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Nanny State? Vermont Municipalities Want More Leeway to Make Their Own Rules

By

MARC NADEL
  • Marc Nadel

A couple of years ago, Winooski City Manager Jessie Baker had a frustrating problem. A staffer was performing all the duties of a human resource director, but Baker could not give her the job title because it was not in the city's charter.

Winooski would need to update the document through a lengthy process that required both a town-wide vote and legislative approval. By the time the issue came up for a vote last November, the staffer had already "left for another position where she could have access to that title," Baker told Seven Days.

Voters did ultimately support making the numerous charter changes, including the administrative one. But the Onion City is one of 10 municipalities seeking to amend their local charters this legislative session — and most are still waiting for state lawmakers' stamp of approval.

Some changes involve controversy, such as ongoing attempts to ban no-cause evictions and establish ranked-choice voting in Burlington, and proposals to allow noncitizens to vote in city elections in Winooski and Montpelier. Others are far more routine, such as the only charter change lawmakers have approved so far this session: a request from the Town of Barre to convert its elected treasurer and assessor positions into appointed ones and allow the selectboard to establish a personnel policy for town employees.

Such paternalism has long defined the relationship between the legislature and municipalities, according to the Vermont League of Cities & Towns, which has spent decades lobbying for its members to have more freedom to govern themselves.

Lawmakers have always resisted giving up their sway over what municipalities can and cannot do, arguing that they exercise a necessary check on local powers. But critics of this top-down approach say it fails to recognize how local officials are increasingly asked to tackle a wide range of complex problems, from the climate crisis and environmental issues to policing reforms and equity. With the pandemic once again showing how vital it is for governments to swiftly respond to challenges, many argue that the time is ripe for change.

"We need to be more nimble," said Montpelier Mayor Anne Watson.

Most Vermont cities and towns simply follow state law in their local governance. But about 85 municipalities have adopted local charters that establish rules and governing structures unique to their communities. Any municipality can adopt a local charter, though those that do tend to be concentrated in areas with bigger populations where local governments offer a wider range of services.

To create and amend these documents, municipalities must hold at least two public hearings and a town-wide vote. The proposals are then submitted in the form of a bill to the legislature and must go through the typical process, requiring approval from both chambers before heading to the governor's desk. Gov. Phil Scott has not vetoed any such requests during his five years in office but has expressed concern about the noncitizen voting measures now pending in the legislature.

Known as Dillon's Rule, Vermont's legislative oversight system traces back to a pair of 19th-century rulings by Iowa Supreme Court justice John Dillon, who concluded that municipalities "owe their origin to, and derive their powers and rights wholly from, the legislature." In other words: Municipalities should only be allowed to perform actions that the legislature has sanctioned.

Dillon lived during a time of rampant corruption, and he harbored a great distrust of local government. He once asserted that people with the highest intelligence and moral character did not serve in local offices.

Modern supporters of Dillon's doctrine don't go quite as far, but they do believe that the state still plays an important role in fostering uniformity — and preventing the locals from going rogue.

Rep. Sarah Copeland Hanzas - FILE: JEB WALLACE-BRODEUR
  • File: Jeb Wallace-brodeur
  • Rep. Sarah Copeland Hanzas

"You don't want one municipality to decide that they're going to balance their town highway budget on traffic fines and decide that they're going to lower all of their speed limits down to 15 miles an hour," said Rep. Sarah Copeland Hanzas (D-Bradford), who chairs the House Government Operations Committee.

Critics of Dillon's Rule, on the other hand, say it gives state legislatures too much power to meddle in local issues and makes it harder for municipalities to come up with creative solutions to the buffet of problems they face.

While most states still follow some form of Dillon's Rule, a handful employ an alternative model known as home rule, which permits municipalities to pass whatever laws they see fit so long as they don't defy the state or federal constitution.

The League of Cities & Towns is not advocating for a switch to home rule, in part because it likely would never be approved here, said Karen Horn, the organization's director of public policy and advocacy. "What we're hoping to do is have the legislature cede some control to municipalities for decisions that affect only their community," Horn said.

According to Horn, Statehouse micromanagement has waxed and waned over the years. Some legislative sessions have taken a more laissez-faire approach to charter changes, largely accepting the will of the voters. Others, particularly the current crop of House lawmakers, are "intent on investigating every single detail," she said, often rewriting provisions to their liking.

"The biggest issue for us is that legislators who haven't even necessarily been to a particular community are deciding what needs to happen in Colchester, or in Winooski, or in Killington," Horn said. "That's a problem for people who live in that town and the people trying to govern that town."

Copeland Hanzas disputed that characterization and said she and her colleagues never judge charter proposals based on whether they would want to adopt such ideas in their communities. Rather, they look to ensure that local governing boards adequately warned and explained the proposals, then consider whether the changes conflict with state law or would result in any unintended consequences. If all three bars are met, Copeland Hanzas said, the proposal typically moves forward.

"It's not my experience that the legislature weighs in with a particularly heavy hand," she said.

Some local officials say their experience suggests otherwise. When Bennington undertook a major rewrite of its charter several years ago, the House Government Operations Committee was "terribly difficult" to work with, said Town Manager Stuart Hurd.

"I mean, they were very pleasant, but they really gutted the work we did," Hurd said. "It left a sour taste in our mouth." 

The legislative committee took issue with how Bennington warned its vote, arguing that the town erred by not listing each of the individual changes on the ballot, which included everything from a new local option tax and an expansion of the town's downtown improvement district to attendance requirements for selectboard members.

Bennington officials said that doing so would have forced them to print 10-page ballots. They instead provided a summary in each voting booth and made the new charter available to those interested — efforts the Vermont Secretary of State's Office determined were enough. Lawmakers, though, took it upon themselves to strike out several of the changes, convinced that voters couldn't have possibly understood what they were being asked.

When the legislature finally approved Bennington's revised charter, it looked far different from the one voters approved. "I may get shot for saying this," Hurd said, "but it seems like [the legislature] doesn't trust local selectboards to make decisions."

Sometimes, entire proposals are scrapped. In 2014, Burlington voters approved a series of gun-control charter changes that would have allowed police to confiscate guns from suspected domestic abusers, prohibited them at establishments with a liquor license and required that they be stored behind a lock. The city's attorney said at the time that she believed the changes cleared any constitutional hurdles. But legislative attorneys still questioned the proposal's legality, and lawmakers never took action on it.

There have been a number of efforts to grant municipalities more autonomy in recent years. Sen. Jeanette White (D-Windham), who chairs the Senate Government Operations Committee, introduced a bill in 2019 that would have created a municipal self-governance pilot program. It would have allowed up to 10 towns to send charter change requests to a new commission, which would have vetted the proposals and made recommendations to the legislature. Supporters of the idea thought it would make the process less political and hoped that the commission might one day have final say.

The pilot was based on a similar program in West Virginia. Lawmakers there expanded it statewide after determining that the program helped municipalities save money, time and resources.

The Vermont bill passed in the Senate 21-8 but was never taken up in the House; White has not reintroduced it this biennium.

To continue the self-governance conversation, the League of Cities & Towns has encouraged some of its member municipalities to pass charter changes that would allow them to adopt any provision from any other charter around the state, as long as their community voted in favor of it. Supporters viewed it as a rational compromise, and voters in four municipalities approved the language within the last year: Brattleboro, Springfield, Williston and Winooski. 

"It isn't asking the legislature to adjust the calibration of Dillon's Rule and home rule," said Peter Elwell, Brattleboro's town manager. "It's simply saying, 'If you have found this to be acceptable in Springfield, why shouldn't it also be acceptable in Brattleboro?'"

But when the first charter containing the provision reached the House Government Operations Committee earlier this month, legislative counsel deemed it an unconstitutional attempt to usurp the legislature's authority, and lawmakers nixed it.

Rep. John Gannon (D-Wilmington), vice chair of the committee and a member of his local selectboard, told Seven Days he thought the proposals gave municipalities too much latitude. He wondered whether they would be able to pick certain words from various charters and come up with "an entirely new provision."

With the legislature expected to adjourn later this month, most of the nine pending charter changes will not make it to the governor's desk this session. Four are still in the House Government Operations Committee. At least one of those — a request to change the makeup of the selectboard in the Town of Essex — appears to be moot given the failure of a recent merger vote there, but the rest are still in play, including Burlington's. Meanwhile, only two of the five that have cleared the House are expected to come up for a Senate vote this year: Winooski's and Underhill's

The Senate Government Operations Committee is now working with the League of Cities & Towns to identify certain municipal changes that could potentially skip the legislative review process. The organization has included more than 20 issues on its wish list, from local option taxes and sidewalk ordinances to voting eligibility expansions and selectboard attendance requirements.

Both Gannon and Copeland Hanzas said they are open to the discussion. But neither seemed in any rush to let go of much control.

"You can't just have a group of five members of a legislative body in a town making decisions about changing how the town is going to govern itself," Copeland Hanzas said. "That's not really democracy." She said the legislature ensures that voters had a "voice" in the process.

Such comments do little to dispel accusations of paternalism. Baker, the Winooski city manager, said some lawmakers seem to forget that they were elected by the same people who elect local officials.

"The devaluing of local elected officials is really unfortunate," said Baker, who will become South Burlington's city manager this summer.

Sen. White agreed. She said many lawmakers previously served on local boards before moving to the Statehouse, "but for some reason, when we get to the legislature, we suddenly don't trust towns."