To the Voters of Cavendish Fire District Number Two,
I know that there have been some concerns raised about the validity of the posting and the publishing of the warning for the upcoming informational meeting on Monday the 16th and Australian ballot vote scheduled for the 24th of November. As your elected moderator, I've spoken at length with Mr. Jean Paul Isabelle, the Elections Administrator for the Vermont Secretary of State's office. With his permission, Mr. Isabelle's email correspondence with me about this matter is available for public viewing with the town clerk. If you would like to speak with Mr. Isabelle for yourself, please feel free to call the Secretary of State's office.
After discussing it with Mr. Isabelle and conferring with several elected officials, past and present, here is my understanding of the situation:
In paragraph (c) of 17 § 2641 VSA – Notice and Warning requirements, it states: “No such warning shall be required for municipal informational meetings at which no voting is to take place.” So no matter what deficiencies there may or may not be in the warning, the informational meeting is legally valid since it has no warning requirements and no votes will be taken.
Which brings us to the question of the validity of the warning for the ballot. At this point it seems to have failed to meet the requirement of sufficient time between the initial posting and the vote. Note well, this is not due to the publishing date of the warning in the paper of record. The publishing requirements for a “bond-like” action are different from the posting requirements for the same action. It is easy to see how the confusion occurred. The posting requirement is:
The legislative body of a municipality shall warn a meeting by posting a warning and notice in at least two public places in the municipality, and in or near the town clerk's office, not less than 30 nor more than 40 days before the meeting.
There is no publishing requirement usually, but because this is a “bond-like” vote there are additional publishing requirements, but they don't have to be 30 day in advance. The publishing of the warning must be in the paper of record for three consecutive weeks; on the same day of the week; with not less than 5, nor more than 10, days in between the last publishing and the vote. Although great effort was made to meet the specific publishing requirements, the posting requirement appears to be 3 days insufficient.
There are two ways that a municipality, Cavendish Fire District Number 2 in this case, can remedy this situation.The first of which is found in VSA 17 § 2662 – Validation of Municipal Meetings, which reads:
When any of the requirements as to notice or warning of an annual or special municipal meeting have been omitted or not complied with, the omission or noncompliance, if the meeting and the business transacted at it is otherwise legal and within the scope of the municipal powers, may be corrected and legalized by vote at a regular meeting or special meeting of the municipality called and duly warned for that purpose.
I specifically asked, and it was confirmed to me, by Mr. Isabelle, that for the purposes of validation, a vote by Australian ballot could be treated the same as the “meeting” mentioned above. So, the Prudential Board can set a legally warned special meeting, with no publishing requirement, to validate the vote, after the vote has been taken.
The second way that the Prudential Board could remedy the noncompliant warning would be to cancel the vote scheduled for the 24th and then post and publish the warning for a new ballot. According to my conversation with Mr. Isabelle, there still would be no requirement to publish the signatures of the Prudential Board members, or have the Fire District clerk “attest” to the warning. Although a new vote would usually be the preferable option to take, there are some significant financial considerations to this action. There is the added expense for another publishing of the warning, and the price for the proposed fire apparatus is set to increase on the 1st of December, so the amount to be voted on may have to be increased. This latter factor does at least explain, if not fully excuse, the mistake-causing haste in scheduling the vote.
Therefore, it is my plan at the scheduled and fully legal informational meeting, at which no votes will be taken, to “poll” the assembled voters as to what their preferred option for the Prudential Board to utilize. This will not be an official vote, nor will it be binding on the Prudential Board, but it will be, in my opinion, the best legal option.
I'm grateful to be able to serve you in this capacity,
Rev. Abraham Gross
Moderator, Cavendish Fire District Number Two