MAINE MODERATORS MANUAL
FIFTH EDITION 1989

Maine Municipal Association
COMMUNITY DRIVE
AUGUSTA, MAINE 04330
(207) 623-8426
1-800-452-8786
MAINE MODERATORS MANUAL
RULES OF PROCEDURE
(Revised 1980)

Type of Motion	Second Required	Debatable	Amendable	Majority Vote	Recon- sidered	Other
Adjourn	yes	no	no	yes	no	D
Amend	yes	yes	yes	yes	yes	D
Appeal	yes	yes	no	yes	yes	A
Limit Debate	yes	no	yes	2/3	yes
Voting Method	yes	no	no	yes	no	A
Main Motion	yes	yes	yes	yes	yes	D
Nominations	no	no	no	N/A	no
Postpone to Time Certain	yes	yes	yes	yes	yes	D
Previous Question	yes	no	no	2/3	no	D
Recess or Adjourn	yes	yes	yes	yes	no	D
Reconsider	yes	yes	no	yes	no	A,B
Take up Out of Order	yes	yes	no	2/3	no
Withdraw a Motion	no	no	no	yes	C

 Yes - This action is required or permitted
  No - This action cannot be taken or is unnecessary
   A - This motion may be made when another motion has the floor
   B - This motion may only be made by a person who voted on the prevailing side
   C - A negative vote only on this motion may be reconsidered
   D - See text (Priority of Motions)

This is a guide for parliamentary procedure at town meeting or a special town meeting. It is a revision of the "Maine Moderators Manual" first published in 1964 and again in 1974. The rules are few and simple because a town meeting is no place for complex parliamentary procedure. A town meeting is not a continuing body. In other words, each meeting is a separate session as if there has never been one prior to it or nor would one follow it. This means two things: First, that the actions of one town meeting do not bind a later town meeting, and second, that the rules of procedure to be used by a town meeting must be adopted by that body at the start of each session.

The rules of procedure set out in this manual are specifically designed to be adopted by the town meeting and to be used by it during the course of that meeting. The primary purpose of this manual is to assist town meetings in transacting their business in an orderly fashion. Complex and sophisticated rules of parliamentary procedure would serve only to slow up and complicate the process of a town meeting, and moderators are well advised to make every effort to keep their rules simple.

This manual is not designed to be authoritative. Rules set forth here are suggestions which, if adopted by any town, will assist that town in orderly town meeting procedure. The law is clear in Maine at least, that any town may adopt for itself any reasonable rules of procedure to govern the town meeting. The best case on this subject is Bullard v. Allen, 124 Me. 251 at page 250.

In recent years towns have been called upon to increase the scope of their activities and their services. This means that the business of municipal government, the issues facing town meetings, and the decisions the citizens will be called upon to make in town meeting will be more complicated and more technical. Simple rules of town meeting procedure then become mandatory in order to keep the town meeting business orderly and understandable.

A. Election and Tenure

No matter how the town meeting votes for the election of all other town officers, whether by nominations from the floor using written ballot, or by secret (Australian) ballot, the moderator is always elected by written ballot. 30-A MRSA § 2524 provides that the town clerk, or in his absence a selectman or constable, shall open the town meeting by calling for the election of the moderator. The clerk would receive the nominations of various persons for that office and would receive and count the votes for the moderator. The votes referred to here are the slips of paper that the voter writes the candidate's name on.

B. Duties

A moderator is subject to the same penalties for neglect of official duty as are other town officials. (30-A MRSA § 2524 and 2607).

C. Powers

One of the most important of these is the abusive use of parliamentary procedure by some members of the town meeting. Not infrequently at a town meeting some person will attempt to use certain parliamentary rules that have little or no application in the town meeting. These technical motions serve merely to confuse the average voter and delay the action of the town meeting. In the event this happens, the moderator should inform the voter that that particular rule is not being used and what rule is being used in its place. If the voter insists, the moderator has no recourse then but to rule him out of order. While this is not a frequent situation, it will happen and the moderator should be prepared to handle it rapidly and firmly.

The second category is the matter of parliamentary order. This involves the priority of motions, that is, the difference between main motions, amendments, subsidiary motions, and the like. The general rule here is that only one motion may be legally before the meeting at any time, and it is important to closely follow this rule to prevent complete confusion, in the event that a second motion is offered before the first motion is disposed of, the moderator should indicate that the second motion is not in order and should repeat the essence of the motion that is then being considered by the town meeting. Keeping one subject only before the meeting and keeping all of the voters discussing that single subject will probably take 90% of the average moderator's time and efforts. Another item that may appear from time to time under this heading of parliamentary order is the occasional use of abusive or disrespectful language by one of the voters in reference to either a subject or another voter. On most occasions these are completely inadvertent, but the moderator should quickly recognize the situation and put an immediate stop to it. Failure to control this type of conduct is one of the quickest ways that a town meeting can degenerate into an unruly situation.

Occasionally a moderator will be confronted by a situation where some person in the town meeting will conduct himself in a disorderly manner. This can happen in a number of different ways from the threat of physical violence on the one hand to abuse or disrespectful language, or continually interrupting or disrupting the orderly conduct of the town meeting. If this happens, and the moderator feels the need of some action to control it, he or she may, under the provisions of 30-A MRSA § 2524, have a constable escort the unruly person from the meeting and hold that person in confinement until the meeting has adjourned. This is strong action and should be used only if the situation calls for it but, when the situation does call for it, the moderator should not hesitate to use this type of action.

Another power that the moderator possesses during the town meeting is the power to swear in the newly elected officers. In towns where municipal officers are elected by being nominated from the floor with paper ballots being cast immediately, it is the general rule that moderators line up the successful candidates and swear them to office. Later the moderator makes out certificates on the persons to whom he administered the oath and files these with the town clerk. In towns that use the 2528 secret ballot, the Australian ballot so- called, the moderator may or may not swear these persons to their office. More often than not the moderator does not in this situation because the successful candidates are rarely present at the time the outcome is announced. It is important to note here that this power of the moderator exists only during the open sessions of the town meeting and the power is lost immediately upon adjournment. In the event that the town meeting is adjourned to a time certain, recessed or postponed, the moderator does not possess this power between open sessions and an oath administered by him during these times is illegal.

The final act of a moderator at the end of an annual town meeting or at any other town meeting where an election is held is to certify the outcome of the vote. In the type of balloting where nominations are from the floor, the moderator should make out a list of the offices and the persons who were successfully elected to each office. He or she then certifies over his or her signature this fact and transmits the certificate to the town clerk for recording. In the case of a Section 2528 secret ballot, The Australian ballot so-called, most moderators take a blank ballot, insert opposite the name of each candidate the actual number of votes that candidate received and indicate the winner in each category. At the bottom of the ballot they would execute a jurat indicating that this is the outcome of the election and certify this is an accurate record of the vote. This is given to the town clerk who then records it. In the event of a ballot inspection or recount, this is the official vote that is acted upon.

Maine law vests each town meeting with the power to establish its own rules of procedure. In the event that the town meeting does not adopt any rules, it is then the moderator's prerogative to establish simple rules of procedure to govern the conduct of the meeting. It is hoped that the outline of parliamentary rules in this manual will be adopted and used by most town meetings. It would not be a bad idea from time to time to print that table in the town reports so that citizens can use and understand it. A simple motion to adopt these rules would be the following: "I move that the town adopt the rules of procedure set forth in the Maine Moderator's Manual 1989 Edition."

Occasionally a moderator will make a ruling that is clearly erroneous, or sufficiently so, that it meets with general disfavor by the town meeting. If this happens, any qualified voter may appeal to the meeting to overrule the moderator's ruling. The voter should state the rule that he believes covers the situation. The moderator is then obliged to poll the house to see whether or not the moderator is sustained. The question here is sustaining the ruling of the moderator.

D. Deputy Moderator

A. State Law

B. Special Situations

The first of these is the negative motion. A negative motion is one where the voter must vote "No" in order to mean "Yes". The motion to "pass over" is a type of negative motion. Here the voter must vote "No" in order to have the matter considered at all by the town meeting. The confusion that arises from a negative motion, confusion not only in the voter's mind, but in the entire balloting process, makes it imperative that moderators not accept this type of motion. A negative motion does not necessarily have to have negative language in it. It is negative if the plain meaning of the motion in order to be implemented by the vote requires that the voter vote "No."

The matter of amendments has been the cause of a considerable amount of difficulty and there is little to guide the town meeting in this line. Probably as good a general rule as can be provided is that a procedural amendment is always in order, while a substantive one rarely is. A procedural amendment is the type of amendment that changes the manner in which the article or vote is to be carried out. A substantive amendment is one that deals with the subject matter itself. A good example here is an article in the warrant to build a high school and appoint a three-member building committee. A procedural amendment would be to change the size of the building committee, specify certain rooms in the high school, and things of that type. The substantive part of the article is the high school. An amendment to change high school to fire station would be an example of a substantive amendment and would be illegal.

There is a special rule that applies to amendments when the sum of money to be appropriated appears in the actual working of the article. The rule here is that the amount stipulated in the article cannot be increased. It may only be adopted as is or a reduced amount. See Austin v. York, Me. 304 at page 306. This rule does not apply when the sum of money is set out in a budget committee recommendation that is not part of the article but is placed beneath it. In this latter instance, any amendment as to the amount of money is in order.

Another special rule applies to ordinance enactment or amendment articles. The working required by 30-A MRSA § 3002 for such articles calls for a "Yes" or "No" vote on the ordinance as posted with the warrant. No amendments should be accepted from the floor.

The last item is the majority vote. The definition of a majority vote occasions some discussion and disagreement. The generally-stated rule is that a majority is 50% plus one of those voting, but if an odd number of votes is cast, a majority then is one more than the number of votes cast on the opposing side. Thus, 51 is a majority if either 100 votes or 101 votes are cast. Finally, in regard to a majority, a majority is a percentage of those voting, not a percentage of those present and able to vote at the time the vote was taken. An example is, if there are 200 qualified voters in the town hall but only 100 actually cast votes, 51 of those votes must be on the prevailing side. The fact that 100 of those present did not vote means nothing unless a special legislative act requires that there be an absolute majority of the persons present, in which case the abstaining votes are the same as negative votes. No general statute requires town meetings to act by absolute majority of voters present. A person in town meeting has a right to abstain from voting if he desires, and the abstention cannot be considered a negative vote unless a special statute provides for it; neither can the person be questioned or required to vote.

Elections of town officials in towns of less than 4000 population must be by majority vote. In large towns, election of town officials must be by plurality. (30-A MRSA § 2526.) All elections using the statutory secret ballot shall be determined by plurality vote regardless of the town's population. (30-A MRSA § 2528.)

C. Town Meeting Outline

1. TOWN CLERK
   
   • The town clerk calls the meeting to order at the appointed time.
     
   • The town clerk reads the call and the constable's return. The call is the first portion of the town meeting warrant that starts "In the name of the state of Maine....." No more of the warrant needs to be read unless the town meeting desires to have it read. There is no requirement that the town clerk read the warrant in its entirety and to do so is not only unnecessary but extremely boring.
     
   • The town clerk presides over the moderator's election, receives and counts the votes.
     
   • The town clerk swears in the moderator, and turns the gavel over to him or her.
     

2. MODERATOR
   
   • The moderator reads the article in full.
   • The moderator secures an affirmative motion and a second relating to the article.
   • The moderator recognizes sponsors or special interests for background or other information relating to that particular article. Suggestion: mark the warrant with sponsors' names before the meeting starts!
   • The moderator opens general discussion from the floor. Moderators during the discussion of the article are well advised to require that if any person has a question it must be directed to the moderator who then passes it on to the sponsor or somebody who is capable of giving the information. This has a twofold advantage: First, when the moderator repeats the question, every person has an opportunity to hear and understand what the question is, and second, if the question could lead to some sort of altercation, the moderator can easily control it by requiring the questions and answers to pass back through him or her. If the rule is not strictly followed, it is quite easy to have several discussions going on in various parts of the hall and the situation becomes quite confusing.
   • After the discussion has been finished, the moderator should restate the original motion and call for the vote. If amendments have been proposed to the main motion, the amendments are voted on first and then the motion as amended is voted on.
   • The moderator should clearly announce the outcome of the vote so that the meeting knows what happened and the clerk has an opportunity to record the action. If the outcome of the vote is challenged, this is the time to do it and to take care of the challenge procedure.
     

3. WARRANT ARTICLES
   

   Certain articles may be found in a town warrant upon which action by the town meeting is of no particular relevance. The first of these is to act upon the report of the town officers. It is just as well that this article be left out because a vote to turn down the report of the town officers has no effect as state law requires that a report be made and a town meeting has no jurisdiction over it. The article usually found at the end of the warrant: "To act on any other business...." is one that should be left out because the only business that can legally be transacted under this article is the motion to adjourn. If this article is left in the warrant, quite often the town attempts to do business under it and any such action is null and void. Articles that relate to tax abatements or tax exemptions to specific persons or organizations or things of this nature are not the province of the town meeting. As a matter of fact, articles of this nature are ultra vires, which means that the town has no power to act on them, and whatever is voted is a complete nullity. Finally, a town will occasionally find itself confronted by an illegal article. If the town acts on these articles, the action is without legal effect. Generally illegal articles fall into the category of those improperly drawn or actions requested that the town meeting cannot grant at the particular time. The difference between illegal articles and ultra vires articles is that an illegal article may be legal at another time or be redrafted so that is does become legal, while an ultra vires article requests an action that is beyond the power of the town to do and never can be legal.
   

4. CUSTOMARY USAGES
   

   A word should be said here in relation to the historic Maine town meeting motion "to pass over". In spite of its hundred years or more of use, this motion creates more confusion and misunderstanding in Maine town meetings than almost any other motion that can be thought of. Moderators are well advised to require this motion, if presented, to be reworked into an affirmative motion so that persons will know what they are doing when they vote on the question.

D. Types of Votes

1. VOICE VOTE
   

   This vote is the yeas and the nays and is the lowest of all in order of precedence.

2. SHOW OF HANDS
   

   When a voice vote is questioned and the matter is not sufficiently demanding so that a vote of greater precedence is demanded, the moderator may call for a show of hands on the affirmative and then the negative. This vote will save a considerable amount of time over other types and still return the desired verdict.

3. STANDING VOTE
   

   If the show of hands is for some reason indecisive, the moderator may then call for a standing vote. In this type of vote the proponents stand first and are counted by the moderator or by tellers that he or she would appoint and then the opponents stand and are likewise counted.

4. DIVISION OF THE HOUSE
   

   Of the first four types of votes, this one is the most decisive. Under this method of voting the persons who vote in the affirmative move to the moderator's right and those who vote in the negative move to the moderator's left simultaneously. The moderator then appoints tellers who count the number of persons on each side and return the count orally to the moderator. The moderator announces the outcome and then the persons return to their seats. This method of voting is by far the quickest and most effective that can be used by the town meeting when the secrecy of the ballot is not an issue. If the secrecy of the ballot is a matter of issue, then all other forms of voting should be ignored and a ballot should be taken.

5. WRITTEN BALLOT
   

   This type of balloting is done in open town meeting where tellers pass out slips of paper that are written on by the voter indicating his decision. A sufficient number of ballots are prepared by the town clerk prior to the election. Ballots must be of uniform size and color and shall be blank, except that 2 squares with "yes" by one and "no" by the other may be printed on them. (30-A MRSA $#167; 2524). No other ballots may be counted. The moderator is required to assure that each voter receives only one ballot for each vote taken. The moderator or deputy moderator should stand where the voter can be observed as he casts his ballot and call out the name so that the clerk or a ballot clerk appointed by the moderator can check the name off the checklist. This is a slow process and should be used only by the moderator when required by the town meeting or when secrecy of the ballot is important. The moderator supervises the election clerk in counting the ballots and announces the outcome at the end in the same manner as any other type of vote.

   The "written ballot" should not be confused with the preprinted statutory "Secret Ballot." For those towns that have adopted the secret or Australian ballot method, the relevant statutes are 30-A MRSA §§ 2528-2532.

E. Separating Voters from Nonvoters

In some town meetings it is desirable to use some device to separate the voters from the nonvoters so that the town meeting process is orderly. Most communities that do this put a barrier through the seating area so that the front part of the area is reserved for voters and the back part for the spectators. Generally, the voting area can only be reached through the center aisle and the moderator has a couple of constables or other designated persons there to keep the nonvoters from entering the area. In the event that a person challenges the restrictions, the moderator should make a ruling based on the checklist as to the individual's eligibility to vote. The registrar of voters can generally settle any issue that would arise under these circumstances. Nonvoters may address remarks to the town meeting only if the town meeting permits it by a vote of 2/3 of the voters present.

F. Priority of Motions

Priority of motions is a matter of precedence; in other words, what motions may and may not be made when other questions are before the meeting.

1. MAIN MOTION
   This is the lowest order of precedence and may not be made when any other question is before the house. It yields to all other motions.

2. AMENDMENT
   

   This is technically a subsidiary motion and must be disposed of before the main motion is taken up for voting purposes.

3. POSTPONED TO TIME CERTAIN
   

   This motion refers to the subject matter under discussion and not the town meeting itself. It takes precedence over either the main motion or amendment and has the effect of delaying action for a period of time.

4. PREVIOUS QUESTION
   

   This is a subsidiary question that has the effect of muting debate. When this motion is made it must be voted upon immediately, and it is not subject to debate.

5. RECESS
   

   This is a privileged motion that is always in order even when another subject is before the house. If this motion interrupts an item of business, it must be acted upon immediately. On the other hand, if it is to grant time for meals or for counting ballots or for some other purpose, it is just like any other main motion and is debatable under these circumstances.

6. MOTION TO ADJOURN
   

   The motion to adjourn is always a privileged motion except when its effect is to permanently dissolve the meeting. Thus, if the motion to adjourn is made before the business of this town meeting has all been transacted and no provision is made for meeting at a later time to finish the business, then this motion loses its priority and becomes debatable. If provision is made to meet at a later time to finish the town meeting business, then the motion retains its privilege and is not debatable and must be voted upon immediately. To prevent the misuse of either one of these motions, the moderator should clearly explain to the voters what the effect of the vote on the motion would be. If the motion to adjourn is made at the end of the transaction of business, it retains its privilege and in its sine die form is not debatable, it is not amendable, and obviously cannot be reconsidered.

G. Public Meetings

Many times it becomes difficult for the moderator or chairperson to control a meeting. When such situations arise and there appears to be no rule in this manual or any other parliamentary procedure manual to cover the situation, the moderator should not lose sight of the fact that there is no substitute in parliamentary procedure for the use of good common sense. A rule or order made by a moderator under this rule will stand far more tests than rules of order set forth in most of our procedural manuals.

When using the chart at the front of this manual, the moderator should bear in mind that most parliamentary procedure manuals contain all kinds of limitations on the use of various motions under varying conditions and these apply to each motion set out in the chart. however, the chart shows the generally accepted use and conditions that apply to the motion. An example of this is the column marked "debatable" where the "No" indicates that certain motions are not debatable. In each one of these there are technical situations where the particular motion is debatable under unusual circumstances. These circumstances are generally so remote and so technical that consideration of them by the town meeting does nothing but add confusion.