Bingham Water District

MAINE STATE LEGISLATURE The following document is provided by the LAW AND LEGISLATIVE DIGITAL LIBRARY at the Maine State Law and Legislative Reference Library http://legislature.maine.gov/lawlib Reproduced from scanned originals with text recognition applied (searchable text may contain some errors and/or omissions) RICHARDS. COHEN ATTORNEY GENERAL S1'/\TE OF MAINE DEPARTMENT OF THE ATTORNEY GENERAL AUGUSTA, MAINE 04333 W. G. Blodgett Executive Director May 17, 1979 Maine State Retirement System State.Office Building Augusta, Maine 04333 Re: Bingha.m Water District. Dear Mr. Blodgett: 7f-11 STEPHEN L. 01AMONU JOHN S. GLEASON JOHN M. R. PATERSON ROBERT J. STOLT DEPUTY ATTORNEYS GENERAL Your memo of March 21, 1979, raises th.e question of the legality of the action by whi.ch the B.ingham Water District became a participating local district in the Maine State Retirement System. From background material submitted with your request, it appears that the. Bingham Water District.' s parti.cipation was initiat~d bi a vote of its Board of Trustees taken at a meeting of the Board on December 14, 1971. You have asked: Should the action to participate have had the approval of the voters of the town, or were the trustees legally authorized to take the action they did? The Bingham Water District was organized under P. & S. L. 1911, c. 13. In 1971, the then-trustees voted to join the Re,tirement Syst~m as a participating district. The statutory section which provided :the procedure by which local districts could initiate participation was then, as now, 5 M.R.S.A. § 1092(1). At that time, § 1092(1) provided: "l. Participating local di.stricts. The employee:sl/ of any • • . town, water district . may participate in the retirement system, to the full extent of any and all 1/ "Employees" has long been interpreted administratively to include elected officials such as trustees, directors, selectpersons, etc. See 5 M.R.S.A. § 1091(1). Page 2 benefits provided for in this chapter pro- vided •.• the voters of a town at a duly constituted town meeting, or the trustees of a water district ... approve such part- icipation and file with the board of trustees a duly certified copy of the resolution of ... such corresponding body (i.e., the trustees) approving such participation and the extent of the benefits, which shall apply, or a record of the vote of the town voters. • • • " It is clear that § 1092 (.1), as then written, provided one procedure for water districts seeking to participate·. in the Retirement System (by vote of trustees) and another procedure for towns (by vote of the town voters). Here, the entity seeking to participate was denominated "water district." It is clear from the Act by which it was established (. P. & S.L. 1911, c. 13) that the District is 11ot a_ town, nor is it coterminous, geographically or politically,~ with the Town of Bingham, so that it could be said to be in fact the town, though in name and for certain limited purposes a water district. 31 From this, it is apparent that the proper procedure - approval by vote of trustees - was followed, so that the district's participation was ~r/operly instituted under the retirement law as then written._ 4/ The general description given in§ l·of c. 13 is, " ... so much. of the town of Bingham •.•. " More specifically, § 1 · defines the Water Di.strict as consisting of certain d.escrioed territory "and the people within the same." Section 11 of c. 13 conditions the operative effect of the Act on acceptance. by a majority of the legal voters of the town "within said water district." Other references to voters in the Act are to voters within the District. See, e.g., § 6. A 19.57 amendment permitting the water district to extend.its pipelines into "so much of the town of B.ingham as lies outside the aforesaid· territorial limits of said district" does not alter this conclusion. P. & S.L. 1957, c. 45, § 1. (Chapter 13 has been amended on two other occasions in ways not here relevant. P. & S.L. 1913, c. 103; P. & S.L. 1935, c. 62). Even if the District were a water district superimposed on a town, it would appear that si.nce participation was sought as a water district and since the statute specifically provides a procedure for water districts, the procedure followed would have been 'proper. By an Attorney Gene:r.al's opinion of September 9, 1971 (copy attached), th.e Retirement System was advised, in response to its inquiry, that the Bingham Water District was eligible to part- icipate in the Retirement System as' a local district. That opinion was based on the District's having complied with the relevant statute then in force, § 1092(1). Page 3 If there is a question whether the action of the trustees was authorized under c. 13, it would properly be addressed to the water district's counsel by the parties concerned. KRHE/ec Enclosure Very truly yours, KAY R.H. EVANS Assistant Attorney General E. L. Walter, Executive Secret:.ary Charles R. Larouche Assistant:. Retirement' Sy stern: Eli9 ibili ty Attorney General of Bingham WatGr District This replies t.o your hugust. 31, 1971, inemorandurn .i.:'equ01.:,·c on this subject.. It. appears tho:c you have been informed by 'i::.ho }3ing·ham \-.Ya·i::.o!: District that such District was crea'c~d _by· an Act of t.hc Le 1:Jisla'i.:.u:co dated E'ebruary 14, · 191'1, and t.hat. such District is int.eros-;:;.0.d. in .i:)ecoming a :member of 'l:.he Maine state Retircrnent Systern. I understand your quest.ion to be whet.her or not such a Dist.ri,.:·i.:. is eligible to join the 1~1aine st.ate Ret.irernent:. Sy~:rcom. The answer to that question is "yes. 11 chapt:.er 13 0£ the r'rivat.e and Special Laws 0£ 1911, ,1pprovcu February 15, 1911, created the Eingham Water Dist:.ric'i:.. On July 15, 1911, :i ce:::i.:tificate w..::is fiJ.etl in 'i:.he Office o:i: t.1"1e SecJ:et:.ary oz state of Maine reflecting ·i.:.hat the Act hc;1d been c:iccc:pt.ed 'Oy a majority vote. of the legal votet-s within that Dis'ci:ict.. ,)ub- sequently ·the ·Act was amended several times; however, it. appears thut such District. still eJcists. 5 M.R.S.A. § 1092 provides t.hat 11 1I1he ei:uployees of any •••• water dis'i:.ric·c •••• may participa·te in the retirement sys'l~em, to t.h0 full eJ,tent of any and all benefits provided I:01: in this chapter provided the, •••• ,Trus·toc~; of c, water district •••• approve such part.icipution i.:U1d file with the board of t.i::ustees a duly (;C.J:tificd (:Cpy of the resolution ••• approving such pilrticipation and. the e:>ct.en'i.:. of the benefits which shall ~1pply." Accordingly, it appears that. the Bingham w,,·i::.e.r Dist:.::ict i;.;i . eligiple to become a participating district and can ~hus participate if its trustees so ap1:;,rove and file its· resolution with the w:lin<::: State Retirement System board of trustees. CRL/mf Charles r,. Larouche: