Ordinance Codification... Does Your Town Need It?

(from Maine Townsman, January 1977)
by William Livengood, Staff Attorney


It is generally a readily accepted principle that before a person should be required to follow the law he or she must first be afforded a reasonable opportunity to know what it is. It is also a fact of life in this latter half of the 1970s that more and more legislation is appearing "on the books" of Maine communities. Whether it be required by state or federal mandate, or merely to cope with the expanding needs of the community, cities and towns are currently adopting rules and regulations at an unprecedented rate.

Although the body of local law is growing rampantly in most Maine municipalities, how many towns and cities are taking adequate steps to assure that it will develop in an orderly fashion? Unfortunately, many continue to adopt ordinance after ordinance with no regard as to the effect on previous enactments of the community. No system has been devised for ordinance maintenance, preservation or revision. The result may be that no one can truly ascertain what the current status of the local law is.

Many smaller towns may feel that the infrequency of their rule-making would not justify the effort and expense of establishing and maintaining a system by which their ordinances would be organized and maintained. However, rarely does a day go by in one of these towns when some municipal official is not asked by a member of the public whether or not any local regulations exist regarding one subject or another. To give a precise answer, the official might have to perform an in-depth search of all past town meeting or council records, or risk undue reliance upon the memory of a town clerk, who has faithfully served for many years, to locate the relevant local law. Even when an ordinance has been found it may be all but impossible to determine its current status in the light of numerous recent amendments.

Ideally, our town official can refer the inquiring party to an up-to-date code of ordinances in which can be found all of the law of the municipality which is of a general and permanent nature. By reference to such a code, a potentially hazardous guess as to the status of the law can be avoided and a great deal of time saved. Local administrators would also benefit as legislative direction regarding the duties of their positions and departments would be clearly spelled out and easily available to them. Law enforcement would be made much easier as such a code would be admissible in court as primafacia evidence of its existence and validity--separate proof of every ordinance would no longer be required.

Any city or town can avail itself of such benefits. The Maine legislature has expressly authorized the adoption of such a code of ordinances by 30 M.R.S.A. 2154 which states in part that:

A municipality may revise, codify and publish from time to time in book or pamphlet form all or part of its ordinances arranged in appropriate classifications excluding the titles, signatures and other formal parts of the enacting legislation for the purpose of producing a complete, accurate code of the ordinances in force.

Enacted as a single ordinance such a revised code effects ". . . a repeal of all ordinance in conflict with it, but all ordinances in force prior to its adoption continue in force thereafter for the sole purpose of preserving vested rights acquired under the former provisions" (30 M.R.S.A. 92054(2)).

Simply stated, the code's adoption serves to consolidate all of the existing local law into one ordinance. When combined in a volume with appendices containing the municipal charter, private and special acts with special relevance to the community, and rules and regulations adopted by local administrative boards, the municipal code provides an indispensable reference tool for the administration of local government. Ordinances which do not require frequent reference or do not readily lend themselves to codification may be expressly reserved from repeal and continued in force by the code's general provisions. In all other respects, the code should reflect the complete body of generally applicable laws which are presently in effect in the community.

If it has been determined that the municipality could benefit from such a codification and the necessary authority to enter into the project has been obtained, the decision must be made as to whether or not work on the code should be done "in house" by local administrators or be undertaken by a firm specializing in such publications. Although the professionals' experience might be preferred, taxpayers' concern about the cost of the project might cause town officials to feel that their freedom of choice is greatly limited.

In recognition of this dilemma and the real need for most municipalities to, organize and revise their ordinances, the Maine Municipal Association recently initiated an ordinance codification program for its members. At present, projects are being completed in five communities and negotiations are in progress with several others for future services.

When MMA contracts with a city or town to perform codification services, it is generally the responsibility of the municipality to examine its records and provide us with two copies of all of its ordinances. Presently, a staff attorney handles the MMA codification services. He compiles the ordinances into one coherent unit with a systematic organization and numbering system and examines their current legal status and relevance to present practice and needs of the community.

To briefly explain the process, all ordinances pertaining to a single subject are grouped together and placed in chronological order. A determination is then made as to what effect the adoption of a more recent enactment has had on those which have preceded it. Amendments to an ordinance are inserted into their appropriate places and repealed sections deleted so that when the initial editing has been completed, the resulting compilation will reflect the current status of the law in the community.

At this point, the ordinances are reviewed again for internal conflicts and inconsistencies with the municipal charter or law. As it is quite likely that the records search will have "unearthed" numerous laws which no longer have any relevance to the current needs of the community, municipal administrators are contacted to garner their opinions as to the effectiveness of the current ordinances generally and the needs of their. departments. Wherever a problem is found to exist or the need for new ordinances detected, it will be brought to the attention of the town in memorandum form, together with suggestions for change.

Although one of the major objectives of the codification project will be to update and clarify the current ordinances of the municipality, it is recommended that any changes of substance or new material be expressly adopted by the legislative body either prior to or after adoption of the code of ordinances. Unfortunately, the State enabling statute is not as clear as it could be regarding the extent of revision or new material that may be adopted along with the new code, and case law from other jurisdictions has held that similar statutes have only authorized a reorganization and reprinting of laws already in existence. Obviously, this issue may be safely avoided if all new material and substantive change is given separate consideration and formal acceptance.

Also, if the code, when presented, merely represents the law which is currently in force but better organized, with obvious errors and outdated material deleted, the issue of  its adoption is not plagued by political overtones. Acceptability of new material or major changes will not jeopardize its passage. Recommendations which were made by the codifier and not accepted prior to printing and adoption, may be given further consideration by the legislative body after adoption at its leisure. In this sense the codification project actually serves to focus the town's attention on the subject areas that are the most in need of future development.

As the new code should provide a foundation upon which future enactments are to be built, it should be easily amendable. Therefore, a loose leaf format is strongly recommended so that pages can be easily inserted and deleted to reflect changes as they are made by the legislative body. In this manner, the code can be kept current and will continue to reflect the present status of the law in the community. An agreement should be made with the original codifier to perform this supplementary service on a periodic basis.

Further information regarding ordinance codification may be obtained by contacting William Livengood, MMA Staff Attorney.