Town Manager Plan By Charter or Statute?

(from Maine Townsman, April 1977)
By Charles M. Jackson

A community has two alternatives for the adoption of a town manager form of government:

Charter Adoption or Revision

Prior to the enactment of Municipal Home Rule Powers, the adoption of a local governmental structure differing from an existing selectman-town meeting form (such as adoption of a mayor-council form) or any major changes in structure could only be accomplished by Private and Special Act of the Legislature, subsequently submitted to the voters of the town for final adoption. Additionally, after 1939, a town could adopt a town manager plan under the old Town Manager Enabling Act originally enacted in that year.

In 1970, what is known as Municipal Home Rule Powers were granted to the municipalities by the enactment of Article VIII-A of the Constitution of the State of Maine.

Section 1 of Article VIII-A states that:

"The inhabitants of any municipality shall have the power to alter and amend their charters on all matters, not prohibited by Constitution or general law, which are local and municipal in character. The Legislature shall prescribe the procedure by which the municipality may so act."

The effect of the grant of Home Rule powers is that, in general, Legislative action or approval is no longer necessary in order for a municipality to adopt or amend a local charter. Rather, establishment or revision of, or change in, the local governmental structure may be accomplished by the voters solely on the local level through the prescribed procedure.

Acting pursuant to the direction of Article VIII-A, the Legislature enacted 30 M.R.S.A. c. 201-A [Home Rule], 1911-1920. The purpose of these statutory provisions is to further define the scope of the Home Rule powers and to specifically prescribe the procedures that must be followed in the adoption, revision or amendment of a local charter.

The complete procedure that must be followed is laid out in 30 M.R.S.A. 1912, 1913, 1915 and 1916 and must be complied with in its entirety by a municipality wishing to adopt a charter by Home Rule.

As a broad overview, the basic aspects of the process include:

The question of whether or not a charter commission shall be established to develop a proposed charter or charter revision is determined by the voters; and the referendum question may be placed on the ballot either by order of the municipal officers [30 M.R.S.A. (1912 (1 )] or by voter initiative through a petition procedure [30 M.R.S.A. 1912 (2 and 3)].

If a charter commission is established, it must be comprised of 6 members, elected either at the same municipal election as the referendum question for the charter commission or at an election held within 60 days of the referendum question, and 3 members appointed by the municipal officers. 30 M. R.S.A. 1913 (1A).

The charter commission is to hold a public hearing within 30 days for information gathering, file its preliminary report and explanation within 9 months, to be distributed throughout the municipality, and file its final report within 12 months. 30 M.R.S.A. 1913(5).

After receiving the final report, the municipal officers must submit the recommended proposed new charter or revision to the voters as a referendum question. To prevent passage or defeat by a small minority, the total number of votes cast for and against the question must equal at least 30 percent of the total cast in the town at the previous gubernatorial election.

Adoption of a town manager form of government by charter allows a municipality a greater degree of flexibility in that it is not restricted to the format as laid out under the statutory town manager plan. As such, the charter process would allow a community to develop a format that is specifically tailored to suit the particular needs and character of that individual community.

However, it is not a quick or simple process to be taken lightly. It involves substantial effort and research on the part of the commission, with substantial support and information from the town officials and citizen participation, so that a governmental structure that is functional, practical, understandable, efficient, and consistent with State law may be developed.

Adoption of Statutory Town Manager Plan

As referred to before, towns were originally given the ability to initiate a town manager type of government under the old Town Manager Enabling Act of 1939.

More recently, in 1969, the original plan was revised to eliminate some of its inadequacies and it is this revision, with amendments, that comprises the present statutory town manager plan found in 30 M.R.S.A. 2301 - 2320.

The revision eliminates some of the structural deficiencies of the old act, permits the town meeting to revise and integrate administration under authority of the town manager, and contains additional provisions that: specifically relate to managerial qualifications, tenure, absence and disability; expand and define managerial duties; clarify the role of the selectmen as it relates to administration; permit, at the discretion of the town, customarily elective offices to be filled by managerial appointment; and grant the town meeting broad power to enact ordinances governing administration. See Haag, The Manager Plan in Maine, 1971, p 52.

With the adoption of the town manager plan, there are certain aspects that must be done according to the plan, and certain areas in which a municipality may exercise some choice.

30 M.R.S.A. 2311 requires that the town manager plan must be adopted at a meeting held at least 60 days prior to the annual meeting at which it is to go into effect and, once adopted, is to remain in effect until revoked at a meeting held at least 60 days prior to the annual town meeting or by the adoption of a charter. 30 M.R.S.A. 2311 (1, 3).

In regard to the appointment and qualifications of the town manager, the plan requires that he be appointed by the Board of Selectmen, that he be chosen solely on the basis of his executive and administrative ability with special reference to actual experience, that his compensation be determined by the selectmen, and that he is to hold office for an indefinite term unless otherwise specified by contract. 30 M.R.S.A. 2312, 2313(1, 2). Further, the manager may not be allowed to serve as moderator, selectman, assessor or member of the school committee. 30 M.R.S.A. 2312.

The plan also stipulates a certain procedure that must be strictly followed concerning the removal and suspension of the town manager.

Importantly, the statutes further stipulate that the government of each municipality functioning under the town manager plan must consist of the following: town meeting, elected Board of Selectmen, elected school committee, appointed town manager, and other officials and employees appointed as required by the plan, state law, or local ordinance. 30 M.R.S.A. 2311 (2).

However, except as limited by the above, the plan allows the town to continue or change the status of other town positions to a certain extent.

The town may continue to elect by ballot the moderator, assessors, overseers of the poor, clerk, and treasurer; and the election of town officials at the last annual town meeting prior to the adoption of the plan shall require that such officials continue to be elected unless the town otherwise designates. 30 M.R.S.A. 2312.

Concerning customarily elected town positions, this means that the municipality may continue to elect to fill the office, change the office from an elected one to one filled by managerial appointment, or designate that the town manager shall serve in that capacity, except for those a manager is not allowed to hold.

Concerning appointed positions, unless the municipality provides otherwise by ordinance, the law transfers the majority of the appointing powers from the selectmen to the manager as follows:

The manager DOES appoint all single town officials that the Maine statutes require the municipal officers to appoint.

The manager DOES NOT appoint members of boards, commissioners, committees, or single assessors that the Maine statutes require the municipal officers to appoint. Such boards, committees, etc., remain appointed by the selectmen.

The manager DOES appoint all other officials, subordinates and assistants. 30 M.R.S.A. 2317(F)

The municipality may alter this pattern (and create additional positions to be appointed) but only by the adoption of an ordinance that so designates. Otherwise, the statutory pattern is controlling.

A municipality may also expand beyond the basics of the statutory plan in that it may, by ordinance, create, determine and further define the powers and duties of various executive and administrative departments, boards and offices of the town, in addition to those required by law, except the school department.

Finally, any 2 or more towns are authorized to enter into an agreement, not inconsistent with the plan, for the purpose of employing and sharing a town manager. 30 M.R.S.A. 2319(1).

Under such an agreement, the selectmen of the contracting towns are to act as a joint board for the purposes of selecting or removing a manager and determining his total compensation, with each town having a single vote. 30 M.R.S.A. 2319(2, 3).

The agreement must specify a formula for determining the percentage of the manager's salary to be contributed by each town and the method to be employed in accomplishing partial or complete termination of the agreement. 30 M.R.S.A. 2319(3, 4).

The roles and relationships of the town manager and the board of selectmen will be discussed in Part 2 of this article contained in next month's MAINE TOWNSMAN.

*Note that for purposes of this article as well as the article entitled "Roles/Relationships under Statutory Town Manager Plan," Maine Townsman, May 1977, and the Legal Note entitled "Manager Holds Multiple Offices," Maine Townsman, July 1984, all references to former Title 30 have been changed to Title 30-A, as follows:

Former Title 30 Section New Title 30-A Section
1911-1920 2101-2109
2060 2526
2301-2320 2631-2639

In substance, most of the above statutes have not materially changed. However, the reader is cautioned to refer to the new Title 30-A before relying on the articles' characterization of former Title 30.