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Meeting Minutes

Town of Leicester

Selectboard Meeting Minutes


Monday, August 3, 2009




** See subsequent minutes for any changes


Members Present:  Diane Benware, Bob Oliver, Tom Barker, Ron Fiske


Absent:  Ken Young


Others Present:   Julie Delphia, Arlan Pidgeon, Tim Johnson, Kate Briggs, Charles Johnson, Gary Kessler, Lisa Lidier, Pam , Sandra Trombley, Secretary


Call to Order:  Meeting called to order at 6:35 p.m. by Chair, followed by the Pledge of Allegiance. 


Agenda Review:  Agenda reviewed. 


Chair will change the agenda a little bit to hear from Gary Kessler representing the Green Mountain Stage Race and the Member Relation Representative and Underwriter of VLCT.


Green Mountain Stage Race Request:


Gary Kessler explained that he organizes and coordinates the Green Mountain Stage Race.  They get about 850 riders, mostly from out of state.  They stay four days.  It is the biggest non-holiday event for businesses.


The day he is asking for this year is Sunday, September 6th.  It’s called the Mad River Road Race.  Middlebury Gap is not suitable again this year, so the intention is to go over Brandon Gap and stay with the same route as last year.  The race starts about 8:30 a.m.  They have 11 different fields on that day.  The last field to go is around 10:00 a.m.  They would all be clear in about two hours from when the first riders came into town to when the last riders would be gone.  They are licensed racers.  They have officials that go with every field.  The State Police lead every single field.  Police and professional flaggers are at all the major intersections.    They have insurance for group from USA Cycling which is the National governing body.  He will name the Town as an insured. 


He worked with VTrans and talked with District Manager about putting up one of their message boards on Rte.7 just south of the intersection where they come out on Rte.7 a few days in advance to say that the race was happening to give motorist as much notice as possible.  We put signs up as well a week in advance.  The race starts in Warren, at Sugar Bush Ski area and finishes on the top of the Appalachian Gap.


Charlie Johnson commented that it is very peculiar that they have State Police doing all this work, costing us money, when three weeks ago he called for state police assistance and he waited over two hours and nothing happened until he said that he was going outside with his shotgun and within twenty minutes he had two cars in his driveway.  So, he can’t understand how the police can go out on these bike runs.  You couldn’t even get hold of a rent-a-cop.  They won’t even come down from Middlebury.


Gary explained that they pay about $12,000 for this race for all of this work; mileage, overtime, cruiser fees, etc.


Tim asked as a citizen of the town, that the Board look on the calendar as this is Labor Day weekend, one of the busiest weekends of the year.


Gary affirmed that this race is always on Labor Day weekend.  He explained that they are in and out in the morning.  We try to be a minimal inconvenience.  This is the 9th year we have done this race.  He has talked with Brandon and Salisbury, as well. 


Motion by Ron to approve the request for the Green Mountain Stage Race September 6th.  Second by Bob.  3 yes to approve and 1 no (Tom)


Gary gave the Consent to Use Public Roads form to the Chair to sign.


VLCT Answer Audit Questions:


Julie received a request from Sue Benoit to do the Workers Comp Audit for 2008.  Julie supplied her with all the information that she had.  Sue did the audit and came back with an audit report and a bill that the town needed to pay $3,456 beyond what we had already budgeted.


Some of the reasons they were charged were based on subcontractors and whether or not they held workers comp insurance and if not, whether or not they we were responsible for it.  Some questions came up.  Sue sent us a process for sole proprietors and corporations.  This led to other questions about why we were actually charged for workers comp for certain subcontractors.  It also led to a new question about incorporated subcontractors and subcontractors in general.


The people that we got charged for and we didn’t budget for were Calvin Loven, Charbonneau Design and Construction, Crane Plumbing and Heating, Lem Palmer, Gus Letourneau and Richard Humiston.  The question we had in regard to this were:


Why are we responsible for their workers comp when we did have signed non-employee work agreements with them, however, they weren’t signed that year?  There were no expiration dates on them.  So, what would indicate to us that they were no longer valid?  We also have the question, at what point is a business a subcontractor, not a subcontractor?  If we have Royal Lock company come down and change our locks, are they considered a subcontractor or not?  We have an incorporated business doing a subcontracting project for us, they are incorporated, and they do not carry workers comp because it is a one person business, and they are the President and he has given himself approval not to have workers comp insurance.  So, the question Julie had on that was, what forms do they fill out?  Sue said have him sign the non-employee work agreement form.  The non-employee work agreement form is specific to unincorporated businesses.  Julie didn’t feel comfortable and when Julie talked with Lisa, she also said maybe he could sign that form.  Julie does not feel comfortable asking someone to sign something that is an untrue statement.  We do not want to be liable for his workers comp.  We don’t want to liable for any of these people’s workers comp.  We’re trying to understand as a group and trying to summarize all the discussions that we have had.  What led to us being billed for these people?  Why was the documentation that we had insufficient?  What is the process going forward that we need to do to insure that we aren’t going to be hit with any further charges that we haven’t budgeted for? 


We are trying to understand the audit.  Why we were billed for it?  What we need to do, going forward, to insure that we don’t get hit like this again?  Although $3,000 doesn’t sound like a lot for us, it is a lot of money.  Our budget isn’t that big and it’s a significant amount of money for us to make up.


Lisa gave an overview of workers comp and the whole subcontractor roles and wanted the Board to understand the Town of Leicester purchases their property and casualty insurance through VLCT.  Workers Compensation coverage is part of it...  VLCT really wants to mostly help the town to reduce their premiums.  What we don’t want to happen is someone working for the town, getting hurt, and then having a large claim against the Town.  Workers Compensation claims can go on for life and they can be hundreds of thousands of dollars.  We want to guard against something like that happening to the town.


Lisa stated that this year, typically 99% of their municipalities underestimated their payroll.  For some reason for 2008 almost everybody under estimated their payroll.  So, that means that they owe a little bit more on actual payroll.


Julie stated that there was an underestimation that accounted for part of the $3,456.  The subcontractor part was about $2,025 and the remainder was the underestimation of the payroll.

Julie stated we are looking primarily at the subcontractor part of it.  That was the piece that took us off guard.  Obviously the information that was available to us was what we used.  The person that was here last year, is no longer here.  We had the information as best we could.


One other question that Julie had was, if we have non-employee work agreements on file with no expiration dates, why aren’t they valid?  The forms that Julie has are old forms but they discuss the workers comp coverage and they affirm that they are a sole proprietor and it is exactly what the non-employee work agreement says, but it’s obviously an older form.


Lisa explained that these were the old workers comp hold harmless forms.  Unfortunately, these.. The new forms that we have, and she hopes we have one, can be open ended.  They can give a range of dates.


Julie stated that this was not what she was actually told, so all the people that she has had signing them have been strictly for the calendar year because we were told by Susan that they could only be done for the year that they were signed in. 


Lisa explained that that was the best practice to have them signed every year.  If they were insured, you would have to get a copy of their certificate of insurance every year.  So, it has been a best practice.  It’s actually been from our most current Underwriting Manager that if they are signed, they can be open ended.  I would advise you to go ahead and have them signed this year. 


Julie asked because she didn’t understand.  If the new forms are open ended then why aren’t the old forms open ended?


There was further discussion.  Lisa started on rates.


Julie stated that she is still confused.    This new non-employee work agreement says the same stuff as this form right here says.  It says:

·        I am aware of my right to purchase workers comp

·        I elected not to purchase it pursuant to VSA 601-14

·        They sign it

·        They agree they meet these things

This looks like it may be a hold harmless and non-employee work agreement form combined.


Sue got copies of all this.  Julie faxed her all of this information. 


Lisa reviewed Calvin’s, Charbonneau’s.  Lisa asked if Sue said no because they weren’t the right date?  Julie said that she said, they were not signed in this year and they don’t count.  Julie asked why not?


Lisa stated that this was new information to them and they would like to go back and double check and it’s possible that they might be able to review this.  She thought that they didn’t have a certificate of insurance.  Julie stated no, they all had.  She thinks only Charbonneau we didn’t have because they were treated like we would treat Comcast.


Lisa stated that they weren’t aware of some of these things.  Julie stated that she doesn’t want to blind side her, but she did ask both Susan and Lisa about some of these issues since the audit.


Lisa stated that these were really good questions.  You should always have your Town attorney review the language. 


Lisa gave an overview that these are DOL rules and it says that a person that does work for you is an employee unless you can prove otherwise.  We typically don’t worry about Corporations.  We look at 1099’s.  Corporations are mandated by law to have workers compensation.  Anyone who has employees needs to have workers compensation coverage.  Then it is the sole proprietors that are left.  The sole proprietors can opt out.  That leaves the Town wide open.  They get hurt, who’s going to pay.  They can go to the State and say, I ran over my foot while I was mowing for the Town of Leicester, and the State can determine they were your employee unless you have something that says otherwise.  This is where the non-employee agreement comes in.  This is where we want to see the certificate of insurance.  They expire year after year.  If they don’t have it, this is where the second half of the form comes in where they sign that they are working for themselves and not the Town.  It’s a written agreement.  It is protection for the Town.


This is not something new and has been explained to the Town before.  This is how we have always done the audit.  The rule hasn’t changed.


Julie faxed all these copies to Susan, about 50 pages.


Julie asked about hiring a sole proprietor of an incorporated business.  Lisa answered that they would recommend in this case to ask for a copy of his opt out form.  Because you know he doesn’t have workers comp because he has told you.  That will protect you.


Julie had another question.  If the individual who is party to the agreement, which is the unincorporated subcontractor, sole proprietor, is found to have employees, those employees may file a claim for benefits against either or both the individual or the Town.  Julie would like to understand if someone says, I am a sole proprietor, I own a business, I do not have workers comp, I am signing that I am not an employee of the town, and I am signing my hold harmless form and then they go out and hire someone or have someone work for them, how is the Town liable? 


Lisa explained because you are.  Someone has to pay.  The DOL will make the decision that that person was actually an employee of the Town.  The State mandates that the employer have workers compensation on them.  If they do not, then someone has to pay and that would be the Town.


Lisa said the only people that you have to worry about would be the ones that will get a 1099.  We recommend you do get as accurate as you can for your payroll estimate. 


Julie stated that the Selectboard needs to understand the risk associated with hiring a sole proprietor that does not carry workers comp and if that sole proprietor should choose to hire someone, not carry workers comp, not notify the Town, the Town could very well be liable for their workers comp for the employee.  The Town would be liable if they submitted a claim.  That’s the position that we are in for every subcontractor that we have hired here.  We don’t have very many, but every one of them is a sole proprietor that does not carry workers comp.  The Board needs to understand that. 


Approve Minutes of July 20, 2009:


The minutes for July 20, 2009 meeting were reviewed. 


Motion by Bob to approve minutes of July 20, 2009.   Second by Tom.  All in favor.  So approved.


Review and Sign Orders for Payment:


Bills making their rounds. 


Julie stated there was a new Road Commissioner’s Order Form in the bills.  It is much easier than doing it all by hand.  It calculates for her and she doesn’t have to do it by hand.  The Board is fine with it.


Weight Permits:   None


Reports from Town Officials & Committees: 




Delinquent taxes are at $42,217.79.  They are continuing to go down.  Julie hasn’t seen anything this week.  She expects something next week.  Beth has been working with the lien holders.


They have started scraping the white building.  They are going to be spraying the white building.  Paul requested that he could block the parking spaces where the transit bus is so that the overspray doesn’t go on any cars.  There are two people that park out here fairly regularly, so Julie put a note on their cars saying that we would be spraying the building and we didn’t want overspray and asked if they could park in the school parking lot until further notice.  Paul said they should be done in two weeks.  It will be roped off.


People parking at the Town Office can just move when asked to, since they will be in the building.


Julie had a complaint about the shoes on the wires on Fern Lake Road.  Julie will call CVPS and then if they don’t, she’ll call the phone company.  Bob had already called CVPS.


Julie had an invoice for welding the grader for Scott that didn’t get in in time to do the bills.  It is for 11 hours of welding mol board and welding the circles side shaft.  She would like authorization to pay him.


Peg Oliver called about the white building.  She said the inside of the white building, especially the bathroom on the first floor, and the flies and residue on the upstairs is out of hand and she is requesting that it be cleaned.  Peg has been showing the building and she is embarrassed at the condition.  There is also a wedding at the end of August.   If the Board would like, Julie will contact Cathy to do that. 


Tom made a motion to have it cleaned upstairs and down.  Second by Bob.  All in favor.  So approved.


Motion by Bob to authorize payment of $440 for the 11 hours of labor.  Second by Ron.  Tom abstained. 




Tim said there was nothing to report. 


Diane mentioned that two of the three inspections had been conducted.  There’s one Wednesday evening and the BCA is meeting Monday at 6:30 p.m.




Zoning Administrator:


Kate mentioned that Salisbury has just adopted a new elaborate set of zoning by-laws and in there is some interesting language  about driveways and access which she will bring to the Board’s attention.  She finally read through the 100’s of pages.  There is some pretty good language about dealing with hills. 


Julie had a concerned landowner.  A zoning permit was reviewed and a person listed as an adjoining property owner no longer owned the property.  Luckily, the person that used to own the property sent the zoning notification to the person that now owns the property, but they weren’t very happy about getting the notice in the first place considering the property changed hands in April.   Julie thinks we need to put something in to verify who the adjoining property owners are and if it has changed hands.  On the Brogan application, Estelle Smucker was listed as adjoining property owner and it was decreed in April to different people.


Kate depends on the Listers to give her an up-to-date list.  Julie informed that the Grand List that is done for 2009 is based on ownership as of April 1st.  So, the information they have will not change after April 1st until the Grand List has been lodged.  So, the Grand List actually has just now been lodged, so they will just start now, making the changes for the property that has been purchased since April 1st.   Julie thinks they need to add a step somewhere that looks to be sure they are getting the right property owners.


Tom stated a good way would be to ask the Clerk to look at the property transfers. 


Kate stated that in most towns the burden is put on the property owner that is applying for a permit.


Ron stated that once a month just go to the property transfer tax form.  It will tell you everything.


Kate is saying that if the landowners come in and do this research on their own, which they  do, they end up with whoever’s name is there.  We need to write down how to do the research.  If they go to the tax maps, thinking that’s accurate and it may not be. 


Road Forman:


The grader got welded.  Now the chain in the case is broke.  He’s not sure what it will cost to fix and buy a new chain.  It’s a big chain.


Arlan put four loads of gravel on the Bullock Road.  It will probably need another one.


Kate said there was some serious washing out on Rte 53 where you put the culverts in. 


Tom has been asked three times when Rte. 53 will be paved.  Arlan wants to wait until it hardens up.


Bob asked if Arlan got some signs up.  Arlan said no, but he has them ready.


The Board wants Arlan to take some gravel out to build it up and put the signs up.


Arlan cleaned off the shoulder from Greg Moore’s driveway going east to the corner on Ferson Road.  With all the rain, it washed a little gravel on his lawn.  He talked to Arlan complaining and Greg thinks Arlan should put the shoulder back on, but Arlan really doesn’t want to do that.  


Ron will go and look at the issue.


Dog Issue:


Last Wednesday at the Lanphear residence a black dachshund bit Christine Cole, Missy Cole’s daughter.  Bucky was called.  Brian was called.  Bucky went to see Christine after she came home from the hospital.  She had bite marks on her back and arm.  Brian also came down and spoke to the Lanphears. 


Last Thursday Diane spent all morning trying to find a place where a dog could be confined for quarantine.  Middlebury Animal Hospital does not, the Humane Society does not.  She talked to Barry Forbes who is the dog person in Middlebury and he didn’t have a place.  Bucky called her and said the literature he had indicated that the dog could be kept at the owner’s property provided it’s confined and they observe it for ten days.  Diane called the attorney and Peter indicated that as long as the Lanphears were willing to keep the dog there and observe it, that would cover us.  The attorney advised her to send a letter to the Lanphears indicating the animal control person knows, the health officer knows, and we are expecting them, if they are agreeable, to keep it there on their property, because if we do have to find a place, we can charge them $80 or more a day.  They would be liable for a civil fine for having an unregistered dog and the fact that it had bit someone. 

Diane’s letter indicated that they may need to hold a meeting to determine whether this is a vicious dog. 


Brian thought it should be not the $50 first violation fine, but the $100 fine for second violation.  Brian talked to them this afternoon and the message from him was that the dog is confined and they are willing to have it be there.  He is going to conduct random compliance checks.  He said that he does want to give them a ticket.  When he indicated that to her, she got loud and obnoxious and he does not want to be there alone when he gives the ticket and may need help from the Sheriff.  


Tom stated that they can send Mr. McDonough with him. 


Setting Tax Rate:


August 17th, next Selectboard Meeting will set the tax rate.






Old Business:


Road Maintenance:


Diane received letter today from Mr. Joswiak’s from 31 Chatterton Park in Proctor has put in a bid for grader with wing blade and all attachments and tire chains for $6,000.  The bid is valid until August 10th.


Arlan will look to see what it needs and report back to the Board.


In the other folder there was a survey for non-profit academic group for emergency planning.  Diane will take and fill out.  The other item was from Elizabeth Golden that Bridport and Addison County Regional Planning got a Biomass Energy Resource to study the feasibility of pellet production in Addison County.  This was basically an update.  Vermont Energy Investment Corporation is a non-profit organization that provides a full range of energy reduction services.  They are letting us know that they exist.  Phelps Engineering is just letting us know that the local roads had an article that Grant B category for Better Back Roads; they are increasing from $7,000 to $10,000 for erosion control. 


Public Opinion:


Tim would like to go on record and thanking Tom for voting “no” on the bicycle stage race through the town.  He thinks the town should take a look at the effect these events have on the town’s people.  Until they register the bikes or the Town receives some monetary kickback from these events, he thinks it’s quite a burden on the taxpayers of this town to have to deal with them bike races. 


There is nothing we can do about the race.  The Commissioner puts his stamp of approval on them. 


Motion by Bob to adjourn at 8:26 p.m...  Second by Tom.  Passed unanimously. 


 Adjourned by 8:26 p.m.


Next regularly scheduled meeting August 17, 2009 6:30 p.m.



Respectfully submitted,



Sandra L. Trombley

Selectboard Secretary