Compatibility of office of someone serving as director of a civil emergency preparedness agency and executive officer or member of executive body of any municipality

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) RIC.:IIAIW S. COIIIJN ATTORNEY GENERAL Leslie B. Higgins Deputy Director S·1·A'r1': 01•' MAIN!,; Dl!:l'Alt'i'Ml!:N'l' 01" '1'11.c: J\'1•ro1tNl!:Y Gl!:Nl!:IUL AUGUS'l'A, MAINE 04333 August 3, 1979 Bureau of Civil Emergency Preparedness State House · Augusta, Maine 04333 Dear Mr. Higgins: S'l'l.il'llliN L. DlAMUNIJ JOHN S. GLEASON JOHN M, R. PATERSON Rou1mT J. STOLT DEPUTY ATTOHNtY:C, GENl.:HAL We wanted to take this opportunity to respond to your written request for a formal legal opinion from this Office regarding the meaning of 37-A M.R.s.A. § 59(2). In pertinent part, the provision· reads as follows A director of any civil emergency preparedness agency shall not be simultaneously an executive officer or member of the executive body of a political subdivision of tho State. Your request seeks an interpretation of this section, and, as we understand it, an opinion on the question of whether this section is in conflict with any statutes providing that, where municipal officers fail to make a given appointment, they arc to serve in the vacant position. · The meaning of this provision seems clear on its face; an appointed director of a civil emergency preparedness agency is not to serve simultaneously as an executive officer or member of the executive body of any county, city, town, village, towm.,hip, district or any other political subdivision of the State, as defined by 37-A M.R.S.A. § 53(4). The problem presented is tho definition of "executive officer" or "member of the executive body." The term "officer" generally means holders of offices which are srecified by statute or constitution, elected or appointed, and whose duties, responsibilities, pay and powers are regulated by statute or constitution. See genera111, 3 E. McQuillan,· Law of Municipal Corporations:; § 12. 273rd ed. 1973). Thus, the characteristics of an "office" are Page 2 statutorily or constitutionally specified tenure or duration, fees or salaries, and powers and duties. 3 E. McQuillan, supra, § 12.29; ~ also Goud v. City of Portland, 96 Me. 125 (1902). The test of whether a person is an officer is often stated in turms of whothor that person is uutb.ori:.wd to oxorc.i.su t.ho powur of the sovereign. 3 E. McQuillan, supra, § 12.30 and cases cited therein. The statute at issue heroin evidences an intent on the part of the Legislature to preclude those persons involved in the day-to-day administration of a political subdivision of the State from serving as local directors of civil emergency preparedness. Given this intent and the principles related above defining what an officer is, it can be concluded that at least the following persons are precluded by this section from serving as local directors of civil emergency prcpuredncss; town manager, solcctmun, county conunit.sionor, city councillor or alderman. Some of these positions are specifically designated as "municipal officers" by 30 M.R.s·.A. § 1901 (7). Further, each of these officers is, by statute, charter or other authority, generally charged with executive und/or udminist:.rutivc duties with regard to a municipality or other governmental body. ~, 30 M.R.S.A. § 2317(1) (A) {town manager is chief executive and administrative official of a municipality). This list is not meant to be exhaustive but merely representative of those persons who can be considered "officers" under the definition discussed above. In rcsponie to the second part of your inquiry, our research of the Maine statutes has failed to locate any i::.lingle or gonoral provision which requires municipal officers to serve in a ~osition to which they have failed to make an appointment or which'the town meeting has failed to elect. 30 M.R.S.A. § 2055, prior to its amendment in 1969, provided that town officials other than town meeting moderator, clerk, selectmen, assessors, overseers of the poor, treasurer and members of the school committee could be elected by ballot, but, where they were not, they were to be appointed by the selectmen. The repeal of this section throws the problem of vacancy of a municipal office back onto the general vacancy sections, 30 M.R.S.A. §§ 2253'and 2060. It i~ ~ 20GO whJ.ah contains the only provision which we have found whereby the sclectmun of a town succeed to an unfilled position. Under§ 2060(4) (B), where overseers of the poor have not been ·elected, the selectmen are to serve in that position; under subsection (7) {B) of that section, the selectmen may, but are not required to, uct as roud commissioners; under subsection (5) (B) of§ 2060, where a full board of assessors is not elected, the selectmen are to appoint the board, and a selectman can serve as an assessor. The position of director of a municipal civil preparedness agency is nowhere specifically mentioned in these vacancy statutes. Further, as discussed above, there is no general provision provid- ing that municipal officers are to serve in any or all vacant town Page 3 positions. It is thus the opinion of this office that, where the selectmen fail to appoint a municipal civil emergency preparedness director, or, where appropriate, the town meeting fails to elect one, the provisions of 30 M.R.S.A. § 2253(1) co100 into plDy, and the office should be filled by appointment by the selectmen. We hope this information addresses the concerns you have expressed. If you have any further questions, please feGl free to contact this office. et;~l~ PAUL F. MACRI Assistant Attorney General PFM/ec