Massachusetts law deals with the next steps when there is a vacancy in a town officer position, such as on the Select Board. Although Reading’s board is now referred to as the Select Board, our town charter at section 3.2 states that, “The Board of Selectmen shall have all of the powers and duties granted to Boards of Selectmen by the Constitution and General Laws of the Commonwealth of Massachusetts.” Thus, Massachusetts laws in place that refer to duties of Boards of Selectmen, are applicable in Reading.
Massachusetts General Laws (MGL) chapter 41 is the section dealing with regulations for “Officers and Employees of Cities, Towns, and Districts”. Section 10 of this chapter (see link here: https://malegislature.gov/Laws/GeneralLaws/PartI/TitleVII/Chapter41/Section10 ) appears to be the law that governs filling in a vacancy of a town officer when that officer is one of the “selectmen”.
As indicated in the cited passage below, if a vacancy occurs in the office of selectmen, the remaining selectmen (i.e., Select Board members) “ may” call for a special election. They may also leave the opening vacant. The statute does not appear to require the remaining members to call for a special election, though they are free to do so. The only time remaining members are required to hold a special election, when a select board position becomes vacant via resignation, is when there is a request in writing filed by 200 voters or 20% of registered voters, whichever is the lesser.
MGL Ch. 40 §10 states (emphasis added in bold and underline) :
Section 10: Failure to elect; procedure to fill vacancy; notice
Section 10. If there is a failure at an election to choose a town officer, except a selectman, or if a person chosen shall not accept such office, or if a vacancy shall occur, the town may at any meeting elect a person to such office.
If, at an election of town officers for which official ballots are used, there is a failure to elect a town officer, he may be elected at an adjourned or succeeding meeting; and ballots shall be prepared and furnished for such meeting, containing the nominations already made and such as may subsequently be made for the office.
The proceedings in such election and the qualifications of a person to be elected or appointed in case of failure to elect, refusal to accept or vacancy shall be the same as in an original election.
If there is a failure to elect or a vacancy occurs in the office of selectman, the remaining selectmen or selectman may call a special election to fill the vacancy and shall call such election upon the request in writing of two hundred registered voters of the town, or twenty per cent of the total number of registered voters of the town, whichever number is the lesser; provided, that such request is filed with them or him not less than one hundred days prior to the date of the next annual election.
If there is a resignation of a town officer creating a vacancy at some later time certain, and such resignation is filed with the town clerk in accordance with the provisions of section one hundred and nine, said town clerk shall certify a vacancy shall occur at the later time certain and the board of selectmen may call a special election as provided in this section; provided, however, that no such election may be held prior to the effective date of the resignation creating such vacancy.
No election shall be held for any office pursuant to this section unless the selectmen file with the town clerk notice of an election for such office not less than fifteen days before the last day to submit nomination papers to the registrars of voters for certification, before the election or any preceding primary, caucus, or preliminary election.
It is expected that Town Counsel will advise our Select Board on the next steps to deal with the vacancy on their board. It is possible Town Counsel may find other options within our charter and under Massachusetts state laws, so this article should not be construed as legal advice.
Should our Select Board decide that they want to hold a special election to fill this vacancy, our town clerk also may have further information on timing and logistics of such a special election. With town meeting coming up at the end of April and into the start of May, it seems possible that a special election may not be able to be held until after town meeting – assuming there are one or more candidates willing to run in such an election.
