Winter Roads Reprised

Training for: Legal Notes

After a classic Maine summer and a mild winter last year, it may seem both premature and improbable to contemplate the possibility of a harsh winter and overdrawn snow removal budgets. But, climate change or not, our winters can be notoriously unpredictable. (For what it’s worth, the 2017 Farmers’ Almanac foresees a cold and snowy one.) So just in case, we decided to repeat the advice we’ve given here before about winter road budget overdrafts.

Let’s start with this: The municipal officers (selectmen or councilors) have no general or inherent authority under State law to exceed appropriations (see “Budget Overdrafts,” Maine Townsman, Legal Notes, May 2007).

In addition, MDOT rural road assistance funds, which are generally limited to capital improvements, may be used for winter highway maintenance only if there are no rural state aid minor or major collector roads in the municipality and the municipal legislative body has voted that its ways and bridges are in sufficiently good repair so as not to require significant repair or improvement for at least 10 years (see 23 M.R.S.A. § 1803-B(1)(A)(2)).

That said, the longstanding law authorizing up to a 15% overdraft in municipal road budgets now includes road maintenance as well as repairs (see 23 M.R.S.A. § 2705). Thus, a road commissioner may now, with the consent of the municipal officers, spend up to 15% more than what was appropriated if that amount is insufficient for road maintenance, including snow removal, or repairs. (But note that even with this authority, any overdraft must still be funded eventually by a supplemental appropriation; the authority to overdraft the budget simply grants authority to spend more than what was originally appropriated – it does not, by itself, actually fund the overdraft.)

Moreover, if the municipal legislative body (town meeting or town or city council) has established a contingency account or has authorized expenditures from other accounts in case of emergency, the municipal officers may utilize these funds for unanticipated snow removal costs.

If there is no contingency fund or emergency spending authority and the statutory 15% overdraft has been exhausted, the municipal officers may have to seek additional funding from the legislative body. Funds may be appropriated from any available source, including surplus, unexpended balances in other accounts, or even short-term borrowing (but not from additional taxes if taxes have already been committed for the year). The municipal officers may want to couple this request with a request for emergency spending authority in the event that even the additional funds prove insufficient.

If the voters are the legislative body, the municipal officers should, if at all possible, request extra funding before the winter road budget is overdrawn. Waiting until afterwards for the voters to ratify an overdraft can be risky strategy unless the municipal officers are confident of the voters’ after-the-fact approval. (By R.P.F.) n

After a classic Maine summer and a mild winter last year, it may seem both premature and improbable to contemplate the possibility of a harsh winter and overdrawn snow removal budgets. But, climate change or not, our winters can be notoriously unpredictable. (For what it’s worth, the 2017 Farmers’ Almanac foresees a cold and snowy one.) So just in case, we decided to repeat the advice we’ve given here before about winter road budget overdrafts.

Let’s start with this: The municipal officers (selectmen or councilors) have no general or inherent authority under State law to exceed appropriations (see “Budget Overdrafts,” Maine Townsman, Legal Notes, May 2007).

In addition, MDOT rural road assistance funds, which are generally limited to capital improvements, may be used for winter highway maintenance only if there are no rural state aid minor or major collector roads in the municipality and the municipal legislative body has voted that its ways and bridges are in sufficiently good repair so as not to require significant repair or improvement for at least 10 years (see 23 M.R.S.A. § 1803-B(1)(A)(2)).

That said, the longstanding law authorizing up to a 15% overdraft in municipal road budgets now includes road maintenance as well as repairs (see 23 M.R.S.A. § 2705). Thus, a road commissioner may now, with the consent of the municipal officers, spend up to 15% more than what was appropriated if that amount is insufficient for road maintenance, including snow removal, or repairs. (But note that even with this authority, any overdraft must still be funded eventually by a supplemental appropriation; the authority to overdraft the budget simply grants authority to spend more than what was originally appropriated – it does not, by itself, actually fund the overdraft.)

Moreover, if the municipal legislative body (town meeting or town or city council) has established a contingency account or has authorized expenditures from other accounts in case of emergency, the municipal officers may utilize these funds for unanticipated snow removal costs.

If there is no contingency fund or emergency spending authority and the statutory 15% overdraft has been exhausted, the municipal officers may have to seek additional funding from the legislative body. Funds may be appropriated from any available source, including surplus, unexpended balances in other accounts, or even short-term borrowing (but not from additional taxes if taxes have already been committed for the year). The municipal officers may want to couple this request with a request for emergency spending authority in the event that even the additional funds prove insufficient.

If the voters are the legislative body, the municipal officers should, if at all possible, request extra funding before the winter road budget is overdrawn. Waiting until afterwards for the voters to ratify an overdraft can be risky strategy unless the municipal officers are confident of the voters’ after-the-fact approval. (By R.P.F.) n