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On April 26, 2007, Maine's Supreme Court held that where a municipal board is required by statute, charter or ordinance to have a certain number of members and there is a vacancy, the board is not legally constituted and lacks authority to act. Stevenson v. Town of Kennebunk, 2007 ME 55. In Stevenson, a taxpayer appealed an assessment to the Kennebunk board of Assessment Review, which was required by town charter to consist of three members. Prior to hearing the abatement request, a vacancy occurred and the Board of Assessment Review had only two members to consider the abatement request. The taxpayers requested a continuance until a new member could be appointed, but the two remaining board members denied the request for continuance. On appeal, the Law Court held that where a municipal board is required by statute, charter or ordinance to have a certain number of members and a vacancy exists, the board lacks authority to act and any actions it undertakes are a nullity. The lack of authority to act is jurisdictional and cannot be waived by the parties; even if the parties agree to a Board acting with less than the required number of members, the board still lacks authority to act.
Despite the sweeping import of the Law Court's decision in Stevenson, Maine municipalities can continue their operations in the short term and long term through a number of simple steps. Municipalities with matters pending before boards experiencing a vacancy should postpone those matters until a new member is appointed. Even if no matters are pending, municipalities should fill any vacancies promptly to avoid jurisdictional questions. See 30-A M.R.S.A. § 2602(2) (establishing the authority of municipal officers to fill a vacancy in a town office other than that of a selectmen or a school committee); and 20-A M.R.S.A. § 1254 (concerning vacancies on MSAD boards). Where a statute or charter provides authority to appoint alternate members, municipalities should appoint alternates as a regular practice. Currently Maine's statutes only authorize municipalities to appoint alternate members to a Board of Assessment Review (30-A M.R.S.A. § 2526(6)) . See also 30-A M.R.S.A. § 2691(2)(A) (no authority to appoint alternates to a Board of Appeals) and 30-A M.R.S.A. § 4301(12) (no provision for alternate members to a planning board). However, we anticipate the possibility of legislative changes in the wake of Stevenson to provide greater flexibility in this area.
The Law Court's decision in Stevenson also leaves open the possibility to avoid the impact of this decision through a town charter or through ordinance. 2007 ME 55, ¶ 9. Municipalities seeking to avoid the draconian consequences of this decision should consider adopting quorum language in their charter or adopting a municipal quorum ordinance. Such a measure would establish quorum requirements, allowing a municipal board to act with less than the full number of members. For permit applications, such a measure could provide that the board could act unless the applicant or opponents request a continuance. Appropriate charter amendments or a quorum ordinance will provide municipalities the flexibility to continue operations on boards experiencing a vacancy.
Eaton Peabody attorneys are available to assist municipalities in understanding the import of the Law Court's decision in Stevenson v. Town of Kennebunk and in adding charter language or adopting an ordinance to address quorum requirements for local boards.
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