City officials say a tardy city report does not invalidate the March election.

City Attorney Matt Bloomer made the argument last month in a motion to dismiss a lawsuit against the city in Rutland County civil court.

Mark C. Nowakowski has sued the city and the mayor, asking that most of the results of the March election be overturned and a new election be held. Nowakowski argued that because the city report, which is required by charter to be published by Nov. 15, was not released until just before the election, voters had been unable to make informed choices on the mayor’s race, budget and other monetary ballot items. The complaint was silent regarding the aldermanic race.

An individual may challenge the results of an election in Vermont due to errors in vote-counting, errors in procedures or “any other reason” that might change the result. Bloomer argues that while the language in the statute may sound broad, caselaw creates a high threshold for overturning an election, quoting a Vermont Supreme Court decision that said it “requires more than merely a claim of election irregularity, even one of constitutional dimensions.”

“Plaintiff makes no specific factual allegations supporting his claim that the City’s failure to publish the city report by the November 15 date had an adverse impact on the voters,” Bloomer wrote. “The sole fact that the city report was published after the November 15 date ‘does not show that the election in question was fraudulent or improper, nor does [it] show misconduct, much less misconduct of such an egregious nature as to invalidate the vote.’”

On top of that, Bloomer pointed out that the deadline for the city report is not in the section of the charter dealing with election requirements and then quoted another Vermont Supreme Court decision that the charter would have to explicitly say that a late city report invalidates the election for it to have that effect.

“[A] statutory time period is not mandatory unless it both expressly requires an agency or public official to act within a particular time period and specifies a consequence for failure to comply with the provision, ” the decision quoted by Bloomer read. “When the statute is merely directory, — i.e. directs the manner of doing a thing, and is not of the essence of the authority for doing it, — a compliance with its requisitions is never considered essential to the validity of the proceeding, unless such is the expressed or evident intention of the legislature.”

A motion hearing on the case is scheduled for May 14.


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