Duties and Powers: Legislative and Quasi Judicial Functions

from MMA's Handbook for Municipal Officers
prepared by Joseph J. Wathen, MMA Staff Attorney
June, 1991

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.

Legislative Role

While the municipal officers have very broad executive powers, their legislative, or law-making, powers are limited to what is granted by either state law or local charter or ordinance. In other words, they have no inherent right to legislate.

Ordinances and Regulations, Policies and Bylaws. Legislation which is enacted at the local level is usually enacted in the form of an ordinance, although local law is sometimes enacted as regulation. There is no clear and simple distinction between an "ordinance" and a "regulation." An ordinance is usually defined as a law adopted by a town or city, while a regulation may be adopted by state, federal, municipal or other agencies. In practical terms, an ordinance and regulation are often the same thing and may both operate as law.

A "policy" adopted by the municipal officers is something different from an ordinance or regulation. "Policy" in the broad sense is the municipal officers' statement of general goals, but has no specific force or application. "Policy" in the specific sense refers to a written or unwritten procedure for dealing with a particular situation. For example, the municipal officers can adopt a personnel policy which describes the rights and duties of town employees. Or, the municipal officers can adopt a policy on how to run their own meetings and the hours of operation for the town office. This type of policy is often called a "by-law," and regulates internal matters. A policy cannot be used to regulate outside matters such as automobile junkyards, parking, victualers, and so on. Those matters must be controlled by ordinance or regulation.

While municipal officers are limited in their ability to pass ordinances, they are often asked by residents to develop a particular ordinance for voter approval. A common example is a request for a noise ordinance. The municipal officers are not legally required to prepare the ordinance, but often it will not get done unless they help. This is a political rather than legal issue.

Statutory authority for the municipal officers to make law. Despite the fact that the town meeting is the town's legislative body, Maine law describes a few legislative functions which are to be performed by the board of municipal officers. Wherever the law expressly requires the municipal officers to perform a legislative task and does not allow for exceptions by charter or ordinance, that task must be performed by the municipal officers rather than the town meeting. The following list comprises the legislative functions that must be performed by the board of municipal officers:

All traffic ordinances pursuant to 30-A MRSA § 3009, including regulation of pedestrian traffic, parking, motor vehicles on icebound lakes, and regulation of taxis and other vehicles for hire. That statute contains several guidelines for ordinance scope and enactment, so read the law closely before passing these ordinances.

Cable television ordinances pursuant to 30-A MRSA § 3008 and § 3010.

General Assistance ordinances pursuant to 22 MRSA § 4305.

Regulation of lands over or adjacent to public water supplies pursuant to 22 MRSA § 2642.

The extension of a moratorium ordinance which was already adopted by the town pursuant to 30-A MRSA § 4356.

The statutes which grant regulation and policy enactment authority to the municipal officers are as follows:

Subdivision regulations (not ordinances) pursuant to 30-A MRSA § 4403(2) where there is no planning board and the municipal officers are the "municipal reviewing authority" as defined in 30-A MRSA § 4301(12). If there is a planning board, that board has this power. Regulations adopted under this section are valid until replaced by an ordinance or charter adopted by the voters.

An ethics policy governing the conduct of elected and appointed municipal officials pursuant to 30-A MRSA § 2605(7)

Regulations on the temporary or seasonal use of roads pursuant to 29 MRSA § 902.

Local authority for the municipal officers to make law. Some towns by charter or ordinance authorize the municipal officers to enact regulations not mentioned in state law. There is no way to list these, but keep in mind that they may exist. Often, the town adopts an ordinance and directs the municipal officers to adopt regulations to administer and enforce the ordinance. In those situations, the municipal officers are really acting in their executive capacity, and not as the legislative body. As a practical matter, though, the regulations they adopt pursuant to authority granted by ordinance are effective as law. An example of this is where the town adopts a solid waste ordinance, and directs the municipal officers to adopt regulations concerning hours of operation, goods allowed to be deposited, and other day-to-day matters. Another example is where the town authorizes the municipal officers to dispose of tax-acquired property in their discretion, and the municipal officers create a bid process to be followed.

Improper delegation of authority. A problem which can arise in an ordinance adopted by the town is that too much authority is delegated to the municipal officers. For example, a solid waste ordinance which delegates to the municipal officers the authority to set fees and penalties may not be valid. The voters can authorize the municipal officers to administer the ordinance, but the municipal officers cannot also decide the specific substantive terms of the ordinance because this is essentially legislation. To avoid this problem, we recommend that delegation of legislative authority to the municipal officers be done pursuant to charter or state law, not ordinance.

Be careful not to confuse the municipal officers' legislative authority with their authority to issue permits and licenses (discussed below in this chapter). Generally, state law or local ordinance sets the performance standards which must be met to get a permit, and the municipal officers merely apply the various standards of the law or ordinance.

Quasi-Judicial Role

When the municipal officers are called upon formally to hear facts and make a decision, they are performing a quasi-judicial function since this is similar to what judges do in court. This duty most commonly arises in issuing licenses, permits and the like. 30-A MRSA § 3701 states that the municipal officers are the town's licensing authority unless otherwise provided by statute, charter, or ordinance. Outlined below are the most commonly requested licenses and permits.

The municipal officers also act in a quasi-judicial capacity when they act as an appeals board. Even though most towns have a Board of Appeals which hears land use and zoning appeals, there are several other decisions made by other town officials which are appealed to the municipal officers. These are discussed further below.

The third general area where the municipal officers act in this capacity is with regard to personnel matters, specifically, when they are hiring, evaluating, disciplining or firing employees. This also is covered below.

Issuing permits and licenses -- common examples.

- automobile graveyard/junkyard permits [30-A MRSA § 3751]

- victualers licenses [30-A MRSA § 3801]

- pawnbrokers [30-A MRSA § 3961]

- special amusement permits [28-A MRSA § 1054]

- concealed weapons permits [25 MRSA § 2001]

- on-premise consumption of food or alcoholic beverages [28-A MRSA § 653, 30-A MRSA § § 3811-3814]. These are commonly called victualer's licenses.

The permitting process with regard to these and over 30 other frequently requested permits is discussed in MMA's Licensing/Permitting Manual (1989).

Acting as an appeals board -- examples.

- tax abatements [36 MRSA § 841]; poverty tax abatements are discussed in detail in the February 1991 TOWNSMAN article, a copy of which is attached as Appendix 12;

- general assistance/welfare appeals [22 MRSA § 4322] if someone other than the officers administers the assistance;

- pinball permit revocation appeals [8 MRSA § 449];

- occupancy certificates [25 MRSA § 2357];

- if by ordinance, appeals from decisions of CEO or building inspector;

- voter registration denials and other election-related appeals [30-A MRSA §2531 and 21-A MRSA § 163];

There is no mandatory procedure for hearing and deciding these appeals, but we do recommend that a few basic steps be taken:

1) make sure that the proper notice of the date, place and time of the hearing has been given to the applicant and the public (unless it is a poverty tax abatement, General Assistance appeal, or other non-public case);

2) tell the applicant that he or she has the right to have legal counsel present;

3) where the facts are vague or need further investigation, use a neutral person to investigate. If the Municipal Officers who sit as the appeals board also do the investigating, this could give the appellant grounds to challenge their decision on the grounds of bias (not able to be impartial).

4) put your decision in writing - a "Findings and Decision" form is in Appendix 3, this is a good guide to use; and

5) make sure you advise the applicant in writing of his or her right to appeal your decision to court or other appropriate body. Since an appeal heard by the municipal officers is usually the final appeal possible on the local level, the route of appeal would typically lead the appellant to Superior Court by means of Rule 80B of the Maine Rules of Civil Procedure, except for tax abatement appeals, which would go to either the County Commissioners or the State Board of Assessment Review in the absence of a local board of assessment review.

Personnel matters. The municipal officers (or town manager if there is one) are often responsible for the hiring, supervision, and firing of employees and appointed officials. State law and court cases set some guidelines in this regard, and the town may also have a personnel policy, union contract, or charter provision which also describes how to conduct personnel matters.

Before disciplining an employee or official, the municipal officers must investigate the complaint - this is essentially a fact-finding duty. The employee involved has the right to present his/her side of the story, and the municipal officers make their decision based on the information presented.

The procedure for a disciplinary or removal hearing is not described in State law except as regards Town Managers [30-A MRSA § 2633]. The U.S. Constitution requires "due process of law," but does not elaborate. Some towns have personnel policies, charter provisions or union contracts which establish the procedure, but in the absence of those, the municipal officers should develop their own procedure. Listed immediately below are some legal guidelines. A generic "script" of a hearing is included in Appendix 4 as well.

Guidelines:

Disciplinary and termination proceedings should be held in executive session unless the person affected waives this in writing [1 MRSA § 405(6)(A)].

Notice of the hearing should be given to the person in enough time to allow him/her to prepare a defense or retain counsel.

The formal Rules of Evidence (hearsay, authentication, and so on) do not apply to these hearings, nor do the other rules of procedure which govern Court cases.

It is permissible but not required to take notes or record the hearing. These will remain confidential even after executive session is over; this is an exception to the general rule since it concerns personnel matters [30-A MRSA § 2702].

One of the municipal officers should serve as the chairman to run the meeting and keep order.

Documents and witnesses should be clearly identified and handled in an orderly fashion.

The hearing should follow a basic pattern: open the proceedings; explain the rules; presentation of the case against the employee; presentation of employee's case; close the hearing.

During the hearing, the municipal officers should avoid making personal comments which could result in the decision being void because of bias or prejudice.

A written decision consisting of findings of fact and conclusions must be issued within a reasonable time, such as 30 days. This decision should state the action taken regarding the employee, if any. The decision must be based only on evidence presented at the hearing. This written decision is not confidential [30-A MRSA §2702(l)(B)(5)].

Notify the applicant in writing of the right to appeal the decision, the time for such appeal, and the place to appeal it. Generally, there is no local appeals board for disciplinary proceedings; these are usually appealable to the Superior Court under Rule 80-B, Maine Rules of Civil Procedure, within 30 days of the municipal officers' decision.

Other Matters. The municipal officers may be asked to make other quasi-judicial decisions, such as:

- declaring a building to be dangerous [17 MRSA § 2851];

- deeming a road to be abandoned [23 MRSA § 3028];

- deciding whether a septic system is malfunctioning and must be fixed [30-A MRSA § 3428];

- subdivision approval where there is no planning board.

There are other situations in which the municipal officers will act in this quasi-judicial role, and it is more important to know the general procedure rather than attempting to memorize or list every possible situation. As stated above, the process should include 4 basic steps: fact-finding (complaint and investigation), notice to the affected person, a hearing, and a decision based on the most persuasive evidence. A formal hearing is not always necessary, but may be required by statute or local ordinance.