JAY — Selectpersons voted 2-3 Monday not to abide by a legal opinion that would require the board to remove a Jay Village Water District trustee who does not live in the district.

Selectpersons Tim DeMillo, Tom Goding and Vice Chairman Justin Merrill opposed the vote while Chairman Steve McCourt and Selectperson Pearl Cook voted in favor.

Selectmen appointed resident Jerry Hutchinson in June to serve as a trustee to fill a vacancy until June 2014, when an election is held to vote for a new trustee. Hutchinson does not live within the Water District’s geographical boundaries, according to Town Manager Ruth Cushman. He is also not a customer of the district.

The 100th Maine State Legislature approved An Act to Incorporate the Jay Village Water District in February 1961 under the Private and Special Laws of the State of Maine, according to a document from the Law and Legislative Digital Library. It can be found online at http://lldc.mainelegislature.org/Open/Laws/1961/1961_PS_c036.pdf.

Only the voters who live in the district may vote to elect a trustee to the three-member board. In case of the resignation, removal of his/her principal place of residence from the district, or inability of a trustee to serve, selectmen shall declare a vacancy and immediately select someone to serve until the next annual meeting of the district.

The town received a legal opinion in 2003 on who can serve as a trustee and asked again for the legal opinion recently in reference to the board appointing an out-of-district trustee to fill a vacancy.

William W. Livengood, director of the Maine Municipal Association Legal Services Department, wrote in an email that he had reviewed the Private and Special Laws of the state from 1961 and the act that incorporated the Jay Village Water District.

“As I noted in our telephone conversation in March 2003, it is my opinion that it establishes an implied requirement that district trustees reside in the district,” Livengood wrote.

Merrill said Monday night that the act does not expressly say that a trustee has to live in the water district.

Cushman said it does. It is implied, she said.

There are two people on the Board of Trustees that are residents of the water district and one that is not, Merrill said.

The North Jay Water District has the same makeup of trustees. Two living in the district and one not. Cushman said she talked to state Rep. Paul Gilbert, D-Jay, about the issue and he said he would not vote to change it.

“He thinks the people who live within the district would have a vested interest” she said.

One of the reasons the board is having this discussion, DeMillo said is that there was not a line of people wanting to take the position.

Cook asked if the board is bound by the legal opinion.

Cushman said it is her job to guide the board to obey the law.

The charter was passed by the Legislature, she said.

“I understand there is no line but if you put an ad in the papers, you don’t know what you will get, she said.

“We only appointed the person to fill the position until June 2014,” Merrill said.

When June comes, he said, the appointed trustee would not be able to be to run for the position.

The board put him in the position because no one else wanted it, he said.

No water customer has complained to the other trustees about the appointment, Merrill said.

Police Chief Larry White Sr. said he was concerned as a taxpayer of the consequences if the board ignores the act approved by the Legislature and lawyer’s opinion on the act.

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