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This is a follow-up to our May 17, 2007 municipal client alert concerning the Law Court's Stevenson v. Town of Kennebunk decision (April 26, 2007). In Stevenson, the law Court held that a municipal board of assessment review with an unfilled vacancy was not "duly constituted", and therefore lacked authority to consider and act on a taxpayer's valuation appeal. The Law Court's decision in Stevenson was contrary to the long- standing assumption of municipal attorneys in Maine that Maine law allowed municipal boards to act by a majority of their members, even without a local ordinance or charter provision to that effect.
Based on the strong municipal reaction to Stevenson and at the urging of the Maine Municipal Association, the Legislature has enacted emergency legislation, effective June 21, 2007, that reverses the Stevenson holding. The new law (PL 2007, Chapter 396) adds a new paragraph 7 to Title 30-A section 2602, expressly allowing municipal boards to act by a majority of their members, notwithstanding an unfilled vacancy. Eaton Peabody's Mike Trainor was among those testifying at the Legislature in support of proposed corrective legislation. Mike's particular concern was about how the Stevenson decision, if uncorrected, might affect the validity of borrowings approved by town and city councils and by boards of selectmen in municipalities where selectmen have borrowing authority.
The version of the new law adopted by the Legislature addresses only the situation presented in the Stevenson case. The new statue does not address a situation left unanswered in Stevenson, i.e., a municipal board with no unfilled vacancies, but with one or more members absent at the particular meeting concerned. Because the "absent member" scenario is not specifically addressed in the new law, municipal clients may still wish to consider adopting a quorum ordinance for their municipal boards, as suggested in our previous client alert on this issue.
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