Welch v. Seery, 214-79

• Decision Date: 05 February 1980
• Docket Number: No. 214-79,214-79
• Court: Vermont Supreme Court
• Parties: Richard C. WELCH v. Agnes Mae SEERY, Individually and as Town Clerk for the Town of Hartford.

Page 1351

411 A.2d 1351

138 Vt. 126

Richard C. WELCH v. Agnes Mae SEERY, Individually and as Town Clerk for the Town of Hartford.

No. 214-79.

Supreme Court of Vermont.

Feb. 5, 1980.

Richards & Lawlor, P. C., Springfield, for plaintiff.

Harry A. Black of Black & Plante, Inc., White River Junction, for defendant.

Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.

HILL, Justice.

On April 10, 1979, plaintiff, a resident of the town of Hartford, Vermont, requested that defendant, Town Clerk of the Town of Hartford, disclose "all fees accrued to the Office of the Town Clerk during the calendar years of 1976, 1977, and 1978." Defendant denied the request, whereupon plaintiff commenced this action to have the income and salary of the Office of the Town Clerk declared matters of public record for the years in question. Alleging that defendant had denied him access to her office so that he could inspect the documents on file, plaintiff also sought to have defendant enjoined from withholding information identifying the amount of income and salary of the office. The superior court dismissed plaintiff's action for failure to state a claim upon which relief could be granted, V.R.C.P. 12(b)(6), and entered judgment. It is from the dismissal of his claim for declaratory and injunctive relief that plaintiff appeals. We affirm.

Plaintiff's request and defendant's subsequent denial cannot be fully understood without first grasping the unique nature of the compensation that the town clerk receives. Remuneration for the incumbent comes from two sources. First, either the town or the selectmen may vote to compensate the town clerk. 24 V.S.A. §§ 932-933; 32 V.S.A. § 1224. In the present case, the town clerk receives a yearly salary, the amount of which clearly is not at issue here since it is regularly published in the annual town report, and therefore freely discoverable by plaintiff. Second, all lawful fees received by the town clerk belong to the incumbent "unless other provision therefore is made by law." 32 V.S.A. § 1401. Fees are defined as "earnings due for official services, aside from salaries or per diem compensation," 1 V.S.A. § 115, and are collected for official services in amounts established by statute. 32 V.S.A. §§ 1671, 1712, 1751. It is the collection of these fees, and the retention of a part thereof as income, that forms the basis of plaintiff's claim.

Plaintiff first argues that Chapter I, Article 6 of the Vermont Constitution, and the so-called Vermont Right to Know Law, 1 V.S.A. §§ 315-320, mandate the disclosures he seeks, presumably in the manner and form that he specifies. We disagree.

Chapter I, Article 6 provides:

That all power being originally inherent in and co(n)sequently derived from the people, therefore, all officers of government, whether legislative or executive, are their trustees and servants; and at all times, in a legal way, accountable to them.

Article 6 is but a truism of a republican form of government, and provides no private right of action. The remedy contemplated by it is that of popular election. Buttolph v. Osborn, 119 Vt. 116, 122-23, 119 A.2d 686, 690 (1956); Clement v. Graham, 78 Vt. 290, 316-17, 63 A. 146, 154 (1906). The maxim embodied in Article 6 is nevertheless given effect through multifarious legislative enactments, see Doe v. Salmon, 135 Vt. 443, 445, 378 A.2d 512, 515 (1977), that in the present case require the town clerk to keep full and complete records of official acts, prepare certified copies of official documents, and aid those who require the services of her office, all of which result in fees accruing to the benefit of the town clerk. See, e. g., 32 V.S.A. §§ 1671, 1712, 1751. Of particular importance here is plaintiff's reliance on the Vermont Right to Know Law, 1 V.S.A. §§ 315-320, which states that its purpose is "to provide for free and open examination of (public) records consistent with Chapter I, Article 6 of the Vermont Constitution." 1 V.S.A. § 315.

Under 1 V.S.A. § 316(a), an individual "may inspect or copy any public record or document of a public agency . . . ." A public record or document, with certain enumerated exceptions, includes "all papers, staff reports, individual salaries, salary schedules or any other written or recorded matters produced or acquired in the course of agency business . . . ." 1 V.S.A. § 317(b).

The Office of the Town Clerk is a public agency which acts as a repository for a variety of public records, the filing of which gives rise to legal consequence. See, e. g., 27 V.S.A. § 461 (recording of mortgage discharge); 27 V.S.A. § 341 (recording of deeds); 24 V.S.A. § 1155 (recording of trust mortgage); 9A V.S.A. § 9-401 (recording of finance statement. It also prepares certified copies of official documents, and aids those who require the services of the office. See, e. g., 32 V.S.A. §§ 1671, 1712, 1751. There is, however, to this Court's knowledge no requirement, nor has any been brought to our attention, that the town clerk is under a duty to keep for the public a running tabulation of the number of filings made or certified copies prepared, the amount of fees collected, or the sum she retains as compensation. Therefore, there is no public document or record that compiles the information plaintiff desires.

Plaintiff disingenuously seeks a...