First, I will list the relevant statutes from Maine that I will discuss.
Authority to 3 or more. Words in any statute, charter or ordinance giving authority to 3 or more persons authorize a majority to act when the statute, charter or ordinance does not otherwise specify. Notwithstanding any law to the contrary, a vacancy on an elected or appointed body does not in itself impair the authority of the remaining members to act unless a statute, charter or ordinance expressly prohibits the body from acting during the period of any vacancy and does not in itself affect the validity of any action no matter when taken.
Shall; must; may. "Shall" and "must" are terms of equal weight that indicate a mandatory duty, action or requirement. "May" indicates authorization or permission to act. This subsection applies to laws enacted or language changed by amendment after December 1, 1989.
The following excerpts are but one example of a particular regulatory board (this case, professional land surveyors) that might be affected.
Rules (Title 32, Ch. 141) The board may establish guidelines and rules...
Duties and powers (Title 32, Ch. 141) The board shall administer and enforce this chapter
Meetings; chair; quorum. (Title 32, Ch. 141) The board shall meet at least once a year to conduct its business and to elect a chair. Additional meetings must be held as necessary to conduct the business of the board and may be convened at the call of the chair or a majority of the board members. Four members of the board constitute a quorum.
And finally, since it might be relevant, here is one general rule pertaining to all occupational boards...
- Quorum; chair (Title 10 §8010) Notwithstanding any provision of law to the contrary, a majority of the members serving on a board or commission under section 8001, subsection 38 constitutes a quorum. The board or commission shall elect its chair.
I want to know how a vacancy on this board might affect the actions the board can take. Suppose there are only 6 members appointed to the 7 member board for the course of 2 calendar years.
Law #1, which I cited above, almost seems to answer the question in favor of the undermanned boards. However, that law says specifically that where authority is given to a group, then the majority of that group is permitted to act. Law #1 does not say that where a duty is imposed upon a board, that the majority may assume that duty alone. And we see that there is definitely a distinction in law #2. Does that mean, for example, that the whole of the land surveyors board "must" meet at least once per year? Yes or no?
If you're thinking is that we would be lead to an absurd conclusion in thinking the whole of the land surveyor's board would be required to also (as in law #4) "administer and enforce" and that the "obvious" purpose of law #1 was to avoid such a burden, I think it is certainly possible that the board could develop its own bylaws to handle voting procedures during absences. If the board, on day 1, voted to empower a smaller minority to handle certain business, that would effectively be a case where the board had fulfilled its duty through delegation. No?
It is not so important to me that there always 100% of the time be a full board. The important thing to me is that these occupational boards are meant to be filled by a majority of professionals in the field, plus a couple of lay persons for balance. Guess which seats are empty most often? The lay persons. I understand you can't always get people to show up, but if the laws say the board is composed of lay persons too, they ought to show up at least once a year like the law says. That's my take, and I think it provides a little bit of legislative intent to back up that side of the argument.
Case history on this sort of thing is scant, as far as I can see. Again, I reiterate the question...here in Maine, how do you think vacancies on a board impact board actions? And why?