Sometimes, it just takes one tiny word to completely change the meaning of an entire sentence. Such is the case with “may” versus “shall.”
The distinction between "may" and "shall" in ordinances and contracts is significant, particularly for a municipality, as it affects the enforceability, obligations, and discretionary power of the parties involved. A breakdown of the ramifications that the use of either word can have in an ordinance or contract can be significant.
“May” is permissive, indicating that an action is optional or within the discretion of the party involved. It does not create a binding obligation. When used in ordinances, "may" allows the municipality or officials to exercise judgment or choose whether or not to take a particular action. For example, if an ordinance states that the municipality "may issue a permit," it suggests that the issuance is not mandatory and can be denied based on specific criteria. Using "may" in contracts provides flexibility for the parties, allowing them to choose how to proceed with certain provisions. This can be beneficial if the parties want to retain some control over specific actions, but it can also create ambiguity.
In contrast, "shall" is directive, indicating an obligation or requirement. It is typically used to denote a compulsory action that must be taken. In ordinances, "shall" creates a duty or mandate that must be followed. For example, if an ordinance states that the municipality "shall issue a permit," it means that if an applicant meets the criteria, the permit must be granted. In contracts, "shall" removes discretion and imposes a strict requirement. This creates clarity and reduces ambiguity but can also be considered rigid, potentially leading to disputes if one party fails to meet the obligation. Using "shall" in ordinances can lead to legal challenges if the municipality fails to comply with its mandatory obligations. Conversely, using "may" might result in fewer challenges, but it can also lead to inconsistent enforcement or perceived arbitrariness in decision-making.
If a municipality enters into a contract with unclear language, such as "may," where "shall" is intended, it can lead to disputes over the scope of the obligations. Courts often interpret "shall" as mandatory, which can impose strict compliance requirements on the municipality. The choice between "may" and "shall" reflects policy decisions about the level of discretion the municipality wants to exercise. "May" can be appropriate for policies needing flexibility, while "shall" is suited for non-negotiable community standards or legal requirements. Municipalities must carefully choose between "may" and "shall" to balance flexibility and enforceability. For actions that are essential for public welfare or safety, "shall" should be used to ensure compliance. When drafting contracts, municipalities should be clear about their intentions. Using "shall" can prevent misunderstandings but should be limited to obligations the municipality can realistically fulfill.
The differences between “may” and “shall” have real consequences for legal interpretation, enforceability and governance. Choosing the appropriate term based on the desired level of obligation and discretion is crucial to avoid legal complications and ensure effective policy implementation. Remember, seeking good legal advice when creating ordinances and implementing contracts is always a wise decision. So, shall we “fire this thing up” or may we?
About the Author
David L. Anthony is a member of the Keystone Municipal Solutions team of experts. He is a veteran of municipal government, having served more than 33 years in various positions of public service. Contact him at david@keystonemunicipalsolutions.com. To learn more about David and the Keystone Municipal Solutions team, click here.
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