Lawsuit claims Lincoln, Whiting are restricting public records

BURLINGTON — Attorneys working on business involving real estate transactions are suing nine Vermont municipalities, including the Addison County towns of Lincoln and Whiting, for prohibiting or restricting access to public government records by claiming COVID-19 concerns.
The lawsuit, filed in Vermont Superior Court in Burlington, has major statewide implications because the final ruling could affect how more than 240 municipal clerks will be required during the pandemic to allow taxpayers to have access to all kinds of public records stored in town halls throughout Vermont.
A hearing is planned for Friday in Superior Court in Burlington on the lawsuit filed by a group of lawyers involved in helping people buy and sell real estate, who need to secure title insurance for the properties.
The Connecticut Attorneys Title Insurance Company, which has its Vermont office in South Burlington, maintains that to complete the 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 said.
The plaintiffs believe the Vermont municipal clerks have gone far beyond Gov. Phil Scott’s June executive order limiting access to government buildings due to COVID-19. “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, putting the planned land transfers in jeopardy, the lawsuit noted.
We could not reach Lincoln Town Clerk Sally Ober on Tuesday. The town website says town offices are closed to walk-in business due to COVID-19, but asks interested parties to email or call for assistance.
The Lincoln selectboard agreed Tuesday night to use a Burlington law firm that other towns have hired to fight the case. Selectboard Chairman Bill Finger said the group of towns using Stitzel, Page & Fletcher will split the legal bill.
Finger hopes if the towns prevail, they can recover their legal costs. For Lincoln, a town of 1,260, that would be important.
Finger, a former town manager in Shelburne and Middlebury, said a motion to dismiss was filed on behalf of the towns Tuesday. He said the defense plans to argue the requests by the plaintiffs is outside the jurisdiction of the courts.
Attempts to reach Whiting Town Clerk Heather Bouchard on Tuesday were unsuccessful. The town website says the office is closed in the community of about 420 people.

Other towns sued in the lawsuit have kept their doors open, but in some cases required appointments.
Milton Town Manager Don Turner Jr. said he was surprised by the lawsuit against his community.
“We have been open the whole time,” Turner said.
He said appointments are available and those needing town services can reach out.
He said the clerk’s office has done a good job doing its work, managing the tasks and cleaning the facility.
“I want to keep people safe,” said Turner, a former town fire chief.
The lawsuit against Milton also names Town Clerk Sheryl Prince.
Georgia Town Clerk Cheryl Letourneau said she also was surprised by the lawsuit against her and the town.
Letourneau said phone calls to the town continue to be answered from 8 a.m. to 4 p.m. The calls also can be forwarded to her cellphone and she has access to town records remotely.
Her assistant also can stop in the town offices and access other records that need to be emailed, she said.
Letourneau said appointments are accepted for researchers because space is limited.
“We can’t have 10 researchers in here,” she said.
Letourneau said the town normally has three workers in the office, but the bookkeeper now works remotely to help make room for more public access.
Longtime South Burlington City Clerk Donna Kinville said she was surprised by the lawsuit because she has tried to keep the office open to the public as much as possible.
“We have been open for research and the general public,” Kinville said.
Kinville said a comparison of filings shows there have been 1,400 more documents, including mortgages, purchases and refinancing, filed this year between Jan. 1 and mid-November compared to the same period in 2019.
Kinville did say even when the city furloughed many of their employees from mid-April to early July, she remained in the office helping the public. She was allowed to have one assistant return part-time to help. The office was sanitized between customers until the city ran out of cleaning products, she said.
Masks and social distance are required, and gloves remain optional. She said only two people are allowed in for research and that reservations are accepted from the lawyers.
The public also can get access to marriage, birth and death certificates and other services provided by the clerk’s office.

The lawsuit notes the defendants have taken one or more of the following restrictive practices:
1) reduced hours of operation;
2) reduced hours to conduct record searches;
3) reduced access to physical portions of the clerk’s office, including the vault where records are stored;
4) reduced access to indexing systems; and
5) 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 said.
Gov. Scott’s Executive Order said “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 CATIC’s Vermont office, said in a video message the municipalities named in the civil lawsuit are representative of the statewide problem. He 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 across 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.
Those named in the lawsuit are: Town of Lincoln and Sally Ober; Whiting and Heather Bouchard; South Burlington and Donna Kinville; Bolton and Amy Grover; Milton and Sheryl Prince; Georgia and Cheryl Letourneau; Northfield and Kim Pedley; Plainfield and Carol Smith; and Shrewsbury and Mark Goodwin. 

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