As of last week, a vacancy on any municipal board strips that board of all authority to act. No votes, no decisions, no spending. Nothing.

It’s an “irksome” Law Court ruling that could, Wilton Town Manager Peter Nielsen suggests, “delay the public business” by crippling certain boards’ abilities to take binding votes on pressing business.

It’s also a ruling that could postpone Wilton’s revaluation process.

Last Thursday’s decision by Maine’s Supreme Judicial Court in the case of John M. Stevenson vs. the town of Kennebunk holds that only fully occupied municipal boards are legally permitted to conduct government business. If a board has a vacancy, it has no legal standing to conduct business. It cannot hear or rule on any business, including anything that may have been pending before the high court’s ruling.

Wilton’s Board of Assessment Review has a vacancy, so before the town’s revaluation process can continue, the vacancy must be filled. Nielsen has urged selectmen to act quickly.

Last week’s ruling has such immediate and wide impact that Bernstein Shur sent an e-alert to its municipal clients and others Monday. It was from that alert that Nielsen decided to strike the alarm with his selectmen.

Municipal boards, Nielsen said, “in the towns that I’ve served have found themselves without a full panel from time to time. People leave. People die. People resign, and there’s always a period of time when you’re trying to find someone to fill the vacancies.”

Of more immediate concern is that any board with an existing vacancy that may have taken action since Thursday’s ruling cannot avoid the binding nature of the ruling, according to Amanda Meader of Bernstein Shur, an attorney who specializes in municipal law. Under the Stevenson ruling, Meader said, any decision by any municipal board, commission or committee with an unfilled seat “will be null and void.”

In the Stevenson case, John and Roxanna Stevenson of Kennebunk argued that a tie vote by that town’s Board of Assessment Review for an abatement on their 2003 property taxes was nonbinding because only two members voted. That committee is required to have at least three seats under the town’s charter, but only two were filled, which means those two members “lacked authority to rule on the abatement,” the Stevensons argued. By a majority vote, the Law Court agreed.

The ruling does not apply solely to three-member boards, but to all boards that – by statute, charter or other rule – have a set number of seats. Think boards of selectmen, planning boards and other municipal entities, Meader explained.

Justices Donald Alexander and Robert Clifford did not join in the court’s opinion, fearing the decision stepped beyond what the Stevensons were asking for, which was nullification of the tie vote.

The decision, those justices wrote, “may confuse and disrupt the operation of many small municipal boards” in constricting business unless all seats are filled. It defies conventional wisdom of majority rule and Roberts Rules of Order, according to Alexander and Clifford.

The ruling is, Nielsen said, “more of a hindrance than a help.”

In the short term, Meader agrees. “It could hamper the ability of some boards to take action,” she said, “at least as long as Stevenson stands.”

She strongly encourages towns to act to mitigate the damage by amending charters “or ordinances or whatever that town has for controlling documents to provide for vacancies.” Action could include crafting vacancy ordinances allowing boards to maintain authority to act “with the full power of the board, with the vacancy notwithstanding,” she explained.

Meader is already helping one municipal client begin drafting such an ordinance. She also suggested that the Stevenson ruling’s bite could be lessened by legislative action or a Law Court review to further clarify the ruling.

Judicial and legislative processes operate slowly, however, and “there will be some period of time that people will have to abide by this,” Meader said.

The ruling does not apply to boards when members are absent from a meeting because of illness or other reasons – only to boards with vacant seats.

The obstacles the ruling creates must be considered, Meader said.

For example, if a member of a five-member board of selectmen resigns, leaving a seat vacant, ordinarily the board would sign a warrant to schedule a special town meeting to elect a replacement to fill the vacancy. Under the Stevenson ruling, a vacant seat on a board of selectmen creates a nonlegal board that cannot take formal action.

“A technical reading of the decision,” Meader said, is that “the minute you have a vacancy, any future act is null and void” until the vacancy is filled. With such a “catch-22” it is questionable whether a board of selectmen could act to set an election to fill its vacancy, creating a kind of legal limbo. Boards would not even be able to vote to continue a matter already before them unless all seats are filled.

The most immediate problem, Meader said, is that many, many municipal boards are unaware of the decision and boards with vacancies may have taken action since last Thursday. If so, the action they took is not legally binding and the boards would need to take corrective action, she said.

A call to Maine Municipal Association for further clarification on what the ruling means to the state’s municipal governments was not returned.

To read the court’s decision, go to: http://www.courts.state.me.us/opinions


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