Power of legislature to make allocations for any designated governmental purpose

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) G. STE"\fEl< ROV/E ATTORNE'i GENERAL ~-'' ·,. --.- -'-;'."T:" •:· 0 l~:?· ~' 19 Telephone: [207] 626-8800 TDD: [207) 626-8865 STATE OF MAINE OFFICE OF THE A TI0R.c"-TEY GENER."1.1.. 6 STATE HOUSE STATION AUGUSTA, MAINE 04333-0006 Ivfay 20, 2003 Senator Christopher Hall, Senate Chair Maine State Senate 3 State House Station Augusta, ME 04333-0003 Representative Lawrence Bliss, House Chair Maine House of Representatives 2 State House Station Augusta, ME 04333-0003 Dear Senator Hall and Representative Bliss: 03-2 8-+ HARLOW SJ .. 2ND FLOOi-C BANGOf~. iVlAIN~ 0--f.40 l TE:L: (207i 94 i -3070 FA::: (207) 94 i-3075 4-i OA;: STREET, 4TH FLoor, PoRTLANI::. MAINE 04101-301,; TEL: (207) &22-0260 FAx: (207) 822-0259 TDD: (877j 428-8800 128 SWEDEt; S, .. STE. 2 CARIBOU. MAINS 04736 TEL: (207) 496-3792 FAX: (207)496-3291 I am writing in response to your letter ofMarch 21, 2003. Although this office has provided a verbal response, I would like to put that response in writing. Your inquiry follows from the opinion I issued on February 3, 2003, advising that "[ u ]nless funds are held in trust or are specifically protected by the express terms of the Maine Constitution, the Legislature has discretion in making allocations for any designated governmental purpose, including allocation to the general fund." You now ask whether the Legislature can establish a trust sufficient to protect from reallocation to the General Fund dedicated revenue funds such as the telecommunications education access fund established under 3 5-AM.R.S.A. §7104-B. We have found no legal precedents on this issue. However, for the reasons that follow, it is my conclusion that where the Legislature has exercised its authority to raise funds, even if those funds are dedicated to a speci£.ed purpose, its authority to redirect those funds would survive any trust that it could create. The telecommunications education access fund results from a legislative allocation of certai.11 assessments imposed on telecorrmmnications providers. A.s noted in your initial letter, other assessments on various utilities are used for purposes such as conservation and support of the Public Advocate. Similarly, a host of other dedicated revenue funds are raised, pursuant to assessments or fees imposed by the State. The resulting funds are public monies, raised by authority of government to be used for public purposes as determined by the Legislature. In administering such funds, agencies are bound by the terms of any governing statutes, but the Legislature is legally constrained 1 only by the terms of the Constitution or the terms of a privately or other non-legislatively established trust from which monies or other property have been given to the State for certain trust purposes. 1 This opinion speaks only to the legal issues raised by your question. ?rimed on Rt.:cycle.d P:1per Senarnr Christopher Hall, Senate Chair Representative La,wence Bliss, House Chair May 20, 2003 Page 2 Vilhile public funds and charitable funds may share some characteristics, they are fundamentally different. Charitable funds are private monies that have been given by a person to be used for an identified purpose that benefits some segment of the public. Public funds, on the other hand, are monies raised by government in one or more ways- through taxation, imposition of assessments or fees, issuance of bonds-that must constitutionally be used for public purposes. Even if the Legislature chose to establish a trust to hold public monies for some specified purpose, establishing such a trust to be irrevocable would amount to the surrender oflegislative power. The Constitution does not permit this. At most, the Legislature could be characterized as a trust grantor or settlor that can change its mind about the appropriate use of funds under its control. Accordingly, the Legislature cannot establish a public funds trust sufficient to prohibit reallocation of funds by subsequent legislative action. I hope this information is helpful. GSR/dp Sinf/ly G. STEVEN ROWE Attorney General