Road Commissioner
(from Maine Townsman, April 1993)
by Michael Starn, Editor, and Susan Lessard, Town Manager, Town of Hampden

The job evokes heated debate and recurring questions at Maine town meetings year after year, and 1993 was no exception.

Year after year at town meetings across the state the same questions keep popping up regarding the job of local road commissioner. Elect or appoint? Single year or multiyear terms? Supervisory or a hands-on approach? What's a fair price to pay for road work?

The issues don't change and in many instances neither do the people. Whether appointed or elected you will find that by and large many road commissioners have a great deal of longevity. In some cases you will see a switching back and forth between two local contractors who each year have a tug-of-war over the elected position.

The local road commissioner is one of those municipal positions which everyone agrees should be "outside" local politics, but ironically one which has historically, at least in small towns, been very political--in large part due to the fact that many towns still elect the road commissioner.

Maintaining and repairing roads is one of the primary functions of Maine local governments and also a municipal service that after education generally takes up the largest portion of the municipal budget. Often, it is the most hotly debated topic at town meetings because it is a service that affects just about everyone in town.

The position requires hard work, trust and a desire to give to the community. Maine's communities have been fortunate to have the large number of road commissioners who have made this commitment.

ELECT OR APPOINT?

The decision to elect or appoint a road commissioner is a difficult one for most communities. The choice belongs to the legislative body--the town meeting. Historically, most small towns have kept the position elective and large communities appoint their road commissioners. In the medium-sized communities it's a mixed bag with some electing and some appointing. Sometimes the selectmen win hold the position or a town manager will be given the title with an appointed highway foreman.

According to MMA's Municipal Roads Manual, town meeting communities have three choices regarding the selection of a road commissioner: towns-people can elect someone to the position; they can give the responsibility to the board of selectmen who will serve as aboard of road commissioners; or they can give the authority to appoint the road commissioner to the selectmen.

The transition from elected to appointed brings out all the typical arguments that go to the heart of town meeting government--accountability, control and quality of service. Those in favor of keeping the position elected will argue that "elected" means direct accountability to the voters and if the job isn't done correctly, the problem

can be remedied at the next town meeting. Supporters of making the road commissioner an ''appointed" position say voters do not always elect individuals based on their qualifications and that the elective position does not allow for long term planning. Furthermore they say that the political environment of an elective office forces the road commissioner to be more concerned about "putting out brush fires" than addressing the greater, more pressing needs of the Community.

Norway's Town Manager David Holt who has also been manager in Princeton, Dexter, and Standish, as well as a selectman in Greenwood, agrees. He says that just because a road commissioner is elected, it doesn't mean he has the ability to carry out the responsibilities of the job. As a municipal manager Holt says he must select department heads based strictly on their qualifications to do the job and that this criteria should apply to the position of road commissioner as well.

RELATIONSHIP WITH SELECTMEN; DUTIES OF ROAD COMMISSIONER

"The relationship between the selectmen and an elected road commissioner is sometimes stormy " notes MMA Staff Attorney Joe Wathen in the Municipal Roads Manual. Unless there is good communication and a clear definition of responsibilities and authority that relationship will be tested.

State law is somewhat vague and conflicting regarding the responsibilities and duties of the road commissioner vis-a-vis the selectmen on road matters.

An elected road commissioner can not be disciplined or removed from office by the selectmen says Wathen. However the selectmen have ultimate control over the expenditure of town funds authorized at town meeting and therefore have the final say on most road matters. Therein lies the potential for conflict should either party wish to push the issue.

State law (23 MRSA § 2701) is reasonably clear that the selectmen have authority with regard to 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."

Other than the aforementioned statute, state law gives very little guidance on the rights and powers of an elected road commissioner. Generally, state law (23 MRSA§§ 2702,2703) discusses a municipality's responsibility to inspect roads and keep accounts, but those provisions are limited in scope. Section 2704 says that the legislative body 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 with section 2701 which gives selectmen authority to make final decisions regarding financial matters. To avoid conflicts, either the town meeting or the selectmen should approve a written policy which lists the powers and duties of the elected road commissioner.

Selectmen are also given authority to take any steps necessary to repair hazardous road conditions if the road commissioner fails to remedy a situation within 24 hours after receiving written notice to do so from the selectmen.

The duties and responsibilities of an appointed road commissioner are generally better understood than for the elected position for the obvious reason that the lines of authority are much clearer. The appointed road commissioner can be supervised and directed, disciplined if necessary and a work-plan and job description can be developed for the position by the appointing body.

PRICING THE WORK

In pricing road work, a number of communities and road commissioners rely on what they can "State Rates." What these people are referring to is the "Labor Reimbursement and Private Equipment Rates" schedule compiled and published annually by the Maine Department of Transportation. The so-called "state rates" are the maximum payment that MDOT will make to a private company or municipality for work done for the state using the company's (or municipality's) own equipment and/or labor. The reimbursement schedule lists equipment rental and labor separately and combines the two to give an equipment plus operator cost reimbursement.

MDOT's Don Whitten says that the state rates are merely a guide for municipal officials, if they want to use them. "In no way do we say anybody has to use these rates for their purposes." Whitten believes a number of towns use the state rates because they are convenient.

MDOT has been compiling these rates "at least since the 1970's", says Whitten. The process involves an in depth survey and analysis of the equipment rental rates and labor costs once every five years with input and guidance from construction managers and equipment dealers, state and municipal transportation officials, national and regional construction trade journals and cost guides. On a yearly basis, MDOT division engineers, construction supervisors and others state transportation officials get together to review the rates to determine if they should be adjusted or not. The 1993 rates should be available by mid-May. Municipal officials can pick up copies at their district MDOT office. MDOT also publishes a separate reimbursement schedule for winter rates on equipment and labor.

In calculating the labor costs, the state uses the entry level wages for a comparable state transportation worker. Table I (not included) gives the 1992 Labor Reimbursement Rates, the maximum hourly wage which the state win reimburse a municipality to cover the cost of labor for a project done by non-state workers. The reimbursement is based on the wages actually paid, but not exceeding these amounts. These labor costs do not include any allowance for fringe benefits or overhead, but according to MDOT's Whitten, if a municipality justifies its fringe and overhead expenses, then these costs could be added to the based hourly wage for reimbursement.

The Equipment Rental Rates are the maximum that the state will pay to for the use of various types of private highway equipment either with or without operators (Table II-not included). Under the column that includes an operator, MDOT has added 20 % to the per hour wage found in Table I to allow for fringe benefits and overhead.

These rates also reflect the maximum reimbursement that the state will pay to a municipality for equipment and labor for "town financed'' work. The only exception is that on certain projects where federal funds are involved equipment operators who are not state or municipal employees must receive pay equal to, or greater than, the latest prevailing Davis-Bacon wage rate. When the Davis-Bacon wage is greater than the comparable state rate, the "with operator" rates will be adjusted upward to reflect the difference between the two rates.

An elected road commissioner's compensation is determined by the voters unless charter or ordinance provides otherwise, according to MMA's Municipal Roads Manual. 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 (often based on state rates) for all the minor road maintenance and then bids out the major projects.

Some towns use the state rates as a guide; others apply them exactly as they are show on the schedule. It is important to note that towns have a variety of arrangements with their road commissioners and private road contractors and for this reason the rates may have to be modified to address the situation. For example, does the road commissioner earn a salary in addition to what is paid for actual road work; does the road commissioner use his own equipment; who pays the laborers the town, the road commissioner or the contractor; who pays fringe benefits and insurance on workers and equipment; who supplies filer and does maintenance on the equipment?

Adjustments to state rates may also be appropriate where there are regional disparities. Remember, the "state rates" are a statewide average and the going rates in various parts of the state may differ (higher or lower) depending on the availability of labor and how busy private contractors are.

The MMA Municipal Roads Manual says that under state law the road commissioner's office is supervisory in nature and that holding that office does not guarantee that the road commissioner will get all or most of the road work. It may be best to have the issue of hiring out or contracting road work decided by either the town meeting or the board of selectmen at the beginning of each budget year.

BIDDING OUT ROAD WORK

There is no state law generally requiring that road repair, maintenance or reconstruction be put out to bid, unless there is state or federal money involved which has requirements for bidding. According to MDOT, Local Road Assistance Program (LRAP) funds are to be considered "local" monies; therefore, state bidding requirements would not apply when using these funds.

The decision to go out to bid can be made by the municipal officers or the legislative body and either can delegate that responsibility to the road commissioner. In many communities, the road commissioner does handle contracts and/or bidding of road work. However, the road commissioner may legally bid on contracts only if he has no involvement in developing the specs, reviewing the bids, or awarding

LENGTH OF TERM

Reviewing the 1993 town meeting newspaper reports, three communities this year decided to extend the road commissioner's term of office from one to three years.

Residents in West Paris, Cornish and Minot opted for three-year terms for the road commissioner. The reasons for making the switch seem to come down to the need for multiyear planning and giving the road commissioner an incentive to invest in equipment.

"As far as the road commissioner goes, nobody is going to spend all that money on expensive equipment just to get the job for one year," said Cornish Town Clerk Charlene Humphrey. Cornish residents also decided to increase the terms for clerk, treasurer and tax collector to three years. Refuting the protests of some town meeting participants in West Paris that increasing the road commissioner's term to three years would make it difficult to get rid of an ineffective one, resident Joe Mackley countered that one year was not long enough for a road commissioner to organize his programs or to be judged on his effectiveness. His argument won the debate as town voters approved the longer term.

MANAGER OR CONTRACTOR?

While state law may intend for the road commissioner to be a supervisor, in reality the job of road commissioner in most small towns is done by a local contractor who owns his own equipment, has his own crew and does practically all the town's road work that he is capable of doing. In a few towns, the road commissioner may simply be charged with organizing the work, contracting projects out, and overseeing the contractors' work.

An approach to the road commissioner's job that is somewhat unusual can be found in Mount Vernon, population 1362, Kennebec County.

Jeff Kent ran for road commissioner last year at town meeting and won. Kent was a carpenter by trade and admittedly knew very little about road maintenance or construction. As a matter of fact, he stood up at the candidates' night (held before town meeting) and admitted that he had no direct experience in road work and that he had no highway equipment. He did say, however, that he was willing to learn and wanted to give it a shot. That apparently was good enough for the townspeople.

"I was looking for a change of occupation," said Kent, who had been doing carpentry for 10 years. He was intrigued with the idea of running for road commissioner, urged on by his brother who was second selectman, and did so with the thought that if he won, he could try it out for a year to see if he liked it. If not, he could always try something else when his term expired.

The job had been held by a local contractor who did most of the work with his own equipment. Kent didn't have any construction equipment when he was elected so he had to take a different approach to the job. His approach has been to spread the work around--there are about four local contractors who are willing to do the work at "State Rates"--to make sure that the right piece of equipment is being used for each job.

"Normally you'll find that the small town contractor (who might happen to be the road commissioner) has a bulldozer, backhoe and dump truck", says Kent. If they are doing all the town's work, they might not be using the right equipment for the job. For example, a bulldozer might be used where a grader would be more appropriate, says Kent.

Kent is not a big fan of bidding out jobs. He says that writing specs, getting engineers, and overseeing the work takes time and money and can limit the town's options. Instead, Kent spreads the work around to local contractors who are willing to work for "state rates." He also tries to make sure he has the right contractor with the right equipment for the job.

Also, since taking over the job of road commissioner, Kent has purchased a dump truck so that he can do some of the routine maintenance and repair work himself. 'You'd be surprised at how much patching this town does," said Kent. He is quick to point out, however, that he has no intention of building up a fleet of construction vehicles just so he can do the town's road work. "I have no intention of buying more equipment," he says.

Kent doesn't believe that his approach to the road commissioner's job is a model for any small communities to copy. "Its just one approach, he says, "it may be the right one; it may not."

And finally, Jeff Kent plans to run for re-election at this year's town meeting in June. If he's elected, then his approach must be working.