"Relationship Between Selectmen and Road Commissioner"
(from Chapter 9, Municipal Roads Manual, Maine Municipal Association, 1992)

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.

 The relationship between the selectmen and an elected road commissioner is sometimes stormy. An elected road commissioner cannot be disciplined or removed from office by the selectmen, but the selectmen control the purse strings in relation to road work and therefore have the final say on most road matters. In addition, the rights and powers of an elected road commissioner are not fully defined in the law, so the job may vary according to local ordinance, charter or long-standing custom. For example, in some towns the road commissioner oversees road maintenance and repair, but does not personally perform the work; in other towns, the road commissioner actually does the road work, and is paid on an hourly or per mile basis. These topics are discussed in detail below.

How the road commissioner is chosen; term of office; discipline; termination. 30-A MRSA § 2526 governs the selection of a road commissioner. A community has three basic options: it can have one or more elected road commissioners; it can authorize the selectmen to appoint and control a road commissioner; or it can allow the board of selectmen to serve as a board of road commissioners. No special training or education is legally required for this job by State law.

Unless otherwise provided by article, ordinance, charter or contract, the road commissioner serves a term of one year.

A road commissioner appointed by the selectmen may be disciplined and terminated (for cause, after notice and hearing) by the selectmen. In a town manager form of government, the manager typically either serves as or oversees the road commissioner.

An elected road commissioner cannot be disciplined or removed from office by the selectmen. The voters may "recall" (remove from office) an elected road commissioner only if the town has a charter or ordinance provision allowing it.

Selectman serving as road commissioner or road crew employee. A common question is whether a single selectman can serve as the road commissioner. It is the opinion of MMA Legal Services Division that a single selectman cannot serve as the road commissioner (either appointed or elected) as these are incompatible offices. That is, the selectmen have the authority to make final decisions on road matters under 23 MRSA § 2701, so a person who serves both as a selectman and as road commissioner cannot be expected to perform the duties of both offices faithfully. See, for example, Howard v. Harrington, 1 1 4 Me. 443 (1916). However, state law expressly allows a board of selectmen can serve as a board of road commissioners [30-A MRSA § 2526 (7)(C)I.

A related question is whether a selectman can serve as a member of the road crew (municipal employee) where the board of selectmen have the authority to hire, discipline, fire or fix the compensation of the road crew employees. Technically, an employment position is not an "office", so a selectman can serve as a member of the crew. If so, however, he or she must abstain from participating or voting on road-related matters as the selectmen. As a practical matter, we recommend against this arrangement since it tends to cause political troubles.

This question is further complicated when there is a town manager plan in effect.  In other words, can a selectman be employed on the road crew if the town manager has complete administrative control over town employees, and there is no contact between the selectmen and the road crew? While there is technically no connection between the selectmen and road employees in this situation, we recommend against it for two reasons. First, in the public eye it often appears to be a conflict of interest and can cause problems in public perceptions. Second, it often causes internal problems. That is, a town manager may find it difficult to discipline or fire a road crew employee who happens also to be a selectman.

Compensation. An elected road commissioner's compensation is determined by the voters unless charter or ordinance provides otherwise. Under State law that office is supervisory in nature, and being in office does not guarantee that the road commissioner will get all or most of the road contracts. This issue does not usually arise in municipalities that have their own equipment and sand supply, but it can be a problem in towns that must hire out all road-related work. In those towns, the tradition may be that the road commissioner (who is usually a private contractor as well) automatically does the road work. This tradition comes under fire, however, when the quality or cost of the work is questioned.

In some communities the road commissioner is paid a yearly stipend to act as supervisor of the roads and to oversee the road work done by contractors. In other towns, the road commissioner receives an hourly wage for certain work (filling potholes, brush cutting, etc.) while major projects (paving, reconstructions, etc.) are bid out.

Bidding out the road work; contract authority. There is no state law generally requiring that contracts for municipal road repair, maintenance or plowing be put out to bid. A bid process may be required if state or federal money is involved, so be certain to review the language of any such grants. A bid process may save the town money since there will be competition for the work, but bidding out has drawbacks as well. For example, the bid process may be time-consuming, and may not be feasible for minor day-to-day road work. Also, unless the bid process is done fairly, the town may be sued by disgruntled bidders. If the town now has a satisfactory arrangement for road work with a particular person or outfit, it is not necessary to change it. The bid process should be used when it will benefit the town in terms of cost, quality or even political tranquility.

The decision to go out to bid can be made by the municipal officers, unless the voters have stated otherwise in an article, ordinance or charter. The municipal officers may delegate control of the bid process to the road commissioner (such as developing specifications, reviewing bids, choosing the successful bidder), but this should not be done where the road commissioner is or will be a bidder. An elected or appointed road commissioner may legally bid on road contracts, but only if he has no involvement in developing the specs, reviewing bids, or awarding the bid, see 30-A MRSA § 2605. (An appointed road commissioner may be precluded from bidding by a statement to that effect in the contract or appointment papers.) If the road commissioner is chosen as the successful bidder, the selectmen must oversee the work, since the road commissioner cannot do the work and also rule on its quality.

The selectmen have the implied authority to enter contracts on the town's behalf if the term of the contract is one year or less. For example, if the voters raise and appropriate $50,000 for winter and summer road maintenance, the selectmen can enter contracts to accomplish this purpose within the fiscal year. It is the opinion of MMA Legal Services staff that the selectmen should obtain voter approval to enter multi-year contracts without voter approval. For example, if the selectmen find that the best deal for road maintenance is through a 3-year contract, the article for the voters should ask that the selectmen be authorized to sign a 3-year contract, within the price range the voters set. A recent case upheld a multi-year contract without specific voter authority, but the safe and prudent course is to obtain such authority before entering multi-year contracts.

Under 23 MRSA § 2704 the legislative body of the town can authorize the road commissioner "or other persons" to make contracts for opening or repairing ways. This law creates a problem in that it conflicts to some extent with 23 MRSA § 2701, which states that the road commissioner's authority to hire personnel or purchase materials is under the direction of the selectmen. This conflict was overlooked when the Legislature amended Section 2701 in 1985, so we recommend that municipalities which authorize contracts under Section 2704 take care to clearly specify the respective duties of the selectmen, road commissioner and contractor involved.

Control of the road budget. Control of money is at the center of many disputes among local officials. The treasurer can disburse money only on the authority of a warrant signed by the municipal officers (see 30-A MRSA § 5603); the road commissioner has no power to order the treasurer to write a check from the town account. The municipal officers' authority in this regard may be limited by the budget format. In a line item budget (where each separate item is approved by the voters) the municipal officers generally cannot vary from the lines without voter approval. In a "lump sum" budget (where the voters raise a lump sum of money for road purposes generally), however, the municipal officers have broad discretion to spend money as they see fit.

One issue that the municipal officers and road commissioner should resolve at the beginning of the fiscal year is the commissioner's authority to hire outside help. For example, if the road commissioner is expressly or by implication (that is, with the knowledge and unwritten consent of the municipal officers) authorized to hire private contractors for road repairs, this arrangement will bind the town. If the commissioner has no such authority, she may be personally liable for any sums due the contractor for work performed. This issue often goes to court (the contractor wants his money, regardless of who pays) so it is best resolved up front.

Budget overdrafts. 23 MRSA § 2705 states that when the amount of money appropriated is not sufficient to repair the ways, the road commissioner may with the written consent of the municipal officers exceed the amount appropriated by up to 15%. This overdraft authority recognizes that road budgeting is not a science, and that road conditions are often subject to forces beyond human control. Note that the law specifies road repairs, not maintenance or plowing, so the conservative approach is to overdraft only when necessary for repairs.

It the overdraft authority is used, the voters still must approve it after the fact, so an article must be prepared for this purpose.

The law is unclear about what sum the 15% is based on. If the town meeting appropriated a single lump sum for all road purposes, then up to 15 % of the entire amount is available. It the budget has separate lines for snowplowing, paving, construction and road repair, then the 15% is based on the amount allocated for repair only.

Disputes between selectmen and road commissioner. 23 MRSA § 2701 makes it clear that the selectmen have the final say in questions about the road commissioner's duties:

"In the absence of a statute, charter provision or ordinance to the contrary, any decision involving the duties and responsibilities of the road commissioner shall be made by a majority of the board of selectmen whose decision shall be final."

The same law also makes it clear that the selectmen can take all steps necessary to repair hazardous road conditions if the road commissioner fails to remedy the situation within 24 hours after receiving written notice to do so from the selectmen. This provision is designed to ensure that public safety is the top priority, and will not be subject to disputes between local officials.

Defining the road commissioner's role. As discussed above, the state law does not describe in detail the road commissioner's rights and duties. 23 MRSA § 2702 and § 2703 pertain to inspecting roads and keeping accounts, but those provisions are limited in scope. A municipality can by ordinance or charter clearly define an elected road commissioner's role. The duties of an appointed road commissioner can be determined by the selectmen (or town manager), and should be put in writing to minimize disputes. A set of guidelines is contained in Appendix S.

One way to reduce conflicts between the selectmen and an elected road commissioner is for them to meet soon after town meeting to discuss what work needs to be done and the best way to accomplish it. If the selectmen and road commissioner agree on a schedule, it provides both of them some assurance of the order and manner in which work will be completed. This is also helpful when members of the public raise questions or complaints about the roads.