Notice Requirements for Public Proceedings
Liability for Snow Plowing
Nomination Papers
(from Maine Townsman, "Legal Notes," January 1990)

This Maine Municipal Association publication is presented for "Classroom Use Only."  Its intended use is to stimulate and aid in discussion and role playing within a classroom setting.

This legal note outlines notice requirements for various types of public proceedings. Before discussing these requirements, however, it is helpful to review some commonly used terms.

The terms "public meeting" and "public hearing" are often used but have no clear legal distinction or definition. The general rule of thumb is that members of the public may attend public meetings (selectmen's meetings, planning board meetings, etc.) but have no absolute right to speak; at a public hearing, however, the public does have a right to speak because that is the purpose of the hearing. Note that a local charter or ordinance may define "public meeting" or "public hearing," and in that event those definitions should be consulted in conjunction with any notice provisions in the charter or in local ordinances to determine what notice is required by local law.

Public meetings and public hearings are both "public proceedings" as defined in 1 MRSA § 402 (part of the Right-to-Know Law). The public must be notified of such proceedings pursuant to 1 MRSA § 406. Issues other than notice and hearings are not discussed here. For further information, see the April 1976 MAINE TOWNSMAN article entitled "How to Conduct a Public Hearing."

1 MRSA § 406 requires public notice for a "meeting of a body or agency consisting of 3 or more persons." The statute does not require a particular form or medium of notice, but sets a general standard:

The body responsible for calling the meeting can determine what manner of notice is best. Circumstances to consider include: cost and availability of radio, television or print media, amount of time available, and past notification practices. However, the municipal officers or the voters may prefer to establish a uniform method for giving notice.

In some municipalities, the best method might be to simply post a notice at the town hall, town dump, local coffee shop, and any other place where members of the public are likely to see it. In other municipalities, the daily paper or local radio station might be the best way to reach the public.

The foregoing general rule is exactly that; a rule to use when there is no statute or local ordinance or regulation which sets more specific notice requirements. Any local rule must meet the requirement of 1 MRSA § 406 that the notice be reasonably calculated to notify the public.

The following list is a compilation of state laws which require particular time frames or forms of notice for public proceedings. This list is not all-inclusive, but does cite some commonly encountered laws. The laws are listed alphabetically by subject matter, with a brief description of the notice requirement. This is not intended to be used as a substitute for reading the full text of the statute. All time periods stated (e.g., "7 days") are minimums.

Charter Commission. 30-A MRSA §2103(2): 7 days' notice of organizational meeting. 30-A MRSA § 2103(5): 10 days' notice of public meeting, newspaper publication required. 30-A MRSA § 2104(5): amendments to charter require 7 days' notice, newspaper publication.

Comprehensive Plan. 30-A MRSA §4324(8): public hearing for proposed plan requires 30 days' notice, newspaper publication.

Ordinances. 30-A MRSA § 3002 requires 7 days' notice by posting for enactment or revision by the legislative body of a municipality.

Ordinances. For ordinances that can be enacted by Municipal Officers (i.e., Selectmen or Council): 30-A MRSA § 3008 (cable T.V.) requires 7 days' posted notice of meeting. 30-A MRSA § 3009 (traffic regulation) requires 7 days' posted notice of meeting. Although not specifically required by statute, a 7-day notice should also be given before adopting General Assistance Ordinances.

Referendum Question. For towns which have adopted a referendum, 30-A MRSA § 2528, 30-A MRSA § 2528(5) requires at least 7 days' notice of public hearing on the subject of the referendum. The hearing must be at least 10 days before the vote.

Subdivision Regulations. Where no local subdivision ordinance has been adopted, 30-A MRSA § 4403(2) requires 7 days' notice of hearing to adopt, amend or repeal regulations. 30-A MRSA § 4403(4) requires 7 days' notice by newspaper publication of any public hearing to approve subdivision application.

Town Meetings. For annual and special town meetings, 30-A MRSA § 2523 requires at least 7 days' notice by posting warrant in one or more conspicuous, public places in town.

Zoning. For a rezoning by either conditional or contract zoning, 30-A MRSA § 4352(8) requires public hearing, two notices by newspaper publication (the first of which must appear at least 7 days before the hearing), and posting of notice in the municipal office at least 14 days before the hearing. Notice to abutters is also required.

In addition to the foregoing, public hearings or meetings are required for such municipal activities as the issuance of licenses and permits. These include automobile graveyard permits, victualer's licenses, special amusement licenses, and the like. For further information on the specific requirements of these activities, see the MMA Licensing/Permitting Manual (1989).

In conclusion, a three-step process is recommended when you are unsure of the type or method of notice required for a public proceeding. First, read your local ordinance or charter for guidance; second, check the state statutes for particular requirements; finally (if you find nothing specific to guide you), follow the general rule outlined in 1 MRSA § 406. Bear in mind, however, that no local provision can undercut or relax the Maine Right to Know Law's requirements that notice be given of every meeting of a municipal body which consists of three or more members, and that "3 or more" refers to the total number of members of the body, not just the number expected to appear at any particular meeting. (By J.J.W./E.P.C.)

Liability for Snow Plowing

Question: Sometimes we get complaints concerning our snow plowing efforts. To what extent are we liable for the conditions of town roads after we have plowed and sanded?

Answer: The municipality has a duty to remove snow sufficient to make town ways passable (23 MRSA § 3201), but no duty to guarantee safe, dry conditions. Municipal liability for roads is generally governed by the Maine Tort Claims Act (14 MRSA §§8101-8118). One section of the Act provides that municipalities are liable for "negligent acts or omissions arising out of and occurring during the performance of construction, street cleaning or repair operations on any... town way..." (14 MRSA § 8014(A)(4)). Snow removal is not considered construction, street cleaning or repair, however; thus a municipality will not be liable for failing to adequately remove ice and snow from the roads (see Goodine v. State, 468 A.2d 1002 [Me.1983]). Further support for the absence of municipal liability in this area is found at 23 MRSA §1005-A(1), which provides that "The State or the town shall not be liable for accidents while the road surface is covered with snow or ice."

A municipality may be liable, though, if any injury occurs as a result of negligence in the actual use of machinery and equipment (such as plows, dump trucks, graders, etc.) during snow removal operations. This is established in 14 MRSA § 8104-A(1).

In short, if the roads are slick and icy even after plowing, the town will not be held liable for such conditions. The town will face liability, however, if cars or pedestrians are struck by a plow, for example, and it is determined that the plow operator was negligent at the time. (By J.J.W.)

Over the years, notes appearing in the Legal section of the TOWNSMAN have addressed a number of issues related to roads, including winter road maintenance. The following is a summary of those legal notes, with reference to the issue of MAINE TOWNSMAN in which they appeared. If you cannot locate a particular issue which you would like to review, contact MMA's Legal Services secretary to request a copy.

Closing Roads to Winter Maintenance— Sept. 87

Discontinuing a Town Way—Aug. 89, Nov. 82

Excavation Near Utilities—April 87

Plowing Private Roads/Driveways—Jan. 89

Maintenance of Private Roads—July 89

Regulation of Town Roads—Jan. 82

Snow Fences—Nov. 87

Snow Fences/Utility Poles—Nov. 86

Tree Removal—April 80

Winter Road Closings—Aug. 81

Nomination papers, in towns that either use the secret (Australian) ballot process for electing officials (30-A MRSA § 2528) or that have elected to require nomination papers of candidates (or certificates of political caucuses) even though elections are held on the floor of an open town meeting (30-A MRSA § 2527), are due by not later than the thirty-fifth (35th) day before election day. 30-A MRSA §§ 2527(1), 2528(4)(C). The deadline was formerly 21 days before election day, but was changed in 1979 to 35.

What if the deadline for filing nomination papers (or any elections-related deadline, for that matter) falls on a Saturday, Sunday, or legal holiday? The answer used to be found in Title 21, but the provision that gave an answer was inadvertently omitted when Title 21 was revised into a new Title 21-A. In 1989, that omission was corrected by the enactment of 21-A MRSA § 6, which provides that when an act must be performed or an event must take place on a Saturday, Sunday, or legal holiday, "the act shall be performed or the event shall take place on the next following business day." The statute controls, and should be observed. (By E.P.C.)