board, 136 Vt. 506, 394 A.2d 1360, 1978 Vt. LEXIS 650 (1978); Welch v. Seery, 138 Vt. 126, 411 A.2d 1351, 1980 Vt. LEXIS 1039 (1980); Herald Ass'n v. Judicial Conduct Board, 149 Vt. 233, 544 A.2d 596, 1988 Vt. LEXIS 30 (1988); In re Gobin, 158 Vt. 432, 610 A.2d 150, 1992 Vt. LEXIS 67 (1992); Animal Legal Defense Fund, Inc. v. Institutional Animal Care & Use Committee, 159 Vt. 133, 616 A.2d 224, 1992 Vt. LEXIS 117 (1992); Lucas v. Hahn, 162 Vt. 456, 648 A.2d 839, 1994 Vt. LEXIS 91 (1994); Bianchi v. Lorenz, 166 Vt. 555, 701 A.2d 1037, 1997 Vt. LEXIS 180 (1997).

§ 317a. Management of public records.

    1. Public records in general and archival records in particular should be systematically managed to provide ready access to vital information, to promote the efficient and economical operation of government, and to preserve their legal, administrative, and informational value. (a) (1) Public records in general and archival records in particular should be systematically managed to provide ready access to vital information, to promote the efficient and economical operation of government, and to preserve their legal, administrative, and informational value.
    2. Any public agency may seek services from the Statewide Records and Information Management Program, as defined in 3 V.S.A. § 117(b) and administered by the Vermont State Archives and Records Administration, to establish, maintain, and implement an active and continuing internal records and information management program for the agency.
  1. A custodian of public records shall not destroy, give away, sell, discard, or damage any record or records in his or her charge, unless specifically authorized by law or under a record schedule, as defined in 3 V.S.A. § 117(a)(6) , that has been approved by the State Archivist.

HISTORY: Added 2007, No. 96 (Adj. Sess.), § 1; amended 2017, No. 100 (Adj. Sess.), § 2.

History

Amendments

—2017 (Adj. Sess.). Section amended generally.

§ 318. Procedure.

    1. As used in this section, “promptly” means immediately, with little or no delay, and, unless otherwise provided in this section, not more than three business days: (a) (1) As used in this section, “promptly” means immediately, with little or no delay, and, unless otherwise provided in this section, not more than three business days:
      1. from receipt of a request under this subchapter; or
      2. in the case of a reversal on appeal by a head of the agency pursuant to subsection (c) of this section, from the date of the determination on appeal.
    2. A custodian or head of the agency who fails to comply with the applicable time limit provisions of this section shall be deemed to have denied the request or the appeal upon the expiration of the time limit.
  1. Upon request, the custodian of a public record shall promptly produce the record for inspection or a copy of the record, except that:
    1. If the record is in active use or in storage and therefore not available for use at the time the person asks to examine it, the custodian shall promptly certify this fact in writing to the applicant and, in the certification, set a date and hour within one calendar week of the request when the record will be available.
    2. If the custodian considers the record to be exempt from inspection and copying under the provisions of this subchapter, the custodian shall promptly so certify in writing. The certification shall:
      1. identify the records withheld;
      2. include the asserted statutory basis for denial and a brief statement of the reasons and supporting facts for denial;
      3. provide the names and titles or positions of each person responsible for denial of the request; and
      4. notify the person of his or her right to appeal to the head of the agency any adverse determination.
    3. [Repealed.]
    4. If a record does not exist, the custodian shall promptly certify in writing that the record does not exist under the name given to the custodian by the applicant or by any other name known to the custodian.
    5. In unusual circumstances as herein specified, the time limits prescribed in this section may be extended by written notice to the person making the request setting forth the reasons for the extension and the date on which a determination is expected to be dispatched. No such notice shall specify a date that would result in an extension for more than ten business days from receipt of the request or, in the case of a reversal on appeal by a head of the agency pursuant to subsection (c) of this section, from the date of the determination on appeal. As used in this subdivision, “unusual circumstances” means to the extent reasonably necessary to the proper processing of the particular request:
      1. the need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request;
      2. the need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records that are demanded in a single request; or
      3. the need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of the agency having substantial subject matter interest therein, or with the Attorney General.
    1. Any denial of access by the custodian of a public record may be appealed to the head of the agency. The head of the agency shall make a written determination on an appeal within five business days after the receipt of the appeal. (c) (1) Any denial of access by the custodian of a public record may be appealed to the head of the agency. The head of the agency shall make a written determination on an appeal within five business days after the receipt of the appeal.
    2. If the head of the agency upholds the denial of a request for records, in whole or in part, the written determination shall include:
      1. the asserted statutory basis for upholding the denial;
      2. a brief statement of the reasons and supporting facts for upholding the denial; and
      3. notification of the provisions for judicial review of the determination under section 319 of this title.
    3. If the head of the agency reverses the denial of a request for records, the records shall be promptly made available to the person making the request.
  2. In responding to a request to inspect or copy a record under this subchapter, a public agency shall consult with the person making the request in order to clarify the request or to obtain additional information that will assist the public agency in responding to the request and, when authorized by this subchapter, in facilitating production of the requested record for inspection or copying. In unusual circumstances, as that term is defined in subdivision (b)(5) of this section, a public agency may request that a person seeking a voluminous amount of separate and distinct records narrow the scope of a public records request.
  3. A public agency shall not withhold any record in its entirety on the basis that it contains some exempt content if the record is otherwise subject to disclosure; instead, the public agency shall redact the information it considers to be exempt and produce the record accompanied by an explanation of the basis for denial of the redacted information.
  4. If a person making the request has a disability that requires accommodation to gain equal access to the public record sought, the person shall notify the public agency of the type of accommodation requested. The public agency shall give primary consideration to the accommodation choice expressed by the requestor, but may propose an alternative accommodation so long as it achieves equal access. The public agency shall provide accommodation to the person making the request unless the agency can demonstrate that accommodation would result in a fundamental alteration in the nature of its service, programs, activities, or in undue financial and administrative burden.
  5. The Secretary of State shall provide municipal public agencies and members of the public information and advice regarding the requirements of the Public Records Act and may utilize informational websites, toll-free telephone numbers, or other methods to provide such information and advice.
  6. The head of a State agency or department shall:
    1. designate the agency’s or department’s records officer described in 3 V.S.A. § 218 , or shall designate some other person, to be accountable for overseeing the processing of requests for public records received by the agency or department in accordance with this section; and
    2. post on the agency’s or department’s website the name and contact information of the person designated under subdivision (1) of this subsection.

HISTORY: Added 1975, No. 231 (Adj. Sess.), § 1; amended 2005, No. 132 (Adj. Sess.), § 2; 2007, No. 110 (Adj. Sess.), § 1; 2011, No. 59 , § 4; 2017, No. 166 (Adj. Sess.), § 5; 2019, No. 14 , § 1, eff. April 30, 2019.

History

Amendments

—2019. Subsec. (d): Substituted “(b)(5)” for “(a)(5)”.

—2017 (Adj. Sess.). Amended generally subsecs. (a) through (c) and added subsec. (h).

—2011. Subdivision (a)(2): Substituted “A record shall be produced for inspection or a” for “The” preceding “certification”; inserted “that a record is exempt” following “made”; substituted “three” for “two” preceding “business” inserted “of receipt of the request” following “days” and added the present fourth sentence.

Subdivision (a)(3): Inserted “business” preceding “days” and deleted “excepting Saturdays, Sundays, and legal public holidays” following “days”.

Subdivision (a)(5): Substituted “business” for “working” preceding “days” and inserted “from receipt of the request” following “days”.

Subsections (d)-(g): Added.

—2007 (Adj. Sess.) Subsection (b): Substituted ‘the person’s” for “his” in the first sentence.

Subsection (c): Added.

—2005 (Adj. Sess.). Subdivision (a)(2): Substituted “the custodian” for “he” preceding “shall so” in the first sentence, and rewrote the former second sentence as the present second and third sentences.

Legislative intent. 2017, No. 166 (Adj. Sess.), § 5 provides that : “(b) In rearranging the text of existing law in 1 V.S.A. § 318 (b) -(c) within Sec. 5 of this act [which amends 1 V.S.A. § 318 ], the General Assembly intends to make the text more organized and clear, and does not intend to effect any substantive changes through the rearrangement of existing text.”

ANNOTATIONS

Election records.

Under circumstances where a request under the Vermont Access to Public Records Act (PRA) is pending, the destruction of ballots must be treated as unauthorized. The PRA establishes a clear and orderly process for the handling of PRA requests, which would be circumvented, and the citizen’s right to access defeated, if the statute giving discretionary authority to destroy ballots and tally sheets after the preservation period has expired were applied to allow the custodian to unilaterally destroy the requested ballots and tally sheets even when an access request remains pending. Price v. Town of Fairlee, 2011 VT 48, 190 Vt. 66, 26 A.3d 26, 2011 Vt. LEXIS 47 (2011).

While the custodian may have a good faith belief that the records may be destroyed in reliance upon the elections statute; nevertheless, this is precisely the sort of legal conclusion that the review process under the Vermont Access to Public Records Act was established to determine. Accordingly, the discretionary authority to destroy ballots and tally sheets after the preservation period has expired must be stayed when a public-records request for the material is filed, and the stay must remain in effect until the request is resolved. Price v. Town of Fairlee, 2011 VT 48, 190 Vt. 66, 26 A.3d 26, 2011 Vt. LEXIS 47 (2011).

No legislative policy evident from the election statutes, whether considered singly or as a whole, was furthered by maintaining the confidentiality of ballots and tally sheets from a 2006 election. The preservation period for the election in question had expired, the election results were final, and the purpose of maintaining the ballots under seal had been served. Price v. Town of Fairlee, 2011 VT 48, 190 Vt. 66, 26 A.3d 26, 2011 Vt. LEXIS 47 (2011).

Exhaustion of remedies.

Because plaintiff failed to request any public records from a county state’s attorney, and there was no merit to plaintiff’s claim that the attorney was in privity with a sheriff, his Access to Public Records Act claim against her was properly dismissed for failure to exhaust his administrative remedies. Bain v. Clark, 2012 VT 14, 191 Vt. 190, 44 A.3d 170, 2012 Vt. LEXIS 14 (2012).

Mootness.

Trial court did not err in not dismissing a complaint under the Vermont Access to Public Records Act seeking election ballots and tally sheets as moot. The destruction of the ballots meant that the action to be challenged was a fait accompli, and its duration was over before the issue could be joined in court. The State had not challenged the trial court’s findings that plaintiff would likely continue to request access to the town’s past election ballots based on his “continuing interest” in evaluating the performance of the town’s election officials and that the town’s response would likely be the same. Price v. Town of Fairlee, 2011 VT 48, 190 Vt. 66, 26 A.3d 26, 2011 Vt. LEXIS 47 (2011).

Purpose.

This subchapter is aimed at expeditious resolution of disputes over whether a citizen will have access to a public record; the custodian of the record has an obligation to produce it promptly or within two business days certify the reasons for denial of access; in unusual circumstances, the time for responding, either with disclosure or a claim of exception, can be extended up to ten working days. Finberg v. Murnane, 159 Vt. 431, 623 A.2d 979, 1992 Vt. LEXIS 211 (1992).

Time Limits.

Because the statute does not provide a negative consequence for an agency’s failure to comply with the time requirement, nor does it specify a remedy such as a “deemed approval” or “waiver of exemptions,” the time requirement for a custodian to certify that it considers a record to be exempt is intended to be directory rather than mandatory. Shlansky v. City of Burlington, 2010 VT 90, 188 Vt. 470, 13 A.3d 1075, 2010 Vt. LEXIS 87 (2010).

Cited.

Cited in Bloch v. Angney, 149 Vt. 29, 538 A.2d 174, 1987 Vt. LEXIS 568 (1987); Animal Legal Defense Fund, Inc. v. Institutional Animal Care & Use Committee, 159 Vt. 133, 616 A.2d 224, 1992 Vt. LEXIS 117 (1992); Trombley v. Bellows Falls Union High School District No. 27, 160 Vt. 101, 624 A.2d 857, 1993 Vt. LEXIS 33 (1993); Lucas v. Hahn, 162 Vt. 456, 648 A.2d 839, 1994 Vt. LEXIS 91 (1994).

§ 318a. Executive Branch Agency Public Records Request System.

  1. The Secretary of Administration shall maintain and update the Public Records Request System established pursuant to 2006 Acts and Resolves No. 132, Sec. 3 and 2011 Acts and Resolves No. 59, Sec. 13 with the information furnished under subsection (b) of this section and post System information on the website of the Agency of Administration.
  2. All public agencies of the Executive Branch of the State:
    1. that receive a written request to inspect or copy a record under this subchapter shall catalogue the request in the Public Records Request System established and maintained by the Secretary of Administration by furnishing the following information:
      1. the date the request was received;
      2. the agency that received the request;
      3. the person that made the request, including a contact name;
      4. the status of the request, including whether the request was fulfilled in whole, fulfilled in part, or denied;
      5. if the request was fulfilled in part or denied, the exemption or other grounds asserted as the basis for partial fulfillment or denial;
      6. the estimated hours necessary to respond to the request;
      7. the date the agency closed the request; and
      8. the elapsed time between receipt of the request and the date the agency closed the request; and
    2. shall post in a conspicuous location on their respective websites a link to the location on the Agency of Administration’s website where Public Records Request System information is maintained.

HISTORY: Added 2017, No. 166 (Adj. Sess.), § 6.

§ 319. Enforcement.

  1. Any person aggrieved by the denial of a request for public records under this subchapter may apply to the Civil Division of the Superior Court in the county in which the complainant resides, or has his or her personal place of business, or in which the public records are situated, or in the Civil Division of the Superior Court of Washington County, to enjoin the public agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant. In such a case, the court shall determine the matter de novo, and may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in section 317 of this title, and the burden of proof shall be on the public agency to sustain its action.
  2. Except as to cases the court considers of greater importance, proceedings before the Civil Division of the Superior Court, as authorized by this section, and appeals there from, take precedence on the docket over all cases and shall be assigned for hearing and trial or for argument at the earliest practicable date and expedited in every way.
  3. If the public agency can show the court that exceptional circumstances exist and that the agency is exercising due diligence in responding to the request, the court may retain jurisdiction and allow the agency additional time to complete its review of the records.
    1. Except as provided in subdivision (2) of this subsection, the court shall assess against the public agency reasonable attorney’s fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed. (d) (1) Except as provided in subdivision (2) of this subsection, the court shall assess against the public agency reasonable attorney’s fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed.
    2. The court may, in its discretion, assess against a public agency reasonable attorney’s fees and other litigation costs reasonably incurred in a case under this section in which the complainant has substantially prevailed provided that the public agency, within the time allowed for service of an answer under V.R.C.P. 12(a)(1):
      1. concedes that a contested record or contested records are public; and
      2. provides the record or records to the complainant.
    3. The court may assess against the complainant reasonable attorney’s fees and other litigation costs reasonably incurred in any case under this section when the court finds that the complainant has violated V.R.C.P. 11.

HISTORY: Added 1975, No. 231 (Adj. Sess.), § 1; amended 2011, No. 59 , § 5.

History

Amendments

—2011. Subsection (a): Inserted “civil division of the” preceding “superior” in two places and “or her” following “his”; substituted “of proof shall be” for “is” following “burden” and inserted “public” preceding “agency”.

Subsection (b): Inserted “civil division of the” preceding “superior”.

Subsection (d): Added the subdiv. (1) designation and in that subdiv. substituted “Except as provided in subdivision (2) of this subsection, the” for “The” preceding “court” and “shall” for “may” preceding “assess” and added subdivs. (2) through (3).

ANNOTATIONS

Attorney’s fees.

Vermont Access to Public Records Act’s plain language and purpose foreclose granting attorney’s fees to substantially prevailing self-represented litigants, regardless of whether they happen to be attorneys. Thus, plaintiff, an attorney who represented himself and who substantially prevailed in a case brought under the Act, was not entitled to attorney’s fees. Toensing v. AG of Vt., 2019 VT 30, 210 Vt. 74, 212 A.3d 180, 2019 Vt. LEXIS 50 (2019).

In determining whether newspaper in lawsuit against university seeking release of documents was entitled to attorney’s fees, the following federal factors could be considered along with any other relevant factors: (1) the public benefit derived by the lawsuit; (2) the commercial benefit the requesting party will receive from release of the requested documents; (3) the nature of the requesting party’s interest in the documents; and (4) whether the public agency had a reasonable basis for withholding the documents. The Burlington Free Press v. University of Vermont, 172 Vt. 303, 779 A.2d 60, 2001 Vt. LEXIS 184 (2001).

In determining whether newspaper in lawsuit against university seeking release of documents met its burden of showing that trial court failed to exercise its discretion in denying award of attorney fees, it was first necessary to consider whether plaintiff substantially prevailed in its lawsuit and thus was eligible for attorney’s fees. The Burlington Free Press v. University of Vermont, 172 Vt. 303, 779 A.2d 60, 2001 Vt. LEXIS 184 (2001).

Based on the trial court’s statement indicating its belief that newspaper’s lawsuit against university was necessary for release of documents it sought, it met the threshold test that it substantially prevailed, thereby requiring consideration as to whether it was entitled to attorney’s fees. The Burlington Free Press v. University of Vermont, 172 Vt. 303, 779 A.2d 60, 2001 Vt. LEXIS 184 (2001).

News organizations are not automatically entitled to attorney’s fees when an award of fees does not serve as an incentive to encourage either the requesting party to seek the release of documents or the public agency to remove resistance to their release. The Burlington Free Press v. University of Vermont, 172 Vt. 303, 779 A.2d 60, 2001 Vt. LEXIS 184 (2001).

In lawsuit against university by newspaper seeking release of documents related to hazing incidents, trial court’s denial of plaintiff’s request for attorney’s fees was not an abuse of discretion where the denial was based on several factors, including that (1) university’s decision not to release many of the documents was not only reasonable, but advisable; (2) attorney’s fee award was not necessary to remedy situation in which state agency delayed release of public documents in the hopes that the delay and ensuing litigation would create a financial barrier to those seeking the documents; and (3) some of the documents would have been released anyway because of the federal lawsuit filed by the complaining student. The Burlington Free Press v. University of Vermont, 172 Vt. 303, 779 A.2d 60, 2001 Vt. LEXIS 184 (2001).

It was within discretion of trial court to award attorney’s fees to prevailing plaintiffs in action seeking declaration that Institutional Animal Care and Use Committee of the University of Vermont was subject to Open Meeting Law and Public Records Act. Animal Legal Defense Fund, Inc. v. Institutional Animal Care & Use Committee, 159 Vt. 133, 616 A.2d 224, 1992 Vt. LEXIS 117 (1992).

In action seeking declaration that Institutional Animal Care and Use Committee of University of Vermont was subject to Open Meeting Law and Public Records Act, award of $3,713 attorney’s fees, which amounted to one-half of prevailing plaintiffs’ requested fees, was not unreasonable. Animal Legal Defense Fund, Inc. v. Institutional Animal Care & Use Committee, 159 Vt. 133, 616 A.2d 224, 1992 Vt. LEXIS 117 (1992).

Burden of proof.

On a claim under the Public Records Act, the trial court did not improperly shift the burden of proof to plaintiff; it merely required some claim from plaintiff that the development review board members were withholding documents. Plaintiff never made such a claim—he in fact conceded production—so the trial court did not err. Pease v. Windsor Development Review Board, 2011 VT 103, 190 Vt. 639, 35 A.3d 1019, 2011 Vt. LEXIS 115 (2011) (mem.).

Construction with other laws.

Subsection (a) of this section makes the procedural requirements of section 318 of this title a prerequisite to an action in the superior courts. Bloch v. Angney, 149 Vt. 29, 538 A.2d 174, 1987 Vt. LEXIS 568 (1987).

Trial court lacked subject matter jurisdiction to entertain action seeking access to public records where complaint failed to allege compliance with the procedural requirements of section 318 of this title. Bloch v. Angney, 149 Vt. 29, 538 A.2d 174, 1987 Vt. LEXIS 568 (1987).

Executive privilege.

In camera inspection of requested documents by the court can irrevocably sacrifice the interest sought to be protected by the exercise of executive privilege, even if the court ultimately decides that the interest in confidentiality outweighs the need for disclosure. Killington, Ltd. v. Lash, 153 Vt. 628, 572 A.2d 1368, 1990 Vt. LEXIS 26 (1990), limited, Trombley v. Bellows Falls Union High Sch. Dist. No. 27, 160 Vt. 101, 624 A.2d 857, 1993 Vt. LEXIS 33 (1993).

Where in camera inspection of requested documents might materially and irrevocably compromise the fundamental interests of the executive branch of government, the governor or agency may seek judicial review after the inspection order issues but before it is effected. Killington, Ltd. v. Lash, 153 Vt. 628, 572 A.2d 1368, 1990 Vt. LEXIS 26 (1990), limited, Trombley v. Bellows Falls Union High Sch. Dist. No. 27, 160 Vt. 101, 624 A.2d 857, 1993 Vt. LEXIS 33 (1993).

Superior Court order for in camera review of requested documents, concerning which a claim of executive privilege was made, was remanded to allow plaintiff to meet its burden of showing necessity for the documents. Killington, Ltd. v. Lash, 153 Vt. 628, 572 A.2d 1368, 1990 Vt. LEXIS 26 (1990), limited, Trombley v. Bellows Falls Union High Sch. Dist. No. 27, 160 Vt. 101, 624 A.2d 857, 1993 Vt. LEXIS 33 (1993).

A person seeking disclosure of documents concerning which an agency has made a prima facie case for executive privilege must first demonstrate why the need for the information outweighs the interest in confidentiality before obtaining a right to in camera inspection by the court; common law executive privilege was incorporated into the statute with its established burdens. Killington, Ltd. v. Lash, 153 Vt. 628, 572 A.2d 1368, 1990 Vt. LEXIS 26 (1990), limited, Trombley v. Bellows Falls Union High Sch. Dist. No. 27, 160 Vt. 101, 624 A.2d 857, 1993 Vt. LEXIS 33 (1993).

Cited.

Cited in Sprague v. University of Vermont, 661 F. Supp. 1132, 1987 U.S. Dist. LEXIS 4721 (D. Vt. 1987); Finberg v. Murnane, 159 Vt. 431, 623 A.2d 979, 1992 Vt. LEXIS 211 (1992); Trombley v. Bellows Falls Union High School District No. 27, 160 Vt. 101, 624 A.2d 857, 1993 Vt. LEXIS 33 (1993); Lucas v. Hahn, 162 Vt. 456, 648 A.2d 839, 1994 Vt. LEXIS 91 (1994).

§ 320. Penalties.

  1. Whenever the court orders the production of any public agency records, improperly withheld from the complainant and assesses against the agency reasonable attorney’s fees and other litigation costs, and the court additionally issues a written finding that the circumstances surrounding the withholding raise questions whether the agency personnel acted arbitrarily or capriciously with respect to the withholding, the Department of Human Resources if applicable to that employee, shall promptly initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee who was primarily responsible for the withholding. The Department, after investigation and consideration of the evidence submitted, shall submit its findings and recommendations to the administrative authority of the agency concerned and shall send copies of the findings and recommendations to the officer or employee or his or her representative. The administrative authority shall take the corrective action that the Department recommends.
  2. In the event of noncompliance with the order of the court, the Civil Division of the Superior Court may punish for contempt the responsible employee or official, and in the case of a uniformed service, the responsible member.
  3. A person who willfully destroys, gives away, sells, discards, or damages a public record without having authority to do so shall be fined at least $50.00 but not more than $1,000.00 for each offense.

HISTORY: Added 1975, No. 231 (Adj. Sess.), § 1; amended 2003, No. 156 (Adj. Sess.), § 15; 2007, No. 96 (Adj. Sess.), § 2; 2011, No. 59 , § 6.

History

Amendments

—2011. Subsection (b): Inserted “the civil division of” following “court”.

—2007 (Adj. Sess.). Subsection (a): Inserted “or her” following “employee or his” in the second sentence.

Subsection (c): Added.

—2003 (Adj. Sess.). Subsection (a): Substituted “department of human resources” for “department of personnel”.

ANNOTATIONS

Construction.

Motive is irrelevant to the right of access under this subchapter. Finberg v. Murnane, 159 Vt. 431, 623 A.2d 979, 1992 Vt. LEXIS 211 (1992).

Cited.

Cited in Sprague v. University of Vermont, 661 F. Supp. 1132, 1987 U.S. Dist. LEXIS 4721 (D. Vt. 1987); Trombley v. Bellows Falls Union High School District No. 27, 160 Vt. 101, 624 A.2d 857, 1993 Vt. LEXIS 33 (1993); Lucas v. Hahn, 162 Vt. 456, 648 A.2d 839, 1994 Vt. LEXIS 91 (1994).

Subchapter 4. [Reserved for Future Use.]

Subchapter 5. Interpreters for Judicial, Administrative, and Legislative Findings

CROSS REFERENCES

Oath of interpreter, see § 5811 of Title 12.

§ 331. Definitions.

As used in this subchapter:

  1. “Person who is deaf or hard of hearing” means any person who has such difficulty hearing, even with amplification, that he or she cannot rely on hearing for communication.
  2. “Proceeding” means any judicial proceeding, contested case under 3 V.S.A. chapter 25, or other hearing before an administrative agency not included under 3 V.S.A. chapter 25.
  3. “Qualified interpreter” means an interpreter for a person who is deaf or hard of hearing who meets standards of competency established by the national or Vermont Registry of Interpreters for the Deaf as amended, by rule, by the Vermont Commission of the Deaf and Hard of Hearing.

HISTORY: Added 1987, No. 172 (Adj. Sess.), § 1; amended 2005, No. 167 (Adj. Sess.), § 11, eff. May 20, 2006; 2013, No. 96 (Adj. Sess.), § 3.

History

References in text.

The statute creating the Vermont Commission of the Deaf and Hearing Impaired expired on June 30, 1992, pursuant to 1989, No. 20 , § 1. The name of the Commission in this statute was amended pursuant to 2013, No. 96 (Adj. Sess.), § 3, despite the prior expiration of the Commission’s term.

Revision note

—2003. Deleted the subsection (a) designation at the beginning of the section to conform section to V.S.A. style.

Amendments

—2013 (Adj. Sess.). Subdivision (1): Substituted “Person who is deaf” for “Deaf” and deleted “person” following “hard of hearing”.

Subdivision (3): Inserted “person who is” preceding “deaf”, and deleted “person” following “hearing” and substituted “Commission of the Deaf and Hard of Hearing” for “commission of the deaf and hearing impaired” following “Vermont.”

—2005 (Adj. Sess.). Subdivisions (1) and (3): Substituted “deaf or hard of hearing person” for “hearing impaired person”.

§ 332. Right to interpreter; assistive listening equipment.

  1. Any person who is deaf or hard of hearing who is a party or witness in any proceeding shall be entitled to be provided with a qualified interpreter for the duration of the person’s participation in the proceeding.
  2. Any person who is deaf or hard of hearing shall be entitled to be provided with a qualified interpreter upon five working days’ notice that the person has reasonable need to do any of the following:
    1. transact business with any State board or agency;
    2. participate in any State-sponsored activity, including public hearings, conferences, and public meetings;
    3. participate in any official State legislative activities.
  3. If a person who is deaf or hard of hearing is unable to use or understand sign language, the presiding officer or State board or agency or State legislative official shall, upon five working days’ notice, make available appropriate assistive listening equipment for use during the proceeding or activity.

HISTORY: Added 1987, No. 172 (Adj. Sess.), § 1; amended 2005, No. 167 (Adj. Sess.), § 12, eff. May 20, 2006; 2013, No. 96 (Adj. Sess.), § 3.

History

Amendments

—2013 (Adj. Sess.). Subsections (a), (b), and (c): Inserted “person who is” preceding “deaf” and deleted “person” following “hearing”.

—2005 (Adj. Sess.). Substituted “deaf or hard of hearing person” for “hearing impaired person” in two places in subsection (a) and once in subsection (c).

§ 333. Appointment of interpreter.

  1. The presiding officer in a proceeding shall appoint an interpreter after making a preliminary determination that the interpreter is able to readily communicate with the person who is deaf or hard of hearing, to accurately interpret statements or communications from the person who is deaf or hard of hearing, and to interpret the proceedings to the person who is deaf or hard of hearing.
  2. The presiding officer shall make findings when appointing an interpreter not designated as a qualified interpreter.
  3. It shall be a rebuttable presumption that the requirements of this section are met if the interpreter proposed for appointment is a qualified interpreter.  It shall also be a rebuttable presumption that the requirements of this section are not met if the interpreter proposed for appointment is not a qualified interpreter.

HISTORY: Added 1987, No. 172 (Adj. Sess.), § 1; amended 2005, No. 167 (Adj. Sess.), § 13, eff. May 20, 2006; 2013, No. 96 (Adj. Sess.), § 3.

History

Amendments

—2013 (Adj. Sess.). Subsection (a): Inserted “person who is” preceding “deaf” three times and deleted “person” three times following “hearing”.

—2005 (Adj. Sess.). Subsection (a): Substituted “deaf or hard of hearing person” for “hearing impaired person” wherever it appeared.

CROSS REFERENCES

Appointment of interpreters in civil cases, see V.R.C.P. 43(f).

Appointment of interpreters in criminal cases, see V.R.Cr.P. 28.

Appointment of interpreters in probate proceedings, see V.R.P.P. 43(e).

§ 334. Waiver.

No privilege recognized by law may be deemed waived or made inapplicable by reason that a communication was made through an interpreter.

HISTORY: Added 1987, No. 172 (Adj. Sess.), § 1.

CROSS REFERENCES

Privileged communications, see V.R.E. 501 et seq.

Qualifications, privileges, and credibility of witnesses generally, see 12 V.S.A. § 1601 et seq.

§ 335. Compensation.

An interpreter appointed under section 332 of this title is entitled to receive a reasonable fee for services, together with reimbursement of actual and necessary expenses, including travel and lodging expenses. In civil proceedings, the Court may order that costs of the interpreter be paid by a party, as justice may require, or it may order that the costs be paid by the State. In criminal proceedings, costs of the interpreter shall be paid by the State. An interpreter used in connection with administrative proceedings, transacting State business or State-sponsored activities shall be provided at the expense of the agency involved. An interpreter used in connection with official State legislative activities shall be provided at the expense of the legislature.

HISTORY: Added 1987, No. 172 (Adj. Sess.), § 1.

CROSS REFERENCES

Allowance of costs in civil proceedings generally, see V.R.C.P. 54(d).

Compensation of interpreters in civil cases, see V.R.C.P. 43(f).

Compensation of interpreters in criminal cases, see V.R.Cr.P. 28.

Compensation of interpreters in probate proceedings, see V.R.P.P. 43(e).

§ 336. Rules; information; list of interpreters.

  1. The Vermont Commission of the Deaf and Hard of Hearing shall, by rule, establish factors to be considered by the presiding officer under section 333 of this title before appointing an interpreter who is not a qualified interpreter. Such factors shall encourage the widest availability of interpreters in Vermont while at the same time ensuring that the interpreter:
    1. is able to communicate readily with the person who is deaf or hard of hearing;
    2. is able to interpret accurately statements or communications by the person who is deaf or hard of hearing;
    3. is able to interpret the proceedings to the person who is deaf or hard of hearing;
    4. shall maintain confidentiality;
    5. shall be impartial with respect to the outcome of the proceeding;
    6. shall not exert any influence over the person who is deaf or hard of hearing; and
    7. shall not accept assignments the interpreter does not feel competent to handle.
  2. Rules established by the Vermont Commission of the Deaf and Hard of Hearing pursuant to subdivision 331(3) of this title amending the standards of competency established by the national or Vermont Registry of the Deaf shall be limited to the factors set forth in subsection (a) of this section.
  3. The Vermont Commission of the Deaf and Hard of Hearing shall prepare an explanation of the provisions of this subchapter which shall be distributed to all State agencies and courts.
  4. The Department of Disabilities, Aging, and Independent Living shall maintain a list of qualified interpreters in Vermont and, where such information is available, in surrounding states. The list shall be distributed to all State agencies and courts.

HISTORY: Added 1987, No. 172 (Adj. Sess.), § 1; amended 2005, No. 167 (Adj. Sess.), § 14, eff. May 20, 2006; 2013, No. 96 (Adj. Sess.), § 3.

History

References in text.

The statute creating the Vermont Commission of the Deaf and Hearing Impaired expired on June 30, 1992, pursuant to 1989, No. 20 , § 1. The name of the Commission in subsec. (a) in this statute was amended pursuant to 2013, No. 96 (Adj. Sess.), § 3, and was revised in subsecs. (b) and (c), despite the prior expiration of the Commission’s term.

Revision note

—2014. In subsections (b) and (c), substituted “Vermont Commission of the Deaf and Hard of Hearing” for “Vermont Commission of the Deaf and Hearing Impaired” to correct the name of the commission.

—2010. In subsec. (b), substituted “331(3)” for “331(a)(3)” to correct an error in the reference.

Amendments

—2013 (Adj. Sess.). Subsection (a): Substituted “Commission of the Deaf and Hard of Hearing” for “commission of the deaf and hearing impaired”.

Subdivisions (a)(1), (a)(2), (a)(3), and (a)(6): Inserted “person who is” and deleted “person” at the end.

—2005 (Adj. Sess.). Subsection (a): Substituted “deaf or hard of hearing person” for “hearing impaired person” wherever it appeared.

CROSS REFERENCES

Procedure for adoption of administrative rules, see 3 V.S.A. part 1, chapter 25.

Qualifications of interpreters as experts, see V.R.E. 604.

§ 337. Review.

  1. A decision, order, or judgment of a court or administrative agency may be reversed on appeal if the court or agency finds that a person who is deaf or hard of hearing who was a party or a witness in the proceeding was deprived of an opportunity to communicate effectively, and that the deprivation was prejudicial.
  2. Any person denied a qualified interpreter under subsection 332(b) of this title, may appeal the denial through the administrative appeals process for the agency involved or, where no such administrative appeals process exists, through the Superior Court in the county in which the denial occurred or in Washington Superior Court.

HISTORY: Added 1987, No. 172 (Adj. Sess.), § 1; amended 2005, No. 167 (Adj. Sess.), § 15, eff. May 20, 2006; 2013, No. 96 (Adj. Sess.), § 3.

History

Amendments

—2013 (Adj. Sess.). Subsection (a): Inserted “person who is” and deleted “person” following “hearing”.

—2005 (Adj. Sess.). Subsection (a): Made a minor change in punctuation and substituted “deaf or hard of hearing person” for “hearing impaired person”.

CROSS REFERENCES

Appeals to Superior Court from decisions of governmental agencies, see V.R.C.P. 74.

Appeals to Supreme Court generally, see V.R.A.P. 3 and 13.

Review of governmental actions, see V.R.C.P. 75.

§ 338. Admissions; confessions.

  1. An admission or confession by a person who is deaf or hard of hearing made to a law enforcement officer or any other person having a prosecutorial function may only be used against the person in a criminal proceeding if:
    1. The admission or confession was made knowingly, voluntarily, and intelligently and is not subject to alternative interpretations resulting from the person’s habits and patterns of communication.
    2. The admission or confession, if made during a custodial interrogation, was made after reasonable steps were taken, including the appointment of a qualified interpreter, to ensure that the defendant understood his or her constitutional rights.
  2. The provisions of subsection (a) of this section supplement the constitutional rights of the person who is deaf or hard of hearing.

HISTORY: Added 1987, No. 172 (Adj. Sess.), § 1; amended 2005, No. 167 (Adj. Sess.), § 16, eff. May 20, 2006; 2013, No. 96 (Adj. Sess.), § 3.

History

Amendments

—2013 (Adj. Sess.). Subsections (a) and (b): Inserted “person who is” and deleted “person” following “hearing”.

Subdivision (a)(2): Deleted “but not limited to” following “including”.

—2005 (Adj. Sess.). Substituted “deaf or hard of hearing person” for “hearing impaired person” in the introductory paragraph of subsection (a) and in subsection (b), and made a minor change in punctuation in subdivision (a)(1).

§ 339. Communications made to interpreters; prohibition on disclosure.

  1. An interpreter, whether or not the interpreter is a qualified interpreter, shall not disclose or testify to:
    1. a communication made by a person to an interpreter acting in his or her capacity as an interpreter for a person who is deaf or hard of hearing or a person with limited English proficiency; or
    2. any information obtained by the interpreter while acting in his or her capacity as an interpreter for a person who is deaf or hard of hearing or a person with limited English proficiency.
  2. There is no prohibition on disclosure under this section if the services of the interpreter were sought or obtained to enable or aid anyone to commit or plan to commit what the person who is deaf or hard of hearing or the person with limited English proficiency knew or reasonably should have known to be a crime or fraud.
    1. This section shall not be construed to limit or expand the effect of section 334 of this title. (c) (1) This section shall not be construed to limit or expand the effect of section 334 of this title.
    2. This section shall not be construed to alter or affect the mandatory reporting requirements of 33 V.S.A. § 4913 .
  3. As used in this section, “person with limited English proficiency” means a person who does not speak English as his or her primary language and who has a limited ability to read, write, speak, or understand English.

HISTORY: Added 2003, No. 142 (Adj. Sess.), § 1; amended 2005, No. 167 (Adj. Sess.), § 10, eff. May 20, 2006; 2013, No. 96 (Adj. Sess.), § 3.

History

Amendments

—2013 (Adj. Sess.). Subdivisions (a)(1), (a)(2), and subsection (b): Inserted “person who is” and deleted “person” following “hearing”.

—2005 (Adj. Sess.). Substituted “deaf or hard of hearing person or a person with limited English proficiency” for “hearing impaired person” in subsecs. (a) and (b); in subdiv. (a)(2), substituted “while acting in his or her capacity” for “as a result of serving”; added the subdiv. (c)(1) designation and subdiv. (c)(2); and added subsec. (d).

Chapter 7. Legal Holidays; Commemorative Days

§ 371. Legal holidays.

  1. The following shall be legal holidays:
    1. New Year’s Day, January 1;
    2. Martin Luther King, Jr.’s Birthday, the third Monday in January;
    3. Presidents’ Day, the third Monday in February;
    4. Town Meeting Day, the first Tuesday in March;
    5. Memorial Day, the last Monday in May;
    6. Independence Day, July 4;
    7. Bennington Battle Day, August 16;
    8. Labor Day, the first Monday in September;
    9. Indigenous Peoples’ Day, the second Monday in October;
    10. Veterans’ Day, November 11;
    11. Thanksgiving Day, the fourth Thursday in November;
    12. Christmas Day, December 25.
  2. All State departments, agencies and offices shall observe any legal holiday which falls on a Saturday on the preceding Friday and any legal holiday which falls on a Sunday on the following Monday; however, all other conditions of employment related to legal holidays, including decisions such as the closing or opening of State offices and compensation for work performed on such a day, shall be proper matters for collective bargaining pursuant to 3 V.S.A. § 904 .
  3. The provisions of this section shall not affect any collective bargaining agreement in existence on the effective date hereof.

HISTORY: Amended 1969, No. 202 (Adj. Sess.), § 1, eff. date, see note set out below; 1973, No. 71 , § 1, eff. Jan. 1, 1974; 1973, No. 150 (Adj. Sess.), § 1; eff. March 11, 1974; 1975, No. 133 (Adj. Sess.), § 1, eff. Feb. 6, 1976; 1985, No. 251 (Adj. Sess.), § 1; 2003, No. 83 (Adj. Sess.), § 1; 2017, No. 130 (Adj. Sess.), § 20; 2019, No. 18 , § 2.

History

Source.

1955, No. 141 . V.S. 1947, § 19. 1947, No. 202 , § 19. 1939, No. 1 , §§ 1, 2. P.L. § 19. 1921, No. 1 . G.L. § 35. 1917, No. 254 , § 35. 1910, No. 96 , §§ 1, 2. P.S. §§ 2690, 2691. 1902, No. 48 , § 1. 1898, No. 51 , §§ 1, 2. V.S. §§ 2314, 2315. 1894, No. 132 , §§ 1, 2. 1892, No. 45 . R.L. § 2010. 1876, No. 109 . 1864, No. 69 , § 1. G.S. 80, § 3. R.S. 77, § 5. 1850, No. 23 , § 2.

Revision note

—2015. In subsec. (b), deleted “but not limited to” following “including” in accordance with 2013, No. 5 , § 4.

Amendments

—2019. Subsec. (a): Added the subdiv. designations (1) through (12), and substituted “Indigenous Peoples’ Day” for “Columbus Day” in subdiv. (9).

—2017 (Adj. Sess.). Subsec. (a): Deleted “Lincoln’s Birthday, February 12” and substituted “Presidents’ Day” for “Washington’s Birthday”.

—2003 (Adj. Sess.). Subsection (a): Substituted “the last Monday in May” for “May 30” following “Memorial Day”.

—1985 (Adj. Sess.). Subsection (a): Inserted “Martin Luther King, Jr.’s Birthday, the third Monday in January” following “New Year’s Day, January 1”.

Subsection (b): Added “however, all other conditions of employment related to legal holidays, including but not limited to decisions such as the closing or opening of state offices and compensation for work performed on such a day, shall be proper matters for collective bargaining pursuant to section 904 of Title 3” following “Monday”.

Subsection (c): Added.

—1975 (Adj. Sess.). Subsection (a): Substituted “May 30” for “the last Monday in May” following “Memorial Day”.

—1973 (Adj. Sess.). Subsection (b): Added.

—1973. Subsection (a): Substituted “November 11” for “the fourth Monday in October” following “Veterans’ Day”.

Subsection (b): Repealed.

—1969 (Adj. Sess.). Amended section generally.

Effective date of amendments—

1969 (Adj. Sess.). 1969, No. 202 (Adj. Sess.), § 2, provided: “In section 1 of this act, the amendment designated as 1 V.S.A. § 371(a) shall take effect January 1, 1971 and the amendment designated as 1 V.S.A. § 371(b) shall take effect from passage [March 23, 1970]”.

CROSS REFERENCES

Collective bargaining by teachers as to conditions of employment relating to legal holidays, see 16 V.S.A. § 1072 .

§ 372. Arbor Day.

The first Friday in the month of May of each year is hereby designated as “Arbor Day.”

History

Source.

1957, No. 47 .

§ 373. American History Month.

That February of each year is hereby designated as American History Month, and the Governor of the State of Vermont is requested and authorized to issue annually a proclamation inviting the people of the State of Vermont to observe such month in schools, churches, and other suitable places with appropriate ceremonies and activities.

HISTORY: 1961, No. R-28, app. Feb. 23, 1961.

History

Preamble. Joint Res. No. R-28, app. Feb. 23, 1961, contained the following preamble:

“Whereas, all Americans must honor their debt to the past and their obligation to the future, and

“Whereas, our freedoms are the result of the sacrifice, wisdom, perseverance, and faith of our forefathers, and

“Whereas, the more fully we understand and appreciate our history and heritage the more we will be able to prove worthy of it, and

“Whereas, the need was never more acute for encouraging study and recognition of the greatness that is America, . . . ”.

§ 374. POW-MIA Recognition Day.

The third Friday in the month of September is designated as “POW-MIA Recognition Day.”

HISTORY: Added 1997, No. 82 (Adj. Sess.), § 3, eff. Sept. 18, 1998.

§ 375. Juneteenth.

The third Saturday of the month of June is designated as “Juneteenth National Freedom Day.”

HISTORY: Added 2007, No. 201 (Adj. Sess.), § 2.

History

Legislative findings. 2007, No. 201 (Adj. Sess.), § 1 provides: “The General Assembly finds that:

“(1) For more than 137 years, Juneteenth National Freedom Day has been the most recognized African-American holiday observance in the United States and is also known by other names, including ‘Emancipation Day,’ ‘Freedom Day,’ and ‘Jun-Jun.’

“(2) This special observance commemorates the issuance of General Order No. 3 that Union Major General Gordon Granger read publicly in Galveston, Texas on June 19, 1865 declaring ‘that in accordance with a Proclamation from the Executive of the United States (the Emancipation Proclamation that President Abraham Lincoln issued on January 1, 1863), all slaves are free. This involves an absolute equality of rights and rights of property between former masters and slaves...’

“(3) This observance commemorates the ‘strength and determination of African-Americans who were first brought to this country stacked in the bottom of slave ships in a month’s long journey across the Atlantic Ocean known as the Middle Passage.’

“(4) In recent years, there has been a resurgence of Juneteenth festivities on both the state and national levels, and this important celebration of African-American freedom deserves designation as a commemorative state holiday in Vermont in order to remember the injustices that African-Americans endured during their enslavement and to commemorate their emancipation.”

§ 376. Health Care Career Awareness Month.

October of each year is designated as Health Care Career Awareness Month.

HISTORY: Added 2009, No. 128 (Adj. Sess.), § 31a.

§ 377. Green Up Day; River Cleanup Month.

  1. The first Saturday in the month of May is designated as Green Up Day.
  2. September of each year is designated as River Cleanup Month.

HISTORY: Added 2013, No. 117 (Adj. Sess.), § 2; 2019, No. 50 , § 3.

History

Amendments

—2019. Section heading: Substituted “River Cleanup Month” for “River Green Up Month”.

Subsec. (b): Substituted “Cleanup” for “Green Up”.

Chapter 9. Time

§ 431. Standard time; daylight saving time.

  1. The standard time within the State of Vermont shall be based on the mean astronomical time of 75° of longitude west from Greenwich, known and designated as “U.S. Eastern Standard Time,” except as provided in 15 U.S.C. § 260a , when standard time shall be advanced one hour. The period of time so advanced may be called “daylight saving time.”
  2. The Governor is authorized to shorten or lengthen the period specified in subsection (a) of this section by proclamation, if necessary to make the time accord with the time in effect in any of the states whose boundaries adjoin Vermont.  This proclamation shall be issued at least 10 days before it takes effect.

HISTORY: Amended 2017, No. 74 , § 1.

History

Source.

1955, No. 32 , § 1. V.S. 1947, § 7699. P.L. § 8359. 1921, No. 261 , § 1.

Revision note

—2017. Subsec. (a): Substituted “75°” for “the 75” preceding “of longitude west” and “Eastern Standard Time” for “Standard Eastern time” in the first sentence.

Undesignated paragraphs were designated as subsecs. (a) and (b) to conform section to V.S.A. style.

Substituted “in subsection (a) of this section” for “above” in subsec. (b) to conform reference to V.S.A. style.

Amendments

—2017. Subsec. (a): Amended generally.

Notes to Opinions

Prior law.

Prior to the 1955 amendment of section 7699 of V.S. 1947, the governor had no authority to adopt by proclamation daylight saving time. 1940-42 Op. Atty. Gen. 129, 221; 1944-46 Op. Atty. Gen. 136; 1946-48 Op. Atty. Gen. 132, 208.

§ 432. Use as to laws and contracts.

In all laws, statutes, orders, decrees, rules, and regulations relating to the time of performance of any act by any officer or department of this State, including the Legislative, Executive, and Judicial Branches of the State government, or of any county, city, town, or district thereof, or relating to the time in which any rights shall accrue or determine, or within which any act shall or shall not be performed by any person subject to the jurisdiction of this State and in all the public schools and institutions of the State, or of any county, city, town, or district thereof, and in all contracts or choses in action made or to be performed in this State, it shall be understood and intended that the time shall be the time designated in section 431 of this title.

History

Source.

1955, No. 32 , § 2. V.S. 1947, § 7700. 1947, No. 155 , § 1. P.L. § 8360. 1921, No. 261 , § 2.

CROSS REFERENCES

Computation of time, see § 138 of this title.

Chapter 11. Flag, Insignia, Seal, etc.

§ 491. Coat of Arms; Crest; Motto and Badge.

The Coat of Arms, Crest, Motto and Badge of the State shall be and are described as follows:

  1. Coat of Arms.   Green, a landscape occupying half of the shield; on the right and left, in the background, high mountains, blue; the sky, yellow.  From near the base and reaching nearly to the top of the shield, arises a pine tree of the natural color and between three erect sheaves, yellow, placed diagonally on the right side and a red cow standing on the left side of the field.
  2. Motto and Badge.   On a scroll beneath the shield, the motto: Vermont; Freedom and Unity.  The Vermonter’s badge: two pine branches of natural color, crossed between the shield and scroll.
  3. Crest.   A buck’s head, of natural color, placed on a scroll, blue and yellow.

History

Source.

V.S. 1947, § 47. P.L. § 46. G.L. § 302. P.S. § 241. V.S. § 174. R.L. § 117. 1862, No. 11 , § 1.

CROSS REFERENCES

Illegal acts relating to state shield, see § 1901 et seq. of Title 13.

§ 492. Design of Coat of Arms.

The Secretary of State shall keep in the archives of his or her office a representation of the Coat of Arms according to the foregoing description.

History

Source.

V.S. 1947, § 48. P.L. § 47. G.L. § 305. P.S. § 244. V.S. § 177. R.L. § 120. 1862, No. 11 , § 4.

§ 493. State Seal.

The State Seal shall be the Great Seal of the State, a faithful reproduction, cut larger and deeper, of the original seal, designed by Ira Allen, cut by Reuben Dean of Windsor and accepted by resolution of the General Assembly, dated February 20, 1779. The Seal shall be kept by the Secretary of Civil and Military Affairs.

History

Source.

V.S. 1947, § 49. 1937, No. 1 , § 1. P.L. § 48. G.L. § 303. P.S. § 242. 1898, No. 5 , § 1. V.S. § 175. R.L. § 118. 1862, No. 11 , § 2.

§ 494. Use of State Seal.

The Vermont Development Board may, with the prior written consent of the Governor, reproduce the seal of the State of Vermont in any State-sponsored publication whether or not advertising is included in such publication.

HISTORY: Amended 1959, No. 329 (Adj. Sess.), § 18(a), eff. March 1, 1961.

History

Source.

1953, No. 19 .

Editor’s note—

The Development Board no longer exists. Section 1 of Title 10, which created the Development Board, was repealed by 1991, No. 145 (Adj. Sess.), § 6.

Amendments

—1959 (Adj. Sess.). Substituted “board” for “commission” following “development”.

CROSS REFERENCES

Permitted uses of State Seal, see 13 V.S.A. § 1904a .

§ 495. State Flag.

The Flag of the State shall be blue with the Coat of Arms of the State thereon.

History

Source.

V.S. 1947, § 50. P.L. § 49. 1923, No. 4 . 1919, No. 8 . G.L. § 304. P.S. § 243. V.S. § 176. R.L. § 119. 1862, No. 11 , § 3. 1837, No. 121 . 1803, p. 33.

§ 496. State Flags, purchase, distribution.

The Secretary of State shall obtain, through the Department of Buildings and General Services, State Flags. The Secretary may, on terms that he or she finds appropriate, distribute these State Flags to other states; to State officials, departments, and agencies; and to other persons the Secretary may determine should receive them.

HISTORY: Added 1961, No. 120 , § 1, eff. May 16, 1961; amended 1963, No. 77 , §§ 1, 2, eff. May 2, 1963; 1995, No. 148 (Adj. Sess.), § 4(a), eff. May 6, 1996; 2017, No. 111 (Adj. Sess.), § 2.

History

Revision note—

Subsections (a) and (b) are sections 1 and 2 respectively of 1963, No. 77 .

In subsec. (b), substituted “division for historic preservation” for “Board of Historic Sites”. See § 2473 of Title 3.

Substituted “department of general services” for “purchasing division” in subsec. (a) in light of Executive Order No. 35-87, which provided for the abolition of the division of purchasing and the transfer of the duties, responsibilities, authority, authorized positions and equipment of that entity to the department of general services as established by the order. By its own terms, Executive Order No. 35-87 took effect on July 1, 1987, pursuant to section 2002 of Title 3. For the text of Executive Order No. 35-87, see chapter 3 of Title 3 Appendix.

Amendments

—2017 (Adj. Sess.). Section amended generally.

—1995 (Adj. Sess.) Subsection (a): Substituted “department of buildings and general services” for “department of general services”.

—1963. Amended section generally.

Prior law.

1 V.S.A. § 495a.

CROSS REFERENCES

Illegal acts relating to State Flag, see 13 V.S.A. § 1901 et seq.

§ 496a. Bennington Battle Flag.

The Secretary of State shall obtain, through the Department of Buildings and General Services, two copies of the Bennington Battle Flag, one for delivery to the Sergeant at Arms to be flown at the State House in Montpelier, under the U.S. Flag, on the 15th, 16th, and 17th days of August each year to commemorate the Battle of Bennington, and a second for delivery to the Vermont Division for Historic Preservation, along with one Vermont State Flag, to be flown at the Bennington Battle Monument Area.

HISTORY: Added 2017, No. 111 (Adj. Sess.), § 3.

History

Revision note

—2017 (Adj. Sess.). Section 496a, as added by 2017, No. 122 (Adj. Sess.), § 1, was redesignated section 496e to avoid conflict with section 496a as added by 2017, No. 111 (Adj. Sess.), § 3.

§ 496b. Green Mountain Boys Flag.

The Secretary of State shall obtain, through the Department of Buildings and General Services, a copy of the Green Mountain Boys Flag for delivery to the Sergeant at Arms to be flown at the State House in Montpelier, under the U.S. Flag, on the 15th day of January each year to commemorate Vermont’s independence.

HISTORY: Added 2017, No. 111 (Adj. Sess.), § 4.

§ 496c. POW-MIA flag; flying on State flagpoles.

The State of Vermont shall fly on State-owned flagpoles, where practicable, the National League of Families Prisoner of War and Missing in Action Flag, as designated in 36 U.S.C. § 902, provided the flag is donated.

HISTORY: Added 2017, No. 111 (Adj. Sess.), § 5; amended 2019, No. 131 (Adj. Sess.), § 2.

History

Amendments

—2019 (Adj. Sess.). Substituted “36 U.S.C. § 902” for “36 U.S.C. § 189”.

§ 496d. Flag protocol.

The Department of Buildings and General Services shall adopt and update as necessary a protocol for the flying of any flag on a State-owned flagpole and on municipally owned flagpoles if statutorily directed. The protocol shall incorporate any existing flag-flying policies or protocols that the Department has previously adopted.

HISTORY: Added 2017, No. 111 (Adj. Sess.), § 6.

§ 496e. Honor and Remember Flag.

The Honor and Remember Flag is designated as the flag that recognizes those Vermonters who died during or as the result of serving on active duty in the U.S. Armed Forces. This designation will recognize their bravery and educate Vermonters about the sacrifices their fellow citizens have made to protect our nation. The Department of Buildings and General Services shall establish a protocol for the flying of the Honor and Remember Flag and may accept donations of the flag to be flown on State-owned flagpoles. The Honor and Remember Flag may be flown on State-owned and municipally owned flagpoles, including those at military facilities, war memorials, and veterans cemeteries on such days as the Department of Buildings and General Services shall designate in the protocol.

HISTORY: Added 2017, No. 122 (Adj. Sess.), § 1, eff. May 3, 2018.

History

Revision note

—2017 (Adj. Sess.). Section 496e originally enacted by 2017, No. 122 (Adj. Sess.), § 1 as section 496a; was redesignated section 496e to avoid conflict with section 496a as added by 2017, No. 111 (Adj. Sess.), § 3.

§ 497. State Bird.

The State Bird shall be the hermit thrush.

History

Source.

V.S. 1947, § 52. 1941, No. 1 , § 1.

Revision note—

Former § 497, relating to state flower, is set out as § 498 of this title.

Prior law.

1 V.S.A. § 496 .

§ 498. State Flower.

The State Flower shall be the red clover.

History

Source.

V.S. 1947, § 51. P.L. § 50. G.L. § 306. P.S. § 245. V.S. § 178. 1894, No. 159 .

Revision note—

Former § 498, relating to state tree, is set out as § 499 of this title.

Prior law.

1 V.S.A. § 497 .

§ 499. State Tree.

The State Tree shall be the sugar maple.

History

Source.

1949, No. 1 .

Revision note—

Former § 499, relating to State Animal, is set out as § 500 of this title.

Prior law.

1 V.S.A. § 498 .

§ 500. State Animal.

The State Animal shall be the Morgan horse.

HISTORY: 1961, No. 42 , § 1, eff. March 23, 1961.

History

Revision note—

Former § 500, relating to poet laureate, was set out as § 501 of this title.

Prior law.

1 V.S.A. § 499 .

§ 501. State Fish.

The State Cold Water Fish shall be the brook trout ( salvelinus fontinalis ) and the State Warm Water Fish shall be the walleye pike ( sander vitreus ).

HISTORY: Added 2011, No. 82 (Adj. Sess.), § 2, eff. April 13, 2012.

History

Former § 501. Section 501, formerly set out as § 500, relating to the appointment of Robert Frost as poet laureate of the state of Vermont, was derived from 1961, No. R-59.

Legislative findings. 2011, No. 82 (Adj. Sess.), § 1 provides: “The General Assembly finds that:

“(1) there are two fish in Vermont that are high quality, handsome game fish.

“(2) these fish are representative of Vermont’s reputation for clean water and fine fishing.

“(3) these two fish symbolize both the icy cold mountain streams and the warmer lakes within the state, and the fine fishing available in both.

“(4) the original designation of these two fish was championed by the students of Cornwall Elementary School, whose efforts resulted in a Joint Resolution, approved by the General Assembly on May 3, 1978 (J.R.S. 41), designating the two state fish.”

§ 502. State Insect.

The State Insect shall be the honeybee.

HISTORY: Added 1977, No. 124 (Adj. Sess.), § 1, eff. Feb. 17, 1978.

§ 503. State Beverage.

The State Beverage shall be milk.

HISTORY: Added 1983, No. 22 , § 1, eff. April 22, 1983.

§ 504. State Soil.

The State Soil shall be the Tunbridge soil series.

HISTORY: Added 1985, No. 9 , § 1, eff. Mar. 27, 1985.

§ 505. State Butterfly.

The State Butterfly shall be the monarch.

HISTORY: Added 1987, No. 72 , § 1, eff. June 8, 1987.

§ 506. State Gem.

The State Gem shall be the grossular garnet.

HISTORY: Added 1991, No. 221 (Adj. Sess.), § 1, eff. May 28, 1992.

§ 507. State Rocks.

The State Rocks shall be marble, granite, and slate.

HISTORY: Added 1991, No. 221 (Adj. Sess.), § 2, eff. May 28, 1992.

§ 508. State Mineral.

The State Mineral shall be talc.

HISTORY: Added 1991, No. 221 (Adj. Sess.), § 3, eff. May 28, 1992.

§ 509. State Fossils.

  1. The State Marine Fossil shall be the white whale fossilized skeleton at the University of Vermont’s Perkins Geology Museum.
  2. The State Terrestrial Fossil shall be the Mount Holly mammoth tooth and tusk at the Mount Holly Community Historical Museum.

HISTORY: Added 1993, No. 66 , § 1, eff. June 6, 1993; amended 2013, No. 116 (Adj. Sess.), § 15a.

History

Amendments

—2013 (Adj. Sess.). Section heading: Substituted “fossils” for “fossil”.

Subsection (a): Inserted “marine” following “The State”.

Subsection (b): Added.

§ 510. State Flavor.

The State Flavor shall be maple from the Vermont sugar maple tree.

HISTORY: Added 1993, No. 139 (Adj. Sess.), § 1, eff. April 26, 1994.

§ 511. State Amphibian.

The State Amphibian shall be the northern leopard frog.

HISTORY: Added 1997, No. 126 (Adj. Sess.), § 2, eff. April 21, 1998.

§ 512. State Pie.

The State Pie shall be apple pie.

HISTORY: Added 1999, No. 15 , § 1, eff. May 10, 1999.

History

Serving apple pie. 1999, No. 15 , § 2 provides: “When serving apple pie in Vermont, a ‘good faith’ effort shall be made to meet one or more of the following conditions:

“(a) with a glass of cold milk,

“(b) with a slice of cheddar cheese weighing a minimum of 1/2 ounce,

“(c) with a large scoop of vanilla ice cream.”

§ 513. State Fruit.

The State Fruit shall be the apple.

HISTORY: Added 1999, No. 15 , § 3, eff. May 10, 1999.

§ 514. State Song.

The State Song shall be “These Green Mountains.”

HISTORY: Added 1999, No. 99 (Adj. Sess.), § 2, eff. May 5, 2000.

History

Findings relating to state song. 1999, No. 99 (Adj. Sess.), § 2, provided: “In 1998, the General Assembly adopted Joint House Resolution 102, directing the Vermont Arts Council to appoint a three-member panel to recommend a new state song to the General Assembly. The specially-appointed panel, pursuant to the resolution, conducted the selection process in a fair and impartial manner. A total of 107 entries was received. After a careful review, eight songs were selected as finalists, aired on the state’s public radio and television networks, and posted on the Vermont Arts Council’s World Wide Web site. All Vermonters were invited to participate in the review of the final eight selections. As a result of this public process, the winning song was ‘These Green Mountains,’ composed by Diane Martin and arranged by Rita Buglass. The public and representatives of for profit and not-for-profit organizations may perform or invite the performance of the song for any reason without compensation to or permission from the composer”.

§ 515. State Heritage Livestock Breed.

The Randall Lineback breed of cattle shall be an official State Heritage breed of livestock.

HISTORY: Added 2005, No. 97 (Adj. Sess.), § 2.

History

Legislative findings. 2005, No. 97 (Adj. Sess.), § 1 provides: “The only traditional breed of cattle to have originated in Vermont is the Randall Lineback. The Randall Lineback breed is named for the Samuel Randall family of Sunderland who developed the breed approximately 100 years ago by carefully preserving a closed herd. The breed’s appearance and striking color pattern set it apart from the standardized breed and distinguish it as unique. As recently as 1985, the Randall Lineback breed faced extinction when the remaining herd reached a low of between 15 and 20 head. Today, the Randall Lineback breed is growing, but still remains critically rare with fewer than 200 head registered nationally. In consideration of the contributions of the Randall Lineback breed to the agricultural history of Vermont, the state recognizes that preservation of this critically rare breed is integral to the heritage of Vermont.”

§ 516. State Sports.

The State Winter Sports shall be skiing and snowboarding.

HISTORY: Added 2011, No. 77 (Adj. Sess.), § 2, eff. March 8, 2012.

History

Legislative findings. 2011, No. 77 (Adj. Sess.), § 1 provides: “In recognition of the importance that sports and fitness can play in the personal lives of Vermonters and in the economic well-being of the state, the general assembly finds:

“(1) The history of skiing and snowboarding is heavily linked to Vermont.

“(2) In 1934, the country’s first ski area opened near Woodstock when the first rope tow ski lift was installed on Clinton Gilbert’s farm. This was followed by many other historical Vermont firsts in the ski industry, including the nation’s first ski race which was held on Mount Mansfield in 1934, the nation’s first J-bar lift which was installed at Bromley Ski Area in 1936, the nation’s first ski patrol which was established at Stowe Ski Area in 1936, the nation’s first T-bar lift which was installed at Pico Peak Ski Area in 1940, and the nation’s first major chair lift which was installed at the Stowe Ski Area in 1940.

“(3) In 1938, C. Minot Dole founded the National Ski Patrol in Vermont. Dole later used the National Ski Patrol model to convince the U.S. Army to activate a division of American mountain soldiers on skis, known as the 10th Mountain Division. Approximately 240 Vermonters served in the famed winter warfare division during World War II, with a dozen killed in action in the battle against the Germans in the Italian Alps.

“(4) In 1952, Rutland’s Andrea Mead-Lawrence, whose parents ran Pico Mountain, became the first American woman to win two Olympic gold medals in skiing. Stowe’s Billy Kidd won the silver medal at the 1964 Innsbruck Olympics and the gold and bronze medals at the 1970 World Championships.

“The skiing Cochrans- Barbara Ann, Lindy, Marilyn, and Bobby- from Richmond dominated the world racing scene in the 1960s and 1970s, with Barbara Ann winning the gold medal at the 1972 winter Olympics. Nordic skier Bill Koch, from Brattleboro, skied in four Olympics- 1976, 1980, 1984, and 1992. Koch won the 1976 silver medal, a first for an American Nordic skier, a bronze medal in the 1982 Federation Internationale de Ski Nordic World Championships, and a bronze medal in the 1982 World Cup Championships. Most recently, at the 2010 Winter Olympics, Hannah Kearney of Norwich won the gold medal in the women’s freestyle skiing event.

“(5) Vermont is home to many public schools, academies, and colleges that are world-class training grounds for skiing and snowboarding.

“(6) In 1982, the Suicide Six Resort in Pomfret was the first resort in the United States to allow snowboarding.

“(7) In the 1980s, Vermont was the first state in the country to host what is now known as a snowboard park at the Sonnenberg Ski Area in Barnard.

“(8) The U.S. Open for Snowboarding is held in Vermont. This event is the renowned first competition for snowboarding and offers an exciting opportunity to watch the world’s best snowboarders exhibiting their skills.

“(9) At the 2002 Winter Olympics, Ross Powers of Stratton and Kelly Clark of Dover won the men’s and women’s gold medal respectively in the snowboarding halfpipe event.

“(10) The United States Olympic Committee named Hannah Teeter of Belmont, the 2006 Winter Olympics women’s halfpipe gold medalist, as the 2006 Sportswoman of the Year, the top honor that the committee confers. She returned to the Winter Olympics in 2010 to win a silver medal in the women’s halfpipe while Kelly Clark followed immediately behind her in the competition, capturing the bronze medal.

“(11) The United States Olympic Committee named former United States Halfpipe Head Coach Bud Keene of Stowe the 2006 National Coach of the Year.

“(12) In 1977, Vermonter Jake Burton Carpenter founded a snowboard company in his barn and perfected the technology to build snowboards. Today, this Burlington-based company is the worldwide leader in the manufacture and sale of snowboards. Jake and Donna Burton Carpenter were inducted into the United States National Ski and Snowboarding Hall of Fame in 2007.

“(13) Increasingly, there is an alarmingly high number of obese children in the United States. Both skiing and snowboarding promote healthy outdoor exercise for children, their parents, and people of all ages.

“(14) Vermont historically ranks as the third largest ski and snowboard state, with over four million snowboarder and skier visits per year, and both sports are a critical part of our state’s economy, heritage, and way of life.

“(15) Designating skiing and snowboarding as the Vermont state sports will encourage individuals to travel to Vermont to ski and snowboard where they will patronize local hotels and restaurants and purchase Vermont goods and services.”

§ 517. State Fly-Fishing Fly.

The State Fly-Fishing Fly shall be the Governor Aiken bucktail streamer.

HISTORY: Added 2013, No. 116 (Adj. Sess.), § 14.

§ 518. State Latin Motto.

The State Latin Motto shall be Stella quarta decima fulgeat (May the 14th star shine bright).

HISTORY: Added 2015, No. 6 , § 1.

§ 519. State Vegetable.

The State Vegetable shall be the Gilfeather turnip.

HISTORY: Added 2015, No. 127 (Adj. Sess.), § 1.

Chapter 13. Jurisdiction of the United States

§ 551. Concurrent jurisdiction reserved.

When, pursuant to U.S. Const. Art. 1, § 8, cl. 17, consent to purchase is given and exclusive jurisdiction ceded to the United States in respect to and over any lands within this State which shall be acquired by the United States for the purposes described in such clause of the Constitution, such jurisdiction shall continue so long as the lands are held and occupied by the United States for public purposes; but concurrent jurisdiction is reserved for the execution upon such lands of all process, civil or criminal, issued by the courts of the State and not incompatible with the cession, and for the enforcement of State law in the federal enclave along the border of Canada and Vermont by law enforcement officers certified under 20 V.S.A. § 2358 . The deed or other conveyance of such land to the United States shall contain a description of such lands by metes and bounds and shall be recorded in the town clerk’s office of the town in which such lands lie or an accurate map or plan and description by metes and bounds of such lands shall be filed in such clerk’s office.

HISTORY: Amended 1999, No. 160 (Adj. Sess.), § 1, eff. May 29, 2000.

History

Source.

V.S. 1947, § 60. P.L. § 51. G.L. § 40. 1917, No. 254 , § 44. 1910, No. 1 , § 2. P.S. § 38. V.S. § 2207. 1891, No. 15 , § 1.

Amendments

—1999 (Adj. Sess.) Added “and for the enforcement of state law in the federal enclave along the border of Canada and Vermont by law enforcement officers certified under section 2358 of Title 20” at the end of the first sentence.

ANNOTATIONS

Arrest on federal enclaves.

Even though state police officers did not observe defendants’ operation of their vehicles, where the officers, based on their own observations and information from the federal officers, had probable cause to believe defendants were operating their vehicles under the influence of alcohol, the officers, acting pursuant to provisions of the court rule governing arrests and this section, were authorized to arrest defendants without warrants. State v. Garbutt, 173 Vt. 277, 790 A.2d 444, 2001 Vt. LEXIS 414 (2001).

Construction.

Language in this section referring to process “issued by the courts of the state” did not preclude defendant’s warrantless arrest in federal enclave at port of entry. State v. Graves, 170 Vt. 646, 757 A.2d 462, 2000 Vt. LEXIS 129 (2000) (mem.).

Cited.

Cited in State v. Vanhouten, 165 Vt. 572, 679 A.2d 900, 1996 Vt. LEXIS 49 (1996) (mem.).

Notes to Opinions

Retrocession of jurisdiction.

In the event lands acquired by the United States cease to be held and occupied by it for a public purpose, federal jurisdiction would terminate and revert to the state by virtue of this section; no additional legislation would be necessary to accept retrocession of jurisdiction on behalf of the state. 1968-70 Vt. Op. Att'y Gen. 59.

When the United States intends to return legislative jurisdiction over land it has acquired without terminating its title, use or occupancy, there is no authority for acceptance of such jurisdiction by the state unless the general assembly enacts authorizing legislation. 1968-70 Vt. Op. Att'y Gen. 59.

§ 552. Consent to purchase.

Subject to the provisions of section 551 of this title, consent to purchase is hereby given and exclusive jurisdiction is ceded to the United States in respect to and over so much land as the United States has or may acquire for the purposes described in U.S. Const. Art. 1, § 8, cl. 17. However, with respect to land hereafter sought to be acquired by the United States for flood control purposes or for other needful buildings as specified in such clause of the Constitution of the United States, the consent of the State shall not be deemed to have been given unless and until such land has been acquired by the State and conveyed to the United States in the manner provided by 29 V.S.A. chapter 15 with respect to public works projects and with the written approval of the Governor and the approval of the General Assembly.

HISTORY: Amended 1971, No. 167 (Adj. Sess.), § 1.

History

Source.

V.S. 1947, § 61. 1939, No. 2 , § 1. P.L. § 52. G.L. § 41. 1917, No. 254 , § 45. 1910, No. 1 , §§ 1, 2.

References in text.

29 V.S.A. chapter 15, referenced in this section, was repealed by 1995, No. 188 (Adj. Sess.), § 4(12).

Revision note—

Reference to “chapter 11 of Title 29” changed to “chapter 15 of Title 29” to conform reference to reclassification of such chapter.

Amendments

—1971 (Adj. Sess.). Added “and the approval of the general assembly” following “governor” at the end of the second sentence.

Notes to Opinions

Flood control.

The apparent intention of provision of this section relating to land acquired for flood control purposes was to give the governor power to control, or at least a veto power over, the location of federal flood control and other dams in this state, but this attempt was nominal rather than real. 1940-42 Vt. Op. Att'y Gen. 183.

Congress cannot be denied the power to authorize the construction of flood control dams on navigable rivers or non-navigable tributaries thereof for the purpose of safeguarding the channels of foreign and interstate commerce. 1938-40 Op. Atty. Gen. 207, 418.

§ 553. Federal Geological Survey.

For the purpose of making the surveys required of the Federal Geological Survey by acts of Congress, it shall be lawful for the persons employed in making the same to enter upon the lands within the boundaries of this State, but this section shall not be construed as authorizing any unnecessary interference with private rights.

History

Source.

V.S. 1947, § 62. P.L. § 53. G.L. § 42. P.S. § 39. 1902, No. 161 , § 1.

CROSS REFERENCES

Geologic surveys and reports, see 10 V.S.A. § 101 et seq.

§ 554. National forest lands.

The consent of the State of Vermont is hereby given to the acquisition by the United States, by purchase, gift, or condemnation with adequate compensation, of such lands in Vermont with the approval of a Board consisting of the Governor, Lieutenant Governor, Attorney General, Commissioner of Forests, Parks and Recreation, and Secretary of Agriculture, Food and Markets in the following towns: Bristol, Lincoln, Warren, Ripton, Granville, Hancock, Rochester, Pittsfield, Chittenden, Goshen, Middlebury, Salisbury, Leicester, Brandon, Mendon, Stockbridge, Winhall, Londonderry, Peru, Dorset, Danby, Landgrove, Weston, Wallingford, Mt. Holly, Mt. Tabor, Stratton, Wardsboro, Dover, Wilmington, Whitingham, Readsboro, Searsburg, Sunderland, Manchester, Woodford, Stamford, Jamaica, Bennington, Pownal, Shaftsbury, Arlington, and Killington, and the unorganized towns of Glastenbury and Somerset, which in the opinion of the federal government and the State may be needed for the establishment, consolidation, and extension of national forests in the State. Land in the Town of Rupert and the Town of Sandgate may be considered by the Board for classification within boundaries of areas of the State in which the United States may acquire lands as National Forest lands, provided that the legislative body of the town has voted to allow such consideration after having been advised to do so by a majority of town residents voting in an advisory referendum on the question. Such Board shall act on a specific parcel only after it has the written approval of the legislative body or selectboard members of the town or supervisors of an unorganized town or gore wherein such land, or a part thereof is located.

HISTORY: Amended 1989, No. 224 (Adj. Sess.), eff. June 4, 1990; 2013, No. 161 (Adj. Sess.), § 72.

History

Source.

V.S. 1947, § 63. 1937, No. 2 , § 1. 1935, No. 2 , § 1. P.L. § 54. 1925, No. 1 , § 1.

Revision note

—2013 (Adj. Sess.). Substituted “selectboard members” for “selectmen” pursuant to 2013, No. 161 (Adj. Sess.), § 72.

—2003. Substituted “secretary of agriculture, food and markets” for “commissioner of agriculture, food and markets” in the first sentence for purposes of conformity with 2003, No. 42 , § 2.

Substituted “commissioner of agriculture, food and markets” for “commissioner of agriculture” in the first sentence for purposes of conformity with 1989, No. 256 (Adj. Sess.), § 10(a).

Substituted “Killington” for “Sherburne” in the first sentence in light of 1999, Municipal Act No. M-3, § 3, which changed the name of the town of Sherburne, in the county of Rutland, to Killington. Section 4 of that act also directed the statutory revision commission to make all necessary changes in the Vermont Statutes Annotated to bring it into conformity with the provisions of the act.

Substituted “commissioner of forests, parks and recreation” for “state forester” to conform reference to new title and reorganization of state government. See 3 V.S.A. § 2872 .

Amendments

—1989 (Adj. Sess.). Substituted “with the approval of” for “as” following “lands in Vermont”, deleted “shall approve of” following “agriculture” and inserted “and the state” following “federal government” in the first sentence, rewrote the second sentence, inserted “on a specific parcel” following “shall act” and “legislative body or” preceding “selectmen” in the third sentence.

§ 555. Jurisdiction of United States over national forests.

The United States shall have jurisdiction to make and enforce such laws, rules, and regulations as the United States shall deem necessary for the administration, protection, and management of national forests in the State.

HISTORY: Amended 2021, No. 52 , § 2, eff. June 3, 2021.

History

Source.

V.S. 1947, § 64. 1935, No. 2 , § 2.

Amendments

—2021. Deleted “such” preceding “national forests” and added “in the State” at the end.

§ 556. Jurisdiction of State over national forests.

In all other respects, the jurisdiction over persons and property within the territory of national forests in the State shall not be affected nor changed by reason of the acquisition of title to such lands by the United States.

HISTORY: Amended 2021, No. 52 , § 3, eff. June 3, 2021.

History

Source.

V.S. 1947, § 65. 1935, No. 2 , § 3.

Amendments

—2021. Substituted “the” for “such” preceding “territory” and “acquisition”, and inserted “of national forests in the State” following “territory”.

§ 557. Disposition of monies from national forests and forest products.

All sums received by this State from the United States, on account of the national forest in this State established under the provision of the Weeks Law, so-called, being an act of Congress approved May 23, 1908, and amendments thereto, and codified as 16 U.S.C. § 500, and all funds received by this State from the United States pursuant to 10 U.S.C. § 2665 from the sale of forest products produced on land owned or leased by a military department or the U. S. Department of Transportation shall be distributed as follows:

  1. Funds from national forests under the provisions of the Weeks Law shall first be apportioned by the State Treasurer among the several school districts in which such national forest is or may be situated, in proportion to the area of such national forest in each, as determined by the forest service of the U. S. Department of Agriculture. For purposes of this section, “school district” means a town, city, independent, or unified school district.
  2. Funds from the sale of forest products pursuant to 10 U.S.C. § 2665 shall be apportioned by the State Treasurer among the several towns in a manner proportional to the area in each town of the military installation or facility from which the forest products were produced.
  3. The several sums so apportioned to each school district or town shall be paid over by the State Treasurer, within 60 days after receipt thereof, to the treasurer of such school district or town. Such sums shall be expended for the benefit of the public schools of such school district or for the benefit of the public roads on the part of the recipient town, in addition to the sums required by law to be raised for such purposes, in such manner as may be determined by appropriations duly made by town meetings in such town or school district.

HISTORY: Added 1977, No. 253 (Adj. Sess.), § 2; amended 1983, No. 32 ; 2001, No. 63 , § 278, eff. June 16, 2001.

History

Amendments

—2001. Amended section generally.

—1983. In the introductory paragraph, substituted “May 23, 1908” for “March 1, 1911” preceding “and amendments thereto” and inserted “and codified as 16 U.S.C. § 500” thereafter.

Subdivision (1): Substituted “school districts” for “organized towns” following “several” in the first sentence and added the second sentence.

Subdivision (2): Substituted “school district” for “organized town” following “each” and for “town” following “treasurer of such” in the first sentence, and for “towns” preceding “in addition to” and for “town” following “town meetings in such” in the second sentence, and deleted “and public roads” following “public schools” in the second sentence.

Chapter 15. New Hampshire-Vermont Boundary

The acts from which this chapter is derived became effective May 22, 1935, upon passage of similar legislation by the state of New Hampshire.

§ 611. Perambulation, renewal.

The boundary line between the State of New Hampshire and the State of Vermont shall be perambulated and markers and bounds renewed wherever necessary once in every seven years forever by the Attorney General of this State in conjunction with the Attorney General of the State of New Hampshire or by such person as the Attorney General shall in writing appoint for that purpose.

History

Source.

V.S. 1947, § 66. 1935, No. 15 , § 1.

CROSS REFERENCES

New Hampshire statute relating to perambulation of the boundary line, see N.H. Rev. Stat. § 1:7.

§ 612. Return.

A return of the perambulation shall be made, particularly describing the marks and monuments of such line and their location, which shall be signed by the Attorney General or the person making the same and recorded with the Secretary of State.

History

Source.

V.S. 1947, § 67. 1935, No. 15 , § 2.

CROSS REFERENCES

New Hampshire statute relating to return of the perambulation, see N.H. Rev. Stat. § 1:3.

§ 613. Notice.

The Attorney General of this State shall give notice to the Attorney General of New Hampshire of the time and place of the meeting for such perambulation 30 days before the day of the meeting.

History

Source.

V.S. 1947, § 68. 1935, No. 15 , § 3.

CROSS REFERENCES

New Hampshire statute relating to notice of the meeting for the perambulation, see N.H. Rev. Stat. § 1:2.

§ 614. Expenses of perambulation.

All expenses incurred by representation of this State incidental to such perambulation shall be paid by the State, including one-half of the cost of renewing markers or monuments. The Commissioner of Finance and Management is hereby authorized to draw his or her warrant therefor out of any money in the Treasury not otherwise appropriated.

HISTORY: Amended 1959, No. 328 (Adj. Sess.), § 8(c); 1983, No. 195 (Adj. Sess.), § 5(b).

History

Source.

V.S. 1947, § 69. 1935, No. 15 , § 4.

Revision note—

Reference to “finance director” in the second sentence changed to “commissioner of finance” to conform reference to new title and reorganization of state government pursuant to 1971, No. 92 . See § 2201 et seq. of Title 3.

Substituted “commissioner of finance and management” for “commissioner of finance and information support” in the second sentence in light of Executive Order No. 35-87, which provided for the abolition of the department of finance and information support and the transfer of the duties, responsibilities and authority of the commissioner of that entity to the commissioner of the department of finance and management as established by the order. By its own terms, Executive Order No. 35-87 took effect on July 1, 1987, pursuant to section 2002 of Title 3. For the text of Executive Order No. 35-87, see chapter 1 of Title 3 Appendix.

Amendments

—1983 (Adj. Sess.). Inserted “and information support” following “commissioner of finance” in the second sentence.

—1959 (Adj. Sess.). Substituted “finance director” for “auditor of accounts” preceding “is hereby authorized” in the second sentence.

CROSS REFERENCES

New Hampshire statute relating to expenses of perambulation, see N.H. Rev. Stat. § 1:4.

§ 615. Monuments; notice of construction affecting.

No person, firm, or corporation shall begin or attempt to begin any alteration or improvement of the banks or bed of the Connecticut River, the erection of any building, dam, or other structure upon the banks or bed of such river or any other operations which will affect the waters or flow of such river so as to make the ascertaining of the location of the boundary line between the State of New Hampshire and the State of Vermont difficult without first giving notice thereof to the Attorney General of this State and the Attorney General of New Hampshire.

History

Source.

V.S. 1947, § 70. 1935, No. 16 , § 1.

CROSS REFERENCES

New Hampshire statute relating to notice of construction affecting the Connecticut River, see N.H. Rev. Stat. § 1:8.

§ 616. Inspection.

Upon receipt of such notice, the Attorney General of this State shall communicate with the Attorney General of New Hampshire concerning the subject matter thereof, shall arrange for a joint inspection by such Attorneys General or their representatives of the premises described therein to determine the need of the erection of monuments to permanently mark the location of the boundary line in the area to be affected. If required, such Attorneys General or their representatives shall erect such markers as are necessary.

History

Source.

V.S. 1947, § 71. 1935, No. 16 , § 2.

CROSS REFERENCES

New Hampshire statute relating to inspection to determine the need for monuments, see N.H. Rev. Stat. § 1:9.

§ 617. Permit.

Upon determination of need for or lack of need for a marking of the boundary, the Attorney General of this State shall certify the determination made to the person, firm, or corporation giving notice, and issue a permit that the work upon such alteration, improvement, building, dam, structure, or operation affecting the waters or flow of such river may be begun upon a day certain. Such date shall be fixed as will give a reasonable time for the erection of monuments for the marking of the boundary if a need for such monuments has been determined; otherwise, so as to inconvenience the giver of the notice as little as possible.

History

Source.

V.S. 1947, § 72. 1935, No. 16 , § 3.

CROSS REFERENCES

New Hampshire statute relating to permit for construction affecting the Connecticut River, see N.H. Rev. Stat. § 1:8.

§ 618. Penalty.

Any person, firm, or corporation who shall have failed to give the notice described in section 615 of this title or who, without having received from the Attorney General of this State the certificate and permit described in section 617, shall begin or attempt to begin any alteration or improvement of the banks or bed of the Connecticut River, the erection of any building, dam, or other structure upon the banks or bed of such river or any other operation which will affect the waters or flow of such river shall be fined not more than $5,000.00.

History

Source.

V.S. 1947, § 73. 1935, No. 16 , § 4.

CROSS REFERENCES

New Hampshire statute relating to penalty for unauthorized construction affecting the Connecticut River, see N.H. Rev. Stat. § 1:11.

Chapter 17. Vermont Coordinate System

§ 671. Vermont Coordinate Systems defined.

The systems of plane coordinates which have been established by the National Ocean Service/National Geodetic Survey (formerly the U. S. Coast and Geodetic Survey) or its successors for defining and stating the horizontal positions or locations of points on the surface of the earth within the State of Vermont are hereafter to be known and designated as the “Vermont Coordinate System 1927 and the Vermont Coordinate System 1983.” The term “Vermont Coordinate System” is synonymous with the term “Vermont State Plane Coordinate System.”

HISTORY: Amended 1987, No. 169 (Adj. Sess.), § 1, eff. May 3, 1988; 2007, No. 164 (Adj. Sess.), § 38.

History

Source.

V.S. 1947, § 53. 1945, No. 202 , § 1.

Amendments

—2007 (Adj. Sess.) Added the last sentence.

—1987 (Adj. Sess.). Amended section generally.

§ 672. Coordinates defined.

The plane coordinate values for a point on the earth’s surface, used to express the horizontal position or location of such point on the Vermont Coordinate Systems, shall consist of two distances, expressed in U.S. Survey feet and decimals of a foot when using the Vermont Coordinate System 1927 and expressed in meters and decimals of a meter, or U.S. Survey feet and decimals of a foot when using the Vermont Coordinate System 1983. One of these distances, to be known as the “x-coordinate,” shall give the position in an east-and-west direction; the other, to be known as the “y-coordinate,” shall give the position in a north-and-south direction. These coordinates shall be made to depend upon and conform to plane rectangular coordinate values for the monumented points of the National Spatial Reference System established by the U. S. Coast and Geodetic Survey, its predecessor, or its successors.

HISTORY: Amended 1987, No. 169 (Adj. Sess.), § 2, eff. May 3, 1988; 2007, No. 164 (Adj. Sess.), § 39.

History

Source.

V.S. 1947, § 54. 1945, No. 202 , § 2.

Amendments

—2007 (Adj. Sess.) Inserted “or U.S. Survey feet and decimals of a foot” following “meter,” in the first sentence, and substituted “National Spatial Reference System” for “North American Horizontal Geodetic Control Network” in the third sentence.

—1987 (Adj. Sess.). Rewrote the first and third sentences.

§ 673. Additional definitions.

  1. For purposes of more precisely defining the Vermont Coordinate System 1927, the following definition by the U. S. Coast and Geodetic Survey (now the National Ocean Service/National Geodetic Survey) is adopted:
  2. The Vermont Coordinate System 1927 is a transverse Mercator projection of the Clarke spheroid of 1866, having a central meridian 72 degrees 30 minutes west of Greenwich, on which meridian the scale is set one part in 28,000 too small.  The origin of coordinates is at the intersection of the meridian 72 degrees 30 minutes west of Greenwich and the parallel 42 degrees 30 minutes north latitude.  This origin is given the coordinates: x = 500,000 feet and y = 0 feet.
  3. For purposes of defining the Vermont Coordinate System 1983, the following definition by the National Ocean Service/National Geodetic Survey is adopted. The Vermont Coordinate System 1983 is a transverse Mercator projection of the GRS 80 ellipsoid, having a central meridian 72 degrees 30 minutes west of Greenwich, on which meridian the scale is set one part in 28,000 too small. The origin of coordinates is at the intersection of the meridian 72 degrees 30 minutes west of Greenwich and the parallel 42 degrees 30 minutes north latitude. This origin is given the coordinates: x = 500,000 meters and y = 0 meters.
  4. The position of the Vermont Coordinate System 1983 shall be marked on the ground by existing or future survey stations established in conformity with standards adopted by the National Geodetic Survey or its successors for first-order or second-order work, or both, whose geodetic positions have been rigidly adjusted to the North American Datum 1983 (NAD 1983).

HISTORY: Amended 1987, No. 169 (Adj. Sess.), § 3, eff. May 3, 1988; 1993, No. 6 , § 1.

History

Source.

V.S. 1947, § 55. 1947, No. 1 , § 1. 1945, No. 202 , § 3.

Revision note

—2015. In subsec. (d), substituted “first-order or second-order work, or both” for “first-order and/or second-order work” to conform to V.S.A. style.

Amendments

—1993. Subsection (c): Substituted “GRS 80 ellipsoid” for “Clarke spheroid of 1866” preceding “having” in the first sentence of the second paragraph.

—1987 (Adj. Sess.). Amended section generally.

§ 674. Record.

Coordinates based on either Vermont Coordinate System, purporting to define the position of a point on a land boundary, presented to be recorded in any public land records or deed records shall be accompanied by a specific statement as to their basis and a description of the survey method used to determine them on the record plat or description of the survey.

HISTORY: Amended 1987, No. 169 (Adj. Sess.), § 4, eff. May 3, 1988; 1993, No. 6 , § 2.

History

Source.

V.S. 1947, § 56. 1945, No. 202 , § 4.

Amendments

—1993. Deleted “no” preceding “coordinates” at the beginning of the section and “shall be” following “boundary” and substituted “shall be accompanied by a specific statement as to their basis and a description of the survey method used to determine them on the record plat or description of the survey” for “unless such point is within a reasonable distance of a station established in conformity with the standards prescribed in section 673 of this title” following “deed records”.

—1987 (Adj. Sess.). Substituted “either” for “the” preceding “Vermont”, inserted “a” preceding “land boundary”, and deleted “provided that such limitation may be modified by a duly authorized state agency to meet local conditions” following “673 of this title”.

§ 675. Restriction.

The use of the terms “Vermont Coordinate System 1927” or “Vermont Coordinate System 1983” on any map, report of survey, or other document shall be limited to coordinates based on the Vermont Coordinate Systems as defined in this chapter.

HISTORY: Amended 1987, No. 169 (Adj. Sess.), § 5, eff. May 3, 1988.

History

Source.

V.S. 1947, § 57. 1945, No. 202 , § 5.

Amendments

—1987 (Adj. Sess.). Substituted “terms ‘Vermont Coordinate System 1927’ or ‘Vermont Coordinate System 1983’ ” for “term ‘Vermont Coordinate System’ ” preceding “on any map” and “Systems” for “System” preceding “as defined”.

§ 676. Description.

For the purposes of describing the location of any survey station or land boundary corner in the State of Vermont, it shall be considered a complete, legal, and satisfactory description of such location to give the position of such survey station or land boundary corner on the system of plane coordinates as defined in this chapter.

HISTORY: Amended 1987, No. 169 (Adj. Sess.), § 6, eff. May 3, 1988.

History

Source.

V.S. 1947, § 58. 1945, No. 202 , § 6.

Amendments

—1987 (Adj. Sess.). Deleted “established by the United States Coast and Geodetic Survey” preceding “as defined”.

§ 677. Construction.

Nothing contained in this chapter shall require any purchaser or mortgagee of real property to rely solely on a description, any part of which depends entirely upon the Vermont Coordinate Systems.

HISTORY: Amended 1987, No. 169 (Adj. Sess.), § 7, eff. May 3, 1988.

History

Source.

V.S. 1947, § 59. 1945, No. 202 , § 7.

Amendments

—1987 (Adj. Sess.). Inserted “of real property” following “mortgagee” and substituted “Systems” for “System” following “Coordinate”.

§ 678. Severability.

If any provision of this chapter shall be declared invalid, such invalidity shall not affect any other portion of this chapter which can be given effect without the invalid provision; and to this end, the provisions of this chapter are declared severable.

HISTORY: Added 1987, No. 169 (Adj. Sess.), § 8, eff. May 3, 1988.

§ 679. Transition.

The Vermont Coordinate System 1927 shall not be used for projects commenced after January 1, 2000; the Vermont Coordinate System 1983 will be the sole system for projects commenced after this date.

HISTORY: Added 1987, No. 169 (Adj. Sess.), § 9, eff. May 3, 1988.

Chapter 19. Meridian Lines for Towns and Cities

§ 731. Establishment of meridian lines.

The Governor shall appoint one or more competent persons, one of whom, on application of the selectboard members, shall set out and establish a true meridian line, not less than 100 feet in length, at some convenient place in a town or city, to be selected, provided, and kept by such selectboard members for the free use of all persons.

History

Source.

V.S. 1947, § 3816. P.L. § 3721. 1933, No. 157 , § 3518. G.L. § 6784. P.S. § 5688. V.S. § 4879. 1886, No. 83 .

Revision note

—2013 (Adj. Sess.). Substituted “selectboard members” for “selectmen” in accordance with 2013, No. 161 (Adj. Sess.), § 72.

Substituted “a” for “such” preceding “town or city” because there is no prior reference thereto.

§ 732. Markers; record; compensation.

Under the direction of the person so appointed, the selectboard members shall erect suitable stone or iron posts at the extremities of such meridian line, setting the same firmly in the ground, the north post to be marked with the letter M, and the south post with the initial letter or letters of such town or city. The person so appointed shall make a written description of the same, so that it can be readily known, and cause the same to be recorded in the office of the town or city clerk. Such person shall receive for his or her services from the treasurer of such town or city $8.00 a day and his or her necessary expenses.

History

Source.

V.S. 1947, § 3817. P.L. § 3722. G.L. § 6785. P.S. § 5689. V.S. § 4880. 1886, No. 83 .

Revision note

—2013 (Adj. Sess.). Substituted “selectboard members” for “selectmen” in accordance with 2013, No. 161 (Adj. Sess.), § 72.

Chapter 21. Interstate Cooperation

History

Revision note—

This chapter was formerly set out as chapter 23, but was redesignated as chapter 21 to conform to V.S.A. numbering system.

Subchapter 1. Commission on Interstate Cooperation

§§ 781-784. Repealed. 2009, No. 135 (Adj. Sess.), § 26(1).

History

Former §§ 781-784. Former § 781, relating to establishment of commission; composition, appointment and tenure; chairman, was derived from 1961, No. 75 , § 1.

Former § 782, relating to commission as member of council of state governments, was derived from 1961, No. 75 , § 2.

Former § 783, relating to functions of commission, was derived from 1961, No. 75 , § 3.

Former § 784, relating to allowances for legislative members, was derived from 1961, No. 75 , § 4 and amended by 1963, No. 193 , § 29.

§§ 785-820. [Reserved for future use.]

Subchapter 2. Interchange of State Employees

§ 821. Declaration of policy.

The State of Vermont recognizes that intergovernmental cooperation is an essential factor in resolving problems affecting this State and that the interchange of personnel between governmental agencies at the same or different levels of government is a significant factor in achieving that cooperation.

HISTORY: Added 1967, No. 384 (Adj. Sess.), § 1, eff. March 27, 1968.

§ 822. Definitions.

For the purposes of this subchapter, the following words and phrases have the meanings ascribed to them in this section:

  1. “Sending agency” means any department or agency of the federal government or a state government which sends any employee thereof to another government agency under this subchapter.
  2. “Receiving agency” means any department or agency of the federal government or a state government which receives an employee of another government under this subchapter.

HISTORY: Added 1967, No. 384 (Adj. Sess.), § 2, eff. March 27, 1968.

§ 823. Authority to interchange employees.

  1. Any department, agency, or instrumentality of the State may participate in a program of interchange of employees with departments, agencies, or instrumentalities of the federal government, or another state, as a sending or receiving agency.
  2. The period of individual assignment or detail under an interchange program shall be subject to approval of the Commissioner of Human Resources for Executive departments, the Court Administrator for the Judiciary, and the Joint Rules Committee for the Legislature. Details relating to any matter covered in this subchapter may be the subject of an agreement between the sending and receiving agencies. Elected officials shall not be assigned from a sending agency nor detailed to a receiving agency.

HISTORY: Added 1967, No. 384 (Adj. Sess.), § 3, eff. March 27, 1968; amended 1997, No. 66 (Adj. Sess.), § 62, eff. Feb. 20, 1998; 2003, No. 156 (Adj. Sess.), § 15.

History

Amendments

—2003 (Adj. Sess.). Subsection (b): Substituted “commissioner of human resources” for “commissioner of personnel”.

—1997 (Adj. Sess.). Subsection (b): Substituted “commissioner of personnel for executive departments, the court administrator for the judiciary and the joint rules committee for the legislature” for “emergency board”.

§ 824. Status of employees of this State.

  1. Employees of a sending agency participating in an exchange of personnel as authorized in section 823 of this title may be considered during that participation to be on detail to regular work assignment of the sending agency.
  2. Employees who are on detail are entitled to the same salary and benefits to which they would otherwise be entitled and shall remain employees of the sending agency for all other purposes except that the supervision of their duties during the period of detail may be governed by agreement between the sending agency and the receiving agency.
  3. Any employee who participates in an exchange under the terms of this section who has a disability or dies as a result of personal injury arising out of and in the course of an exchange, or sustained in performance of duties in connection therewith, shall be treated, for the purposes of the sending agency’s employee compensation program, as an employee, as defined in the law creating that program, who has sustained the injury in the performance of his or her duty, but shall not receive benefits under that law for any period for which he or she is entitled to and elects to receive similar benefits under the receiving agency’s employee compensation program.

HISTORY: Added 1967, No. 384 (Adj. Sess.), § 4, eff. March 27, 1968; amended 2013, No. 96 (Adj. Sess.), § 4.

History

Amendments

—2013 (Adj. Sess.). Subsection (c): Substituted “has a” for “suffers” and “dies” for “death”, and inserted “or her” and “or she”.

CROSS REFERENCES

Workers’ compensation generally, see 21 V.S.A. § 601 et seq.

§ 825. Travel expenses of employees of this State.

A sending agency in this State may, in accordance with the travel regulations of the agency, pay the travel expenses of employees assigned to a receiving agency on either a detail or leave basis, but shall not pay the travel expenses of those employees incurred in connection with their work assignments at the receiving agency. During the period of assignment, the sending agency may pay a daily allowance to the employee on assignment or detail.

HISTORY: Added 1967, No. 384 (Adj. Sess.), § 5, eff. March 27, 1968.

§ 826. Status of employees of other governments.

  1. When any unit of government of this State acts as a receiving agency, employees of the sending agency who are assigned under this subchapter may be considered to be on detail to the receiving agency.
  2. Appointments of persons so assigned may be made without regard to the laws or regulations governing the selection of employees of the receiving agency.  Such a person shall be in the unclassified service of the State.
  3. Employees who are detailed to the receiving agency shall not by virtue of that detail be considered to be employees thereof, except as provided in subsection (d) of this section, nor shall they be paid a salary or wage by the receiving agency during the period of their detail.  The supervision of the duties of those employees during the period of detail may be governed by agreement between the sending agency and the receiving agency.
  4. Any employee of a sending agency assigned in this State who has a disability or dies as a result of personal injury arising out of and in the course of that assignment, or sustained in the performance of duties in connection therewith, shall be treated for the purpose of the receiving agency’s employee compensation program, as an employee, as defined in its law, who has sustained the injury in the performance of that duty, but shall not receive benefits under that law for any period for which he or she elects to receive similar benefits as an employee under the sending agency’s employee compensation program.

HISTORY: Added 1967, No. 384 (Adj. Sess.), § 6, eff. March 27, 1968; amended 2013, No. 96 (Adj. Sess.), § 4.

History

Amendments

—2013 (Adj. Sess.). Subsection (d): Substituted “has a” for “suffers” and “dies” for “death”, and inserted “or she”.

CROSS REFERENCES

Workers’ compensation generally, see 21 V.S.A. chapter 9.

§ 827. Travel expenses of employees of other governments.

A receiving agency in this State may, in accordance with the travel regulations of the agency, pay travel expenses of persons assigned thereto under this subchapter during the period of those assignments on the same basis as if they were regular employees of the receiving agency.

HISTORY: Added 1967, No. 384 (Adj. Sess.), § 7, eff. March 27, 1968.

Chapter 23. Native American Indian People

History

Amendments

—2009 (Adj. Sess.) 2009, No. 107 (Adj. Sess.), § 2, eff. May 14, 2010, substituted “Native American Indian” for “Abenaki” in the chapter heading.

§ 851. Findings.

The General Assembly finds that:

  1. At least 1,700 Vermonters claim to be direct descendants of the several indigenous Native American peoples, now known as Western Abenaki tribes, who originally inhabited all of Vermont and New Hampshire, parts of western Maine, parts of southern Quebec, and parts of upstate New York for hundreds of years, beginning long before the arrival of Europeans.
  2. There is ample archaeological evidence that demonstrates that the Missisquoi and Cowasuck Abenaki were indigenous to and farmed the river floodplains of Vermont at least as far back as the 1100s A.D.
  3. The Western Abenaki, including the Missisquoi, have a very definite and carefully maintained oral tradition that consistently references the Champlain valley in western Vermont.
  4. State recognition confers official acknowledgment of the long-standing existence in Vermont of Native American Indians who predated European settlement and enhances dignity and pride in their heritage and community.
  5. Many contemporary Abenaki families continue to produce traditional crafts and intend to continue to pass on these indigenous traditions to the younger generations. In order to create and sell Abenaki crafts that may be labeled as Indian- or Native American-produced, the Abenaki must be recognized by the State of Vermont.
  6. According to a public affairs specialist with the U.S. Bureau of Indian Affairs (BIA), State recognition of Indian tribes plays a very small role with regard to federal recognition. The only exception is when a state recognized a tribe before 1900.
  7. At least 15 other states have recognized their resident indigenous people as Native American Indian tribes without any of those tribes previously or subsequently acquiring federal recognition.
  8. State-recognized Native American Indian tribes and their members will continue to be subject to all laws of the State, and recognition shall not be construed to create any basis or authority for tribes to establish or promote any form of prohibited gambling activity or to claim any interest in land or real estate in Vermont.

HISTORY: Added 2005, No. 125 (Adj. Sess.), § 1, eff. May 3, 2006; amended 2009, No. 107 (Adj. Sess.), § 1, eff. May 14, 2010.

History

Amendments

—2009 (Adj. Sess.) Added new subdiv. (4), redesignated former subdiv. (4) as present subdiv. (5), deleted former subdiv. (5), and added subdivs. (6)-(8).

§ 852. Vermont Commission on Native American Affairs established; authority.

  1. In order to recognize the historic and cultural contributions of Native Americans to Vermont, to protect and strengthen their heritage, and to address their needs in State policy, programs, and actions, there is hereby established the Vermont Commission on Native American Affairs (the “Commission”).
  2. The Commission shall be composed of nine members appointed by the Governor for staggered two-year terms from a list of candidates compiled by the Division for Historic Preservation. The Governor shall appoint members who have been residents of Vermont for a minimum of three years and reflect a diversity of affiliations and geographic locations in Vermont. A member may serve for no more than two consecutive terms, unless there are insufficient eligible candidates. The Division shall compile a list of candidates from the following:
    1. Recommendations from Native American communities residing in Vermont. Once a Native American Indian tribe has been recognized under this chapter, a qualified candidate recommended by that tribe shall have priority for appointment to fill the next available vacancy on the Commission.
    2. Individuals who apply to the Division for Historical Preservation. Candidates shall indicate their residence and Native American affiliation.
  3. The Commission shall:
    1. elect a chair each year;
    2. provide technical assistance and an explanation of the process to applicants for State recognition;
    3. compile and maintain a list of professionals and scholars for appointment to a review panel;
    4. appoint a three-member panel acceptable to both the applicant and the Commission to review supporting documentation of an application for recognition and advise the Commission of its accuracy and relevance;
    5. review each application, supporting documentation and findings of the review panel, and make recommendations for or against State recognition to the legislative committees;
    6. assist Native American Indian tribes recognized by the State to:
      1. secure assistance for social services, education, employment opportunities, health care, and housing;
      2. develop and market Vermont Native American fine and performing arts, craft work, and cultural events; and
    7. develop policies and programs to benefit Vermont’s Native American Indian population within the scope of the Commission’s authority.
  4. During fiscal year 2011, the Commission shall meet at least three times a year and at any other times at the request of the Chair and Commission members shall receive a per diem pursuant to 32 V.S.A. § 1010 . In fiscal year 2012 and thereafter, the Commission shall meet as needed but members shall receive a per diem pursuant to 32 V.S.A. § 1010 no more than six times a year. The Division for Historic Preservation within the Agency of Commerce and Community Development shall provide administrative support to the Commission, including providing communication and contact resources.
  5. The Commission may seek and receive funding from federal and other sources to assist with its work.

HISTORY: Added 2005, No. 125 (Adj. Sess.), § 1, eff. May 3, 2006; amended 2009, No. 107 (Adj. Sess.), § 3, eff. May 14, 2010; 2011, No. 3 , § 99.

History

Revision note

—2009 (Adj. Sess.) Redesignated the final paragraph of subsection (b) as subdivision (b)(2) to conform to V.S.A. style and for purposes of clarity.

Amendments

—2011. Subsection (d): Amended generally.

—2009 (Adj. Sess.) Rewrote subsecs. (b) and (c), and in subsec. (d), inserted “division of historic preservation within the” preceding “agency”, deleted “and the department of education” preceding “shall provide” and added “including providing communication and contact resources” following “commission” in the second sentence.

Retroactive effective date of 2011 amendment. 2011, No. 3 , § 103(c) provides that the amendment to this section by that act shall take effect on July 1, 2010.

§ 853. Criteria and process for State recognition of Native American Indian tribes.

  1. For the purposes of this section:
    1. “Applicant” means a group or band seeking formal State recognition as a Native American Indian tribe.
    2. “Legislative committees” means the House Committee on General, Housing and Military Affairs and the Senate Committee on Economic Development, Housing and General Affairs.
    3. “Recognized” or “recognition” means acknowledged as a Native American Indian tribe by the Vermont General Assembly.
    4. “Tribe” means an assembly of Native American Indian people who are related to each other by kinship and who trace their ancestry to a kinship group that has historically maintained an organizational structure that exerts influence and authority over its members.
  2. The State recognizes all individuals of Native American Indian heritage who reside in Vermont as an ethnic minority. This designation does not confer any status to any collective group of individuals.
  3. In order to be eligible for recognition, an applicant must file an application with the Commission and demonstrate compliance with subdivisions (1) through (8) of this subsection which may be supplemented by subdivision (9) of this subsection:
    1. A majority of the applicant’s members currently reside in a specific geographic location within Vermont.
    2. A substantial number of the applicant’s members are related to each other by kinship and trace their ancestry to a kinship group through genealogy or other methods. Genealogical documents shall be limited to those that show a descendency from identified Vermont or regional native people.
    3. The applicant has a connection with Native American Indian tribes and bands that have historically inhabited Vermont.
    4. The applicant has historically maintained an organizational structure that exerts influence and authority over its members that is supported by documentation of the structure, membership criteria, the names and residential addresses of its members, and the methods by which the applicant conducts its affairs.
    5. The applicant has an enduring community presence within the boundaries of Vermont that is documented by archaeology, ethnography, physical anthropology, history, folklore, or any other applicable scholarly research and data.
    6. The applicant is organized in part:
      1. to preserve, document, and promote its Native American Indian culture and history, and this purpose is reflected in its bylaws;
      2. to address the social, economic, political, or cultural needs of the members with ongoing educational programs and activities.
    7. The applicant can document traditions, customs, oral stories, and histories that signify the applicant’s Native American heritage and connection to their historical homeland.
    8. The applicant has not been recognized as a tribe in any other state, province, or nation.
    9. Submission of letters, statements, and documents from:
      1. municipal, State, or federal authorities that document the applicant’s history of tribe-related business and activities;
      2. tribes in and outside Vermont that attest to the Native American Indian heritage of the applicant.
  4. The Commission shall consider the application pursuant to the following process which shall include at least the following requirements:
    1. The Commission shall:
      1. provide public notice of receipt of the application and supporting documentation;
      2. hold at least one public hearing on the application; and
      3. provide written notice of completion of each step of the recognition process to the applicant.
    2. Established appropriate time frames that include a requirement that the Commission and the review panel shall complete a review of the application and issue a determination regarding recognition within one year after an application and all the supporting documentation have been filed, and if a recommendation is not issued, the Commission shall provide written explanation to the applicant and the legislative committees of the reasons for the delay and the expected date that a decision will be issued.
    3. A process for appointing a three-member review panel for each application to review the supporting documentation and determine its sufficiency, accuracy, and relevance. The review panel shall provide a detailed written report of its findings and conclusions to the Commission, the applicant, and legislative committees. Members of each review panel shall be appointed cooperatively by the Commission and the applicant from a list of professionals and academic scholars with expertise in cultural or physical anthropology, Indian law, archaeology, Native American Indian genealogy, history, or another related Native American Indian subject area. If the applicant and the Commission are unable to agree on a panel, the State Historic Preservation Officer shall appoint the panel. No member of the review panel may be a member of the Commission or affiliated with or on the tribal rolls of the applicant.
    4. The Commission shall review the application, the supporting documentation, the report from the review panel, and any other relevant information to determine compliance with subsection (b) of this section and make a determination to recommend or deny recognition. The decision to recommend recognition shall require a majority vote of all eligible members of the Commission. A member of the Commission who is on the tribal roll of the applicant is ineligible to participate in any action regarding the application. If the Commission denies recognition, the Commission shall provide the applicant and the legislative committees with written notice of the reasons for the denial, including specifics of all insufficiencies of the application.
    5. The applicant may file additional supporting documentation for reconsideration within one year after receipt of the notice of denial.
    6. An applicant may withdraw an application any time before the Commission issues a recommendation, and may not file a new application for two years following withdrawal. A new application and supporting documentation shall be considered a de novo filing, and the Commission shall not consider the withdrawn application or its supporting documentation.
    7. [Repealed.]
    8. All proceedings, applications, and supporting documentation shall be public except material exempt pursuant to subdivision 317(c)(40) of this title. Any documents relating to genealogy submitted in support of the application shall be available only to the three-member review panel.
  5. An applicant for recognition shall be recognized as follows:
    1. by approval of the General Assembly;
    2. two years after a recommendation to recognize a tribe by the Commission is filed with the legislative committees, provided the General Assembly took no action on the recommendation.
  6. A decision by the Commission to recommend denial of recognition is final unless an applicant or a successor of interest to the applicant that has previously applied for and been denied recognition under this chapter provides new and substantial documentation and demonstrates that the new documentation was not reasonably available at the time of the filing of the original application.
  7. Vermont Native American Indian bands and tribes and individual members of those bands and tribes remain subject to all the laws of the State.
  8. Recognition of a Native American Indian tribe shall not be construed to create, extend, or form the basis of any right or claim to land or real estate in Vermont or right to conduct any gambling activities prohibited by law, but confers only those rights specifically described in this chapter.

HISTORY: Added 2005, No. 125 (Adj. Sess.), § 1, eff. May 3, 2006; amended 2009, No. 107 (Adj. Sess.), § 4, eff. May 14, 2010; 2013, No. 142 (Adj. Sess.), § 80, eff. July 1, 2014.

History

Revision note

—2015. In subdiv. (d)(8), substituted “subdivision 317(c)(40)” for “subdivision 317(40)” for purposes of clarity.

Amendments

—2013 (Adj. Sess.). Subdivision (d)(7): Repealed.

—2009 (Adj. Sess.) Amended section generally.

§ 853a. Recognition of Elnu Abenaki tribe.

The Elnu Abenaki tribe has filed an application for tribal recognition with the Vermont Commission on Native American Affairs and has complied with the recognition requirements contained in subdivisions 853(c)(1)-(9) of this title and is hereby recognized by the State of Vermont as a Native American Indian tribe.

HISTORY: Added 2011, No. 9 , § 1, eff. April 22, 2011.

§ 854. Recognition of Nulhegan Band of the Coosuk Abenaki Nation.

The Nulhegan Band of the Coosuk Abenaki Nation has filed an application for tribal recognition with the Vermont Commission on Native American Affairs and has complied with the recognition requirements contained in subdivisions 853(c)(1)-(9) of this title and is hereby recognized by the State of Vermont as a Native American Indian tribe.

HISTORY: Added 2011, No. 8 , § 1, eff. April 22, 2011.

§ 855. Recognition of Koasek Abenaki of the Koas.

The Koasek Abenaki of the Koas has filed an application for tribal recognition with the Vermont Commission on Native American Affairs and has complied with the recognition requirements contained in subdivisions 853(c)(1)-(9) of this title and is hereby recognized by the State of Vermont as a Native American Indian tribe.

HISTORY: Added 2011, No. 106 (Adj. Sess.), § 1, eff. May 7, 2012.

§ 856. Recognition of Missisquoi, St. Francis-Sokoki band.

The Missisquoi, St. Francis-Sokoki Band has filed an application for tribal recognition with the Vermont Commission on Native American Affairs and has complied with the recognition requirements contained in subdivisions 853(c)(1)-(9) of this title and is hereby recognized by the State of Vermont as a Native American Indian tribe.

HISTORY: Added 2011, No. 105 (Adj. Sess.), § 1, eff. May 7, 2012.