By Mike Donoghue
Correspondent
BURLINGTON, Vt. — Nine Vermont municipalities, including Northfield and Shrewsbury, are being sued because of a claim they have been prohibiting or restricting access to public government records, citing COVID-19 concerns, according to a lawsuit filed in Vermont Superior Court in Burlington.
The lawsuit has major statewide implications because the final ruling could impact how taxpayers can get proper access to all kinds of public records stored in town halls across Vermont. It also could determine how more than 240 municipal clerks and their staffs will be required to provide service during the pandemic.
The communities named in the lawsuit are Bolton, Georgia, Lincoln, Milton, Northfield, Plainfield, Shrewsbury, South Burlington and Whiting.
A hearing is planned for Friday in Superior Court in Burlington on the lawsuit filed by a group of lawyers that are involved in helping people buying and selling real estate and the need to secure title insurance for properties.
The hearing was initially to seek an emergency access order for the plaintiffs, but the defendants have filed a motion to dismiss. Judge Samuel Hoar on Tuesday ordered the hearing switched to a “status conference.”
The plaintiffs, the Connecticut Attorneys Title Insurance Company, which has its Vermont office in South Burlington, maintains that to complete real estate sales the lawyers need full access to the public records for research. Those searches of public records are required to ensure real estate transactions can happen in a timely fashion, CATIC stated.
The plaintiffs also believe the Vermont municipal clerks have gone far beyond an Executive Order issued by Gov. Phil Scott in June for limitations to government buildings as consequence of COVID-19, the lawsuit stated.
“This has resulted in a scattershot approach to the opening of municipal land records that is highly inconsistent across the state, with access to many municipal land records not being available during reasonable or customary hours,” the lawsuit noted.
In some cases there has been a complete shutdown of municipal town offices, and that puts the planned land transfers in jeopardy, the lawsuit noted. Other towns sued in the lawsuit have kept their doors open, but in some cases required appointments.
Nobody answered the phone at the Northfield Town Clerk’s office on Wednesday. Municipal Manager Jeff Schulz said Northfield has continued to provide services as best it could during the COVID-19 pandemic. He said Town Clerk Kim Pedley was out, but her assistant has been responding to requests.
He said the municipal building was shut down initially when the COVID surge first hit. He said the clerk’s office continued to do recordings and other work. Schulz said there was some initial difficulty early on, but things settled down.
He said Northfield used appointments to try to keep people safe, but eventually opened the building with strict restrictions. With the latest surge in Vermont, Northfield has resumed appointments.
Also, the town of Plainfield was sued, and Assistant Town Clerk Carol Smith found herself named as a co-defendant for some unknown reason instead of her boss, Town Clerk Linda Wells.
Smith said Plainfield, a town of about 1,300 residents, has continued to serve the public. She did find it ironic that the lawyers claim the town offices were closed, when the lawyers had their own offices closed to the public during to COVID-19.
“Everything was pretty much shut down,” she said. “We have carried on over and above and received thanks from the public.”
She said the clerk’s office is not open to the general public because of the surge in COVID cases in Vermont, but records can still be available by checking with the clerk’s office.
Smith noted the town land records back to 1975 were recently scanned and digitalized to provide greater access. She said the clerk’s office will mail or leave records outside the office for pick-up. The requester can either drop in the money or mail in their check for the records.
Smith said she took to working on Saturdays to reduce the number of people in the office during the week.
The chief concerns
In most cases the municipal clerk is elected by voters and is independent, while in some towns the clerk is appointed and can be restricted by Select Boards or management.
The lawsuit notes the defendants have taken one or more of the following restrictive practices since COVID:
— Reduced hours of operation.
— Reduced hours to conduct record searches.
— Reduced access to physical portions of the clerk’s office, including the vault where records are stored.
— Reduced access to indexing systems.
— And reduced access to physical touching of the recorded public documents.
Vermont Public Records Law provides “the files and records in the office of the clerk shall be available for inspection upon proper request at all reasonable hours, the lawsuit noted. The public “may inspect a public record during customary business hours,” it stated.
The governor’s Executive Order stated, “for the sake of clarity, municipal services shall be made available to Vermonters seeking to perform authorized functions such as recordings required for real estate, financial and other legal transactions ….”
Attorney Andy Mikell, who oversees the Vermont office, said in a video message the eight towns and one city named in the civil lawsuit are representative of the statewide problem. Mikell said other communities and their clerks could have been named in the lawsuit, but the plaintiffs just wanted to provide the court the flavor of the problem throughout the state.
“Defendants, as well as other municipalities and municipal clerks, have failed to make their land and zoning records available for inspection upon proper request ‘at all reasonable hours’ as mandated” by Vermont law, the lawsuit noted.
The lawyers maintain they need access to the records to be able to locate deeds; real estate writs of executions; information on hazardous waste sites, waste storage, treatment and disposal sites; underground storage tanks; bylaws on municipal land use and any denials for permits.
The plaintiffs are represented by former Williston Select Board member Chris Roy, a member of the Burlington law firm Downs Rachlin Martin.
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