Conflict of interest of selectman of a town serving as an officer in the Army Corps of Engineers or as a part-time deputy sheriff

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) RICHARD S. COHEN ATTORNEY GENERAL S·rATE at' MAINE Di!:l'A1t'1'M~N'l' 01•' 'l'H~ A'lvl'OU.N~Y G~N~H.AL AUGUSTA, MAINE 04333 June 14, 1979 Honorable James A. McBreairty Senate Chambers State House Augusta, Maine 04333 Dear Senator McBreairty: 71-/2.3 STJ.iPH.EN L. l)IAMONU JOHN S. GLEASON JOHN M. R. PATERSON ROBERT J. STOLT DEPUTY ATTORNEYS GENERAL Subsequent to our opinion to you on March 26, you have asked two additional questions. First, you have asked whether a selectman in the Town of Allagash who is an officer in the Army Corps of Engineers, the agency responsible. for,construction of the proposed Dickey- Lincoln Dam, has a conflict of interest by virtue of holding those positions. The mere fact that the selectman holds a posi- tion in the Army is not per sea conflict of interest. The existence of a conflict wouldarise only in the context of particular issues or contemplated acts and cannot be answered except in the context of a specific fact situation. The mere holding of these positions does not in itself create a conflict. Should a conflict arise, however, it could be avoided by the individual disqualifying himself from performing one of his duties. · Second, you have asked whether a. selectman may also serve as part-time deputy sheriff. We have reviewed our files and find that previous opinions of the Attorney General have expressed conflicting view .on this question. By an opinion dated March 5, 1937, this office stated that it was an incompatibility for an assessor to be a deputy sheriff. On February 9, 1955, the office stated that it was not incompatible for a selectman to be a deputy sheriff unless the selectman was also 1.a local assessor. On March 11, 1966, the Attorney General issued an opinion stating that the positions of selectman and deputy sheriff were not incompatible. Unfortunately, none of these earlier opinions provides any reasoning, each of them·being conclusory in nature. Page 2 The earlier opinions of the Attorney General were based on an interpretation of·the common-law concept of incompatibility as set forth in Howard v. Harrington, 114 Me. 446 (1916). Subsequently, new statutory provisions have been enacted which relate in part to this question. Title 30 M.R.S.A. § 951 prohibits a full-time deputy from holding a position as a municipal officer. No similar prohibition·exists, however, regarding part-time deputies. While Title 30 M.R.S.A. § 959(2) authorizes participation by all deputies in "elections" and permits them to run for local office, it is silent on the question of whether a part-time deputy may serve simultaneously as a municipal official. Given the absence of a statutory provision on the subject, we must apply the principles of comrnon·1aw incompatibility as stated in ·Howard·v. Harrington, supra. That case holds generally that no person can occupy two·offices with inconsistent functions which preclude the person from being able to discharge the duties of each office. Although Howard gives no precise formula for deter- mining inconsistency., we do not believe it is incompatible for a part-time deputy to be a selectman. The function of a deputy is to enforce the law. The function of a selectman is to conduct local municipal business and, where authorized, enact J,ocal ordinances. Ordinarily a selectman has little, if any, authority to adopt a mun•icipal ordinance, that function being·reserved to the.entire town meeting. Assuming that the deputy may be called onto enforce an ordinance, that does not create any inconsistency. ·In Bamford v. Melvin, 7 Mo. 5 (1830) and Stubbs v. Lee,.64 Me. 195 (1874), the Law Court held that it would be incompatible for a deputy to be a justice of the peace or trial justice, since in each case the individual as a judicial officer would be exercising a power clearly in conflict with his law enforcement.duties. ·However, we do not perceive the same problem arising out of the possibility that, on limited occasions, a deputy sheriff might be called upon to enforce an ordinance which he voted to adopt in his capacity as a selectman. For that reason, we do not deem the offices to be incompatible. Having answered the comrnon..-law incompatibility issue, the question arises as to·. whether the positions of deputy sheriff and selectman· are · consti.tutionally compatible. Article III, § 2 of the Maine Constitution provides that "no person or persons belonging to either of these departments [legislative, executive or judicial.] shall exercise any .of the powers belonging to either of the others, except in cases ·herein expressly directed or per- mitted." It has long·been the rule in Maine that a sheriff or deputy is a member·of "the executive branch. 'Bamford v. Melvin and Stubbs v. Lee, supra. Although the sheriff is a constitutionally created officer,· Me. ;Const. Art. IX, § 10, the inclusion of the sheriff in the executive branch stems from the office's principal function of law enforcement. r Page 3 Given this fact, the question then narrows to a determination of whether a selectman is an officer in a different branch of government, i.e., the legislative branch. In an analogous case the Maine Law Court intimated that a mayor may be a member of the executive branch of state government, despite the fact that he was elected locally, since the mayor's functions involve duties affect- ing the general·public which are create~·by and delegated to him under state law. Howard v. Harrington, supra. It may logically follow, therefore, that a selectman, insofar as he is delegated certain legislative functions by municipal charter, may likewise be a member of the legislative·branch. However, we think there are persuasive grounds to conclude that a municipal selectman or city councillor is not in fact a member of the state legislative branch. Apart from.the now rather dated dicta •in Howard v. Harrington, we know.of no Maine case stating or implying that a locally elected official is part of the state legislative branch of government in the sense that it is referred·to in Art. III, §§ lor 2 of the Maine Constitution. While the case law recognizes a distinction between state and local offices, the line between them is not clearly defined. See generally the discussion in McQuillen, Municipal Corporations,§ 4.115 (3d ed. 1973) and Dillon, Municipal Corporations, § 97 (5th ed., 1911). Generally, however~ the distinction appoars to rest on whether the official is charged with duties affecting the state at large or responsibilities essentially local in character. Viewed from this perspective, we would characterize a town select- man as a local official. In addition, we think it unlikely that the reference to the legislative branch in the Constitution was intended to encompass local officials like a selectman. While it· is possible that a selectman is a state official in the sense that the position is created and the powers prescribed by statute, it nevertheless seems unlikely that the reference to the legislative branch in Art. III, § l, of the Maine Constitution was intended to encompass local elected officials. Rather, it is far more probable that for constitutional purposes the reference to the legislative branch in Art. III, § 1 was intended ·to refer back to the Legislature, as def·ined and created in Art. IV of the Maine Constitution. For that reason, we conclude that there is no constitutional . incompatibility with a part-time deputy sheriff serving as a local municipal official since the selectman is not in a separate consti- tutional branch of government. I trust this answers your questions. If I can be of further assistance, please let me know. fl..in{eye,Q_ d~Ta;:._..·;, JMRP/ec JOHN M. R. PATERSON Deputy Attorney General