Who is a member?
Our members are the local governments of Massachusetts and their elected and appointed leadership.
The most significant responsibility of the Select Board related to Town Meeting is the preparation of the warrant, which is essentially the agenda for the meeting. Every Town Meeting must be called by a warrant that states the time and place of the meeting and lists all the items of business (“articles”) to be acted on at the meeting. The Select Board governs what appears in the warrant as well as the order of the articles.
The Select Board is in charge of “opening” and “closing” the warrant, which provides the time period for the insertion of warrant articles. How long the Town Meeting warrant must be open, and how long before Town Meeting it must be opened, are usually addressed in a town’s bylaws. In some cases, Select Boards may vote to reopen the warrant after it has been closed. Under state law, the warrant must be signed and issued by the Select Board at least seven days before an annual Town Meeting and at least 14 days before a special Town Meeting.1 The way in which the warrant is publicized may be prescribed by the individual town, or it may be done in any manner approved by the Attorney General’s Office.
Select Board members may add warrant items by several means: by their own volition, by request of another town board or committee, or, in the case of the Annual Town Meeting, by written petition signed by at least 10 voters. Only those articles of business that have been included in the warrant may be legally acted upon at the Town Meeting.
The Select Board should take care when preparing the warrant to be sure that it is clearly worded, and that it contains a complete description of all subjects to be taken up at the meeting. A well-prepared warrant will do more to ensure that the meeting goes smoothly than anything else. Select Boards should work closely with their town manager and town counsel to prepare the wording of the warrant.
The format of the warrant will differ from town to town. Some town warrants provide a separate article for the appropriation of money to each town department, while most lump the appropriations for all town expenses under one omnibus budget article. Articles that are similar should be placed together, so that the Town Meeting does not cover the same ground more than once. This may be difficult, however, in communities where the order of articles is selected randomly.
Every town in Massachusetts must hold an annual Town Meeting in February, March, April, May or June, unless some other month is designated by special law or by a provision in the town’s home rule charter.2
In addition to the annual Town Meeting, special Town Meetings may be called at any time, typically for reasons not anticipated or readily accommodated by annual Town Meetings, such as necessary budgetary transfers or the purchase of land. Select Boards must call a special Town Meeting if they receive a written request, on a form approved by the Office of the Secretary of the Commonwealth and signed by 200 voters or 20% of all registered voters in the town, whichever is fewer.3 It is possible that Select Boards can call a special Town Meeting within an annual Town Meeting, and more than one special Town Meeting may be held or commence on the same date. Separate warrants must be used for each meeting. Some historic reasons for holding special Town Meetings were eased by the “Municipal Modernization Act” (Chapter 218 of the Acts of 2016), including local options for specialized revolving funds and expenditures.
Some towns, by bylaw, custom or home rule charter provision, have provided that the Town Meeting have two regularly scheduled sessions, one session in the spring and one in the fall. The intent is to focus attention on financial matters in the spring and allow for more deliberations on non-financial matters in the fall.
State law allows Town Meetings to be held in more than one location at the same time, as long as the places are connected by a public address system with loudspeakers to allow all Town Meeting attendees to hear and be heard.4 If a Town Meeting becomes so crowded that people are prevented from participating, the moderator may consult with the Select Board members who are present at the meeting and call a recess for not more than 14 days, until better facilities become available.5 It may be advisable to plan for additional rooms being available in case of overflow crowds.
Rules requiring in-person Town Meetings were suspended during the COVID-19 pandemic, allowing for towns to experiment with online or “remote” Town Meetings in a number of variations. These suspensions have required cooperation of the town moderator, the Select Board and, ultimately, Town Meeting itself to determine that an in-person meeting would pose a risk to public health. The special rules have been extended through March 2025, and the Legislature is considering a variety of proposals to provide for hybrid and remote Town Meetings on a permanent basis.
The Select Board’s primary election responsibilities include calling elections, appointing election personnel from lists of candidates supplied by the major political parties, and designating voting precincts. The conduct of state and national elections is regulated by state law. Local elections are governed by both state law and a town’s charter or bylaws.
Towns may hold their annual elections on the same day as the business portion of their annual Town Meeting or on a separate day. Towns generally hold their annual elections a week or more before or after the annual Town Meeting. The majority of Massachusetts towns use official ballots prepared by the town clerk in conformance with state law to elect local officials.
Most towns have a board of registrars of voters, which is responsible for registering voters, making lists of residents, certifying nominating papers and petitions, processing absentee voter applications, and administering election recounts. The board consists of the town clerk and three other people appointed by the Select Board. Members represent the two major political parties.
A few towns have created a board of election commissioners6 consisting of four members appointed by the Select Board for four-year terms. This board has all the powers and duties of a board of registrars of voters and all the powers and duties of the Select Board and town clerk that relate to caucuses, primaries and elections, except for giving notice of elections and fixing the dates and hours of elections. Two members must represent each of the two major political parties, selected from lists of qualified voters submitted by the town committees of the two major political parties.
Following the decennial U.S. Census, Select Boards in towns with more than 6,200 residents are required to divide the town into voting precincts.7 This is optional in smaller towns, where the Town Meeting may direct the Select Board to establish voting precincts. Each voting precinct must contain a similar number of inhabitants, but no more than 4,000 people. Select Boards have administrative responsibilities such as designating the polling places for each precinct.
In towns that use official ballots, the Select Boards call elections with notices or warrants that specify the offices to be voted for and the time when the polls will be open and closed. Parameters for voting hours are specified by state law.8 The type of voting equipment to be used is determined by the Select Board and town clerk, and must be approved by the secretary of state.
The Select Board has the important responsibility of appointing people to serve on town boards and commissions. Depending on a town’s organization and the interest of its citizens in civic life, fulfilling this duty can be a major undertaking.
The appointing authority of the Select Board may be vast or limited, depending on how the town is organized. Other elected boards and committees, the Town Meeting moderator, and the professional administrator all have some appointment responsibility, but the Select Board has the power to appoint more local officials than does any other person or group. Select Board members must ensure that the appointment process is always open and fair. All appointed committees are subject to the Open Meeting Law, so it is a good practice to make all appointees aware of their legal obligations at the time of their appointment.
Certain town officers, such as the Town Meeting moderator and members of the school committee, are required by law to be elected. State law, town bylaws and Town Meeting may authorize the Select Board to appoint others, including committees that report to the Select Board. Select Boards can appoint their own advisory committees. Usually these committees study a particular function or area and advise the Select Boards of their findings. It is important for members of advisory committees to understand that the Select Board makes the ultimate decision.
Some towns seem to have a steady supply of committed, qualified people willing to serve on town boards, but more often than not, Select Board members struggle to find good candidates to fill certain vacancies. Getting new people to serve on town boards and committees is essential to the vitality of a town, but it doesn’t happen by chance. The best way to create interest is to educate people about their town government — how it functions, what it does, and how they can become involved.
Several towns publish and circulate a citizens’ resource guide that gives a brief description of each office, board, committee and department within the town, along with a list of volunteer opportunities. Another approach is to hold an annual open house at town hall to familiarize residents (especially new ones) with town operations and to solicit their involvement. Most of the time, board members just need to brainstorm and ask around for candidate names, and then do a lot of individual asking. While it’s important not to badger anyone, it can require asking more than once to get a “yes” from a good volunteer board member.
Who is appointed to serve on a town board can be just as significant as who is hired to fill a full-time, paid town position. State law or town bylaws set out specific qualifications for membership on certain boards or commissions, but most decisions are up to the Select Board. While there is no one right way to choose an appointee, the following are some suggestions:
Unless otherwise provided by law or bylaw, a person need not live in town to accept an appointment to public office. However, if the town tells the appointee at the time of appointment that he or she must move into town within a specified time period, then his or her failure to do so means that he or she has voluntarily vacated the office.9
In many towns, Select Boards appoint board members so their terms of office expire at the same time each year. The board should keep a calendar of appointments to know when the terms of different board members will expire, and it is a good idea to publish committee appointments and their termination dates in the annual town report. When possible, Select Boards should interview candidates during a public meeting before making decisions on the appointments.
Appointments should be made by majority vote of the Select Board unless otherwise specified by law or bylaw, and should be confirmed in writing with a letter to the appointee. All appointees must take an oath of office before assuming their duties, and must receive online training regarding the Conflict of Interest Law.
Most appointed positions authorized by state law are for one-year or three-year terms. In many cases, the board may want to renew appointments for another term, but reappointment time provides a good opportunity to review the job being done by the appointee, and by the board in general, and to make any necessary adjustments.
When appointing committees for a specific purpose, a termination date should always be set beforehand. The lifespan of temporary committees can always be extended, but committees without a firm date of dissolution are often difficult to terminate.
Once appointed, town boards and commissions must be free to act on their own without interference. If the committee was appointed to advise the Select Board on a certain matter, a clear understanding should be set forth as to what, if any, independent authority the committee may have.
It is important that the Select Board maintain close communication with other town boards and departments. Some towns circulate copies of board minutes to all town departments and agencies. Many towns make the minutes of all board meetings available on the municipal website.
One way of improving coordination among town boards and departments is to schedule meetings several times a year with all department heads and board and committee chairs. These meetings can provide a good forum for discussing larger town issues that cannot be solved by one agency. Select Board members may also choose to attend the meetings of other town boards on occasion to remain informed.
Members of town boards sometimes resign in the middle of a term, creating a vacancy. The town clerk must be notified in writing for a resignation to become effective.10 If there is a vacancy on a board of two or more members, the remaining members must give written notice to the Select Board within one month.11 The Select Board and the remaining board members must, after one week’s notice, fill the vacancy by a majority vote of those voting. The Select Board must fill the vacancy themselves if the remaining board members fail to give notice within the required time. Other provisions for filling vacancies might be contained in other statutes or in the town charter or bylaws, so these should be consulted in the event of a vacancy.
In the case of a vacancy in the office of accountant, collector or treasurer, or if that person is unable to fulfill the duties of office, the Select Board may make a temporary appointment.12 The board may also appoint a temporary highway surveyor, road commissioner or tree warden under similar circumstances.
If there is a vacancy in the office of town clerk at the time of a Town Meeting, or if the town clerk is absent or unable to serve, the Town Meeting must appoint a temporary clerk by ballot.13 If a town clerk is needed to perform duties other than those at the Town Meeting, the Select Board must appoint, in writing, a temporary town clerk. If the Select Board appoints an acting town clerk, the chair of the board must notify the secretary of state’s office.
If there is a vacancy on the Select Board, and the town charter does not provide otherwise, the remaining members shall call a special election to fill the vacancy if the board gets a request in writing signed by 200 registered voters or 20% of the total number of registered voters in town, whichever is less, provided that the request is filed at least 100 days before the next annual election.14
The freedom of the Select Board to remove appointees depends on the basis of its authority to appoint them. The power to appoint does not always include the power to remove, so when dealing with these issues it is imperative to consult town counsel. Even if the board has the right to remove someone, it cannot be done for improper purposes. Claims that a removal was discriminatory or in violation of civil rights are very costly and disruptive to local government, even if the removal prevails in the end.
In most towns, the Select Board is the local licensing authority, with the ability to issue licenses and permits for a broad range of activities, such as the sale of alcoholic beverages, lodging houses, automobile dealers, parking lots, the storage and sale of gasoline, restaurants, and many other purposes as outlined in Chapter 140. This authority must be exercised strictly in accordance with the provisions set out in the applicable law and in a fair and impartial manner in order to avoid court challenges and potential liability.
There is a distinction between a license and a permit.
A license grants permission to engage in a specific activity, or to make use of property in a way that might otherwise be unlawful, or that requires regulation, or protects the public health, safety and general welfare. Select Boards may issue only those licenses specifically authorized by state law.
A permit may be issued by a Select Board for certain activities that fall under the broad police powers of the board. For example, permits may be issued for parades or to allow merchants to hold sidewalk sales.
A license is ordinarily issued for use over a substantial period of time, whereas a permit is generally for a short duration.
A person does not have an automatic right to a license merely by applying for one. An applicant must show that all necessary requirements and qualifications have been met and that a granting of the license is in the public interest. If the board refuses to grant a license, the decision must be for sufficient reasons. The decision to deny a license application or to refuse to renew a license cannot be arbitrary or capricious. Depending on the particular license, there may be specific standards that need to be met to grant the license, or to deny it or decline to renew it. Any adverse ruling must be fair and reasonable and based on evidence presented either against or in favor of the license.
As a general rule, licenses are privileges. They are not the property of the license holder. Several Massachusetts courts have ruled, however, that under certain conditions, a license can come close to being a property right and cannot be taken away without due process of law. This is especially true if the license holder can show that the license is essential to his or her livelihood, or that constitutional rights are involved.
Licensing procedures should be clear and uniform, both to ensure that applicants are treated fairly and to make the job of reviewing applications a little easier. Hearings, when required, should be held promptly. Some towns compile license requirements and procedures in a single manual — a set of licensing rules and regulations. When possible, licenses should be renewed at the same time each year.
Some licensing statutes clearly require a public hearing in connection with the granting, denial, revocation or suspension of a license. Other laws do not explicitly require such hearings. Even if a hearing is not required by law, it is often a good idea to hold one, especially if there is any hint of controversy over the license application.
The usual procedure is for the Select Board to review applications at a regular meeting, unless a separate hearing is required by law or requested by the applicant. In general, hearings that follow the basic format outlined in Chapter 2 will be in conformance with state law. As part of the hearing, a license applicant may be required to produce records, documents and other evidence to show that he or she is qualified to hold the requested license and that the activity and location of the proposed use are consistent with the public good.
A town may refuse to issue or renew certain licenses until an applicant settles any unpaid local taxes. Also, if a licensee falls behind in its financial obligations to the town, the Select Board or official issuing the license can deny renewal and can also schedule a hearing to revoke it due to the outstanding sums owed the town.
Select Boards also have the responsibility to ensure that adequate inspections are made by the proper town officials to make certain the license is being properly used. If a Select Board learns of a violation, it must provide the license holder with written notice that states specific facts relating to the violations and the time and place of any hearing to consider suspending or revoking the license.
Courts have repeatedly rejected attempts by cities and towns to use their licensing authority to outlaw such things as adult entertainment or video games. Courts have, however, upheld the right of communities to restrict certain activities by means of their zoning bylaws. State law gives towns the right to zone adult bookstores as a land use.15 Making the best use of the town’s licensing and zoning authority requires close cooperation between the Select Board and the planning board. Select Board members should always check with planning officials and the zoning enforcement officer prior to issuing a new license to make sure the activity for which the license is being granted is a permitted use. Some boards use a license input form that is sent to a variety of relevant department heads for their input on any license application.
Chapter 138 authorizes the local licensing authority to issue licenses for the sale of alcoholic beverages. All liquor licenses (except one-day special licenses) are subject to the final approval by the state’s Alcoholic Beverages Control Commission. Select Boards may make their own rules regarding the sale of liquor, but all local rules must be in conformance with state law and ABCC regulations. At the end of each licensing year, the board must file a report with the ABCC showing the number of licenses granted that year, fees charged, any violations of law by any licensees, and any findings or actions taken on those violations.16
The number of licenses that are permitted in a town depends on its population,17 unless additional licenses are allowed by special legislation or unless the number of licenses is grandfathered. Towns that have a temporary increase in population during part of the year are authorized to issue additional, seasonal licenses. Special, one-day liquor licenses may be issued to the responsible owner or manager of an indoor or outdoor activity or enterprise. Under no circumstances may a liquor license be issued to a person who has been convicted of a state or federal narcotics charge or certain other federal charges.
Both the Select Board and the ABCC have the power to suspend, cancel or revoke licenses. If the Select Board does so, the licensee may appeal to the ABCC. All commission rulings can be appealed in court. The Select Board may modify, suspend or cancel any license issued, but only after a hearing.
Alcoholic beverages: Ch. 138, Sec. 2
Auctioneers: Ch. 100, Sec. 2
Automatic amusement devices: Ch. 140, Sec. 177A
Automobiles: Ch. 140, Secs. 58 and 59
Class I, new car dealer
Class II, used car dealer
Class III, junk dealers
Billiards, pool and bowling alleys: Ch. 140, Sec. 177
Blasting operations: Ch. 148, Sec. 19
Boarding and lodging houses: Ch. 140, Sec. 23
Boats (conveyance of passengers): Ch. 140, Secs. 191 and 192
Boats (rental): Ch. 140, Sec. 194
Cable television: Ch. 166A, Sec. 3
Clubs and associations dispensing food and beverages to members: Ch. 140, Sec. 21E
Coffee and tea house: Ch. 140, Sec. 47
Common victuallers: Ch. 140, Sec. 2
Entertainment: Ch. 136, Sec. 4
Dancing schools: Ch. 140, Sec. 185H
Entertainment provided by inn holder or common victualer: Ch. 140, Sec. 183A
Explosives, storage, manufacture and sale: Ch. 148, Sec. 13
Ferris wheels: Ch. 140, Sec. 186
Food vehicles, lunch carts: Ch. 140, Sec. 49
Fortune tellers: Ch. 140, Sec. 185I
Hawkers, transient vendors: Ch. 101, Secs. 5 and 17
Junk collectors or dealers: Ch. 140, Sec. 54
Lodging houses: Ch. 140, Secs. 23 and 30
Moving buildings in a public way: Ch. 85, Sec. 18
Parking lots: Ch. 148, Sec. 56
Pawnbrokers: Ch. 140, Sec. 70
Picnic groves: Ch. 140, Sec. 188
Pinball machines: Ch. 140, Sec. 177A
Sale of articles for charitable purposes: Ch. 101, Sec. 33
Second-hand dealers: Ch. 140, Sec. 54
Shellfish: Ch. 130, Sec. 52
Skating rinks: Ch. 140, Sec. 186
Soft drinks: Ch. 140, Secs. 21A and 21B
Taxi cabs: Ch. 40, Sec. 22
Theatrical events, public exhibitions: Ch. 140, Sec. 181
The legalization of marijuana is done at the state level, but cities and towns have the authority to define how cannabis businesses can operate within their boundaries.
While the Cannabis Control Commission is required by law to engage in the licensing process for Medical Marijuana Treatment Centers and Marijuana Establishments, a municipality may implement its own licensing process, as long as it does not conflict with state laws and regulations governing these establishments.
The law allows, but does not require, municipalities to pass bylaws and ordinances governing the time, place, and manner of the operation of Marijuana Establishments, as well as businesses dealing with marijuana accessories. These bylaws and ordinances may not be unreasonably impracticable, meaning the local laws cannot be so difficult to comply with that they would subject licensees to unreasonable risk, or require such a high investment of risk, money, time or any other resource or asset that a reasonably prudent business person would not operate a Marijuana Establishment.
A municipality may pass a bylaw or ordinance limiting the number of Marijuana Establishments to 20% or more of the number of retail liquor licenses issued pursuant to Chapter 138, Section 15 (sale for off-premises consumption) in that municipality without going to the ballot. For example, if a municipality has granted 100 liquor licenses, it may set a limit of 20 marijuana retailers within its borders. When calculating 20% of the city or town’s Section 15 liquor licenses, if the calculation results in a number less than one, the Cannabis Control Commission recommends that the municipality round up to one retailer. If the calculation results in a fraction greater than one, the commission recommends rounding up to the nearest whole number.
Under state law, a Marijuana Establishment may not be located within 500 feet of a pre-existing public or private school providing education for any grades kindergarten through 12. Municipalities may adopt an ordinance or bylaw to reduce this distance requirement.
A municipality may regulate, by bylaw or ordinance, signage regarding marijuana-related uses, but the ordinance or bylaw may not impose a standard more restrictive than those applied to retail establishments selling alcoholic beverages within the municipality.
In August of 2022, the state enacted the most significant change to Massachusetts cannabis law since the legalization of adult-use marijuana in 2017. A number of provisions in the new law (Chapter 180 of the Acts of 2022) affect municipal host community agreements. The law eliminates the inclusion of community impact fees in host community agreements after the first eight years of a licensee’s operation. The law gave the Cannabis Control Commission new authority for review and approval of host community agreements — not only at license application but also at each license renewal.
In the fall of 2023, pursuant to the 2022 cannabis law, the CCC updated the state’s regulations governing adult and medical use of marijuana. The changes broaden the CCC’s authority over host community agreements and apply retroactively to existing host community agreements. When they take effect in March of 2024, the regulations will allow the CCC to review new and existing host community agreements for compliance. The new regulations also create significant new requirements for municipalities to address equity in the industry. There are also new requirements around community impact fees, including reporting requirements that the MMA has asserted are overly burdensome and stringent. An MMA webinar with attorney Nicole Costanzo of KP Law discusses the regulatory changes and their impact on host communities.
A city or town may not prohibit or inhibit the transport of legal marijuana through its locality. Local laws cannot subject licensees to unreasonable or impracticable demands or require an increased investment of risk, money, time, or any other resource or asset.
The subject of contracting and procurement is complicated. The dollar thresholds are adjusted periodically, so a town must be certain it is working with the latest information. The Office of the Inspector General offers many online resources on this topic.
Towns enter into contracts for a variety of purposes. Contracts are made in the name of the town and under the authority granted to the town by state laws and town bylaws. Typically a town manager or other chief administrative official serves as the procurement officer. In general, authorization to sign contracts must be set forth in town bylaws, the town charter, or by vote of the Town Meeting. Additionally, a contract is not valid unless all the necessary legal requirements are met, and there is a prior appropriation.
A town may also enter into an agreement with one or more other governmental units to jointly perform services or undertake any activity that the town could undertake independently. These are generally referred to as inter-municipal agreements,18 and the Select Board may authorize such contracts.
There are several different statutory schemes governing public bidding procedures for municipal contracts. The primary laws are the Uniform Procurement Act (Chapter 30B), the law relating to public works contracts,19 and the law relating to public building construction.20
The Uniform Procurement Act governs the general bidding procedures for the procurement of all town supplies and services costing above a certain amount specified by law unless the particular contract is contained in the list of exemptions, such as solid waste, engineering, insurance contracts, legal services, and certain professional service agreements. For procurements under the current dollar threshold, sound business practices are to be followed. The School Operational Efficiency Act of 2022 amended Chapter 30B to increase thresholds for school purchasing only.
If the chief procurement officer determines that selection of the most advantageous offer requires a comparative judgment of other factors as well as price, the town may issue a request for proposals (RFP). This procedure requires the submission by each offerer of separately sealed price and non-price proposals. The non-price proposals are opened first and evaluated and ranked in accordance with published evaluation criteria. After the evaluation, the price proposals are opened and a contract may be awarded to the person offering the most advantageous proposal, taking into consideration price and the evaluation criteria.
Chapter 30B also requires a public proposal process for the disposition or acquisition of interest in real property, if the value of the real property interest exceeds a statutory amount, which occasionally is changed by the Legislature.
Public works infrastructure projects include water, sewer, landfill closures, and road and bridge work. Generally, state laws governing construction, reconstruction, alteration, remodeling, or repair of any public works project require sealed bids when a contract is valued at more than the statutory amount. When such a contract costs more than an amount in the most recent statutory amendment, it must be awarded in accordance with the public bidding procedures of Chapter 30, Section 39M. This provision requires the preparation of written specifications and an invitation for bid, advertising of the contract in accordance with established procedures, and the award of the contract to the lowest responsible and eligible bidder.
If the contract involves the design, construction, reconstruction, installation, demolition, maintenance or repair of any building by the town, the process to be used depends on the estimated costs. For projects estimated to cost in excess of the current statutory limit, the contract must be awarded in accordance with the filed sub-bid law.21 This law requires the preparation of written specifications and an invitation for bid, the separate solicitation of filed sub-bids and general bids, advertisement of the contract in accordance with established procedures, and the award of the contract to the lowest responsible and eligible bidder. A building is defined as any structure with four walls and a roof, not including sewer or water pumping stations.
Municipalities may use the bid procedures contained in Section 5 of Chapter 30B for contracts for construction materials if the purchase entails no labor.22 The bid procedures of Chapter 30B, Section 5, differ slightly from those of Chapter 30, Section 39M.
In many ways the Select Board functions as the board of directors for the municipality. In this role, Select Boards should embrace a process — and set aside dedicated time — for strategic planning, in order to establish long-term goals and monitor implementation. This process can be particularly helpful when a community is thinking about a new public building, an economic development plan, more recreation opportunities, or other goals that might seem out of reach.
Strategic planning is the process of assessing where you are, identifying where you want to be, and clarifying the steps that need to be taken in order to achieve those community goals. The investment of an extra meeting or two can provide a roadmap for the future of your community. It’s an opportunity to discuss and agree upon a collective vision and values as a community.
Starting the process can feel overwhelming and time-consuming, but it doesn’t have to be. One approach used by some communities to initiate the process is an off-site board workshop on a Saturday or a weeknight when the board does not regularly meet. This allows a board and the community’s chief administrative officer to meet in a more casual, collegial setting in order to work collaboratively to set goals and strategize about implementation, with the added benefit of team building. A retreat is typically called for the specific purpose of strategic planning, with a focused discussion and a clear end time. Keep in mind, however, that the retreat is still subject to the Open Meeting Law.
It is key to have one person — a board member or maybe an outside professional facilitator — who “owns” the process and ensures that the board does in fact follow through with the agreed upon goals.
A strategic plan doesn’t need to be more than a few pages, and should outline these main ideas:
A strategic plan gives focus to how board members — and sometimes staff — spend their time. Once the plan is established, the board should make time on a quarterly basis during its regular meeting agenda to revisit the strategic plan and check in on progress. The board should also commit to reviewing and revising the plan as necessary, and whenever new members join the board. This helps to minimize surprises and make needed course corrections as appropriate.
The International City/County Management Association offers a free, 31-page “Retreat as Management Tool” report that discusses the steps to success to help in planning a productive retreat.
Towns have exposure to a range of risks that require a combination of self-insurance and insurance, including:
Towns also should consider:
In addition, towns provide health, dental, disability and life insurance as part of their employee benefits package, as defined by Chapter 32B. For these benefits, towns may be self-funded, fully insured, or a combination of the two.
It is essential that towns carry adequate coverage across all lines to protect them against claims and to help them recover from any damages to town property. Generally, a town budget does not have the capacity to absorb a major loss, and bond rating agencies view insurance coverage as a key element of sound fiscal management.
The Tort Claims Act23 provides that municipalities are liable for the negligent or wrongful acts their employees committed within the scope of their employment. In most circumstances, government employees are immune from individual liability, though there are circumstances where immunity may not apply and they may be open to individual liability.
Under the Torts Claim Act, a town employee who was negligent would be immune from liability, but the town would be liable for up to $100,000 per plaintiff. Those who intend to sue under the Tort Claims Act are required to present a written claim to an executive officer of the town within two years of the date of the cause of action and the lawsuit itself must be filed within three years. Section 8 of the law provides that a town may purchase insurance to cover damages incurred under the act. The law, however, specifically prohibits indemnification if the employee acted in a grossly negligent, willful or malicious manner. The Tort Claims Act also establishes circumstances under which a town would not be liable for claims arising out of the conduct of its employees. An employee who commits assault, battery, false arrest, false imprisonment, slander, libel, or intentional infliction of emotional distress could be prosecuted personally.
Since all local governments have exposure to risk, it is important to develop programs that protect the community from loss. Methods of protection include the purchase of insurance; minimizing or eliminating the risk (e.g., closing a beach when it is unsafe to swim); and reducing risk by systematically making operations safer (e.g., establishing rigorous safety training programs for employees who encounter hazards in their work). The process used to identify and evaluate possible areas of loss and to reduce or control losses is called risk management. Risk management may be applied to property, liability, workers’ compensation, and employee benefit programs.
An effective risk management program should include the following:
The Massachusetts Interlocal Insurance Association offers many online resources to help communities manage their overall risk, including loss prevention and loss mitigation.
One area of potential municipal liability arises from the maintenance and repair of public ways. State law24 requires public ways to be “reasonably safe and convenient” and provides for personal injury or property damage claims arising from defects due to a lack of repair or insufficient railings. For a claim to be successful, the defective condition must be the sole cause of the alleged injury. If negligence by the plaintiff or another party contributed to the injury, the claim is invalid. The law is not applicable to any defect (such as a sewer backup or water main rupture) that resulted in damage to private property, since the public way is not involved. If an injury occurs due to ice or snow on the road, the town would not necessarily be liable, as long as the road was otherwise safe and convenient.
Self-insurance involves establishing a special fund to meet expected losses, rather than paying for losses as they occur. This fund can be invested by the town before money is paid out as claims. A town may decide to self-insure for certain types of risk, such as workers’ compensation, or for a range of risks, including property, general liability and employee benefits. A town may use a combination of insurance options with retentions and deductibles, but it is critical to seek professional advice. Even with retentions and deductibles, funds should be budgeted to meet these obligations.
Self-insurance programs may be financed with a reserve fund, which must be adequate to pay all projected losses, costs and attorneys’ fees. The fund should not be more than the town would have paid for conventional insurance. State law25 specifically allows towns to set up reserve funds for workers’ compensation and property losses, but not for liability losses.
A self-insured municipality usually protects itself from unlikely, but potentially costly, claims by taking out a limited form of insurance from a private insurer. This insurance may take the form of excess insurance or a product called “reinsurance.” If losses in a given year exceed the negotiated amount, either because of an unusual number of claims or an unusually large claim, the reinsurance policy covers the excess.
Self-insurance is not widely used or considered a best practice. Administering the program and the reserve funds can be cumbersome for staff.
State laws allow cities and towns to form workers’ compensation and property and casualty self-insurance groups. The nonprofit Massachusetts Interlocal Insurance Association (MIIA) provides a range of insurance services to member communities of the Massachusetts Municipal Association. The Division of Insurance provides strict oversight regarding statutory, regulatory, financial and operational requirements.
Select Boards have a role in acquiring, renting and disposing of most town property. All town property that has not been placed in the care of any particular town board, officer or department by Town Meeting vote or bylaw is under the control of the Select Board. Most actions concerning town property must be approved by Town Meeting. In the case of disposing of or changing the status of open space, state law establishes a specific process. (For more on this, see Chapter 8, Public Lands and Article 97.)
Towns may acquire property by gift, tax foreclosure, purchase or eminent domain, subject to provisions in their charters or any special acts of the Legislature. Acquisitions by purchase or eminent domain must be authorized by a two-thirds vote of Town Meeting.26 In addition, the Town Meeting must appropriate money to acquire the land.
Towns may purchase or take land only for a clearly identifiable public purpose, and the Town Meeting’s action may be invalidated if the land was taken for a non-public purpose. Courts have held that towns may acquire property and lease it to others, but only if the property will be used for the public purpose for which it was acquired.
Towns may acquire interests in land outside of their own boundaries, typically for water supply or for public utilities. In highly developed towns, acquisitions outside town boundaries may become increasingly common for uses such as cemetery space. A town is not required to pay property taxes on land it owns in another municipality, but state law requires that the municipality be paid an amount in lieu of taxes.27
A town cannot become the owner of an interest in land without giving its consent. When a town buys a piece of property, that consent is implied by the purchase price or other considerations. Other deeds of property to the town (or to “the inhabitants of the town”) must be accepted and approved by the Select Board. References to “sewer easement,” “drainage easement,” or “water easement” on a recorded plan, for example, are not valid unless they are accompanied by a document accepted by the Select Board. This safeguard is designed to ensure that the town doesn’t end up with property it doesn’t want.
It is rare for towns to use eminent domain, or the right of a government to take private property for public use without the consent of the owner. When land is taken by eminent domain, the owner has a right to protest the town’s determination of what the property is worth. If an owner wins a land damage suit, the town must pay the judgment, with interest, on any amount above the tendered amount.
There may be occasions when taking land by eminent domain is the best alternative, such as when a town is unable to settle on terms with a property owner, or when it is impossible to identify everyone with interests in a property. Town counsel can ensure that legal procedures are strictly followed.
Towns are required by law to compensate the party whose interests are being taken, and the award of damages must be supported by at least one appraisal.28 State law29 allows the town to recover all back property taxes owed to the town on the property during eminent domain proceedings. The collector should give written notice of the claim in the amount of the lien for taxes before any award of damages is paid.
The process of taking property by eminent domain requires the Select Board to execute and, within 30 days, to record an “order of taking” in the appropriate registry of deeds. Following the recording of the order, a “notice of taking” must be given to the property owner, stating the purpose and extent of the taking, the amount of damages awarded, the time and place where the payment of damages will be made, and the time within which a petition for damages may be filed in the Superior Court.30 Some takings require that the town help to relocate occupants and businesses dispossessed by its action.31 Town counsel should be consulted for any and all aspects of an eminent domain project to ensure compliance.
Once town officials determine that property under their control is no longer needed for a particular public purpose, they should notify the Select Board requesting a Town Meeting warrant article. If authorized by a two-thirds vote of Town Meeting, the Select Board may transfer the control or management of the property to another town department or for another municipal purpose.32 Select Boards may choose to lease town buildings but for not more than 30 years.33
It is allowable to meet in executive session when considering the purchase, exchange, lease or value of real property in cases where an open discussion might compromise the town’s negotiating position.
Appraisals of land are exempt from public disclosure for a limited period of time under the public records law.34 The law states that appraisals of property that have been, or will be, acquired are confidential until a final agreement is entered into, until any litigation relative to the appraisal has been terminated, or until the time for filing litigation has expired.
Town counsel should be involved in any property acquisition to ensure that the proper procedure is followed and that the town is getting a good title to the property.
Towns are sometimes asked to fly flags on town property in support of specific groups or causes. In a 2022 decision in a case involving the denial of a flag request by the city of Boston, the U.S. Supreme Court ruled that municipalities may not arbitrarily approve or reject individual requests, but may create policies that would limit flag flying to government-approved messages. Towns are advised to consider a flag bylaw or policy to ensure control over what flags may be flown on town flagpoles, and to take an active role in the selection of flags and/or the crafting of messages on flags. If a town does not have a policy in place, it may be legally difficult to deny a citizen request to raise a flag that the town deems unacceptable or inappropriate. (In order to ensure compliance with the Supreme Court decision, the Boston City Council adopted a new ordinance that requires a City Council resolution or mayoral proclamation in order for a flag to be raised.)
The Department of Public Utilities is responsible for regulating utilities in Massachusetts, while towns have selective control over the placement of poles and transmission lines. Companies wishing to relocate utility poles must apply to the Select Board, which will hold a public hearing on the request. The Select Board may permit an increase in the number and height of wires and the alteration of the poles and abutments. Additionally, poles normally erected by one utility are used by other utilities.
The Select Board does not control the construction of transmission lines, except where those lines cross a street. Electric companies are required by law to apply to the Select Board for permission to construct transmission lines on, under, or across a public way. The Select Board must hold a public hearing, and it may grant a location for a line specifying its location, the kind of poles or abutments, the number of wires and the height to which cables or wires may run. A utility may appeal a denial or a failure to act to the DPU.
The Select Board may also allow the construction of telephone, telegraph, cable television, or electric lines upon, along or under streets for private use. Once constructed, the line and the poles and structures connected with it become the property of the town and are subject to regulation and control by the Select Board.35
Towns are permitted to establish their own gas and electric companies, and there are about 40 municipal light departments that supply electricity to local customers. Many of these departments have joined the nonprofit Massachusetts Municipal Wholesale Electric Company.
In 1996, the Federal Energy Regulation Commission ruled that the wholesale power market must be open to competition and that public utilities owning transmission lines must provide open access. Municipal electric departments are not subject to the same regulations as investor-owned utilities, but they have been encouraged to provide choice of electricity suppliers in their communities. Deregulation also allows for electricity load aggregation.
Recently, some towns have established municipal light plants to operate municipal broadband systems.
Every five years, two or more Select Board members (or their designees) are required by law36 to locate the town boundaries and record with the Select Board and the town clerk the boundary markers they were able to find and those they were not. A copy of the record must be sent, by registered mail, to the town clerks and Select Boards of all contiguous towns. Select Boards are free to decide the manner of carrying out this mandate, but there should be evidence to support any determination. Boundaries may be located by reference to definite locations and geographical features, such as bodies of water, highways, state lines, and monuments. Evidence can include maps and documents, wide acceptance supported by local assessment and taxation, the performance of governmental functions, and local understanding and practice.
Contiguous towns are required by law to share the cost of erecting permanent stone monuments to mark their common boundaries. If the border is a non-navigable stream, the true boundary lies along its centerline. In seacoast towns, the boundary line between adjoining towns changes with the natural changes of the shoreline.
If there is a dispute between towns over the true location of their common boundaries, the state Land Court has the power to decide where the line falls. In making that determination, the Land Court will generally consider manmade and natural monuments to be more authoritative than written descriptions, courses and distances. The Legislature has the sole power to change boundaries between towns.