STATE OF
MAINE
DEPARTMENT OF THE ATTORNEY GENERAL
AUGUSTA, MAINE 04333
This publication is presented for "Classroom Use Only." Its intended use is to stimulate and aid in discussion and role playing within a classroom setting.
March 14, 1978
House of Representatives
State House
Augusta, Maine 04333
Dear Representative:
I am responding to your request for an opinion of this office on the following question:
"May a member of the Maine Legislature also serve as selectman of his municipality if the selectman also performs the duties of tax assessor?"
The answer to your question is negative.
I am enclosing copies of previous opinions of this office which have consistently held that although the positions of legislator and selectman are compatible, the positions of legislator and tax assessor are not. I have reviewed these opinions to see if there are any more current statutes or case law which would require a change in our position. I must report that there does not appear to be any reason for a change and reaffirm our previous opinions.
Sincerely,
Assistant Attorney General
March 19, 1970
Dear Representative:
I would understand the question, as posed in your letter of March 13, 1970, to be: May a member of the State Legislature also serve, without conflict, in the position of municipal selectman, assessor and overseer of the poor?
The relevant law may be found in Article IV, Section 11 of the Maine State Constitution wherein it states: "No member of Congress, nor person holding any office under the United States (post office excepted) nor office of profit under this State, justices of the peace, notaries public, coroners and officers of the militia excepted, shall have a seat in either House during his being such member of Congress, or his continuing in such office."
I am unable to discover any interpretation of this, or similar laws of the other states, which would have the effect of construing the position either of municipal selectman or overseer of the poor as ''an office of profit under this state."
However, a past opinion of the Attorney General and a variety of judicial opinions point to the conclusion that a municipal assessor is not a purely municipal office but rather one where the officer is charged with a number of duties under state law for which he is entitled to compensation and must therefore come within the definition of "an office of profit under this state."
I have enclosed a copy of the opinion mentioned above [not enclosed]. You might wish to survey a few of the relevant cases: Town of Frankfort v. Waldo Lumber Co., 128 Me. 1, 145 A. 241 (1929); Dollof v. Town of Gardiner, 148 Me. 176, 182, 91 A. 320 (1952); Talbot v. Wesley, 116 Me. 208, 211, 100 A. 937 (1917); and Rossire v. City of Boston, 86 Mass. 57, 58 (1862).
It would therefore appear to be incompatible for a member of the State Legislature to hold any position which might include among its conditions the duties of a municipal assessor.
Respectfully yours,
Assistant Attorney General
December 17, 1948
Dear Sir:
I have your letter of the 7th, asking if it is possible for a State Representative to run for a municipal office such as that of selectman.
In reply I will say that Section11 of Article IV of the Constitution of Maine provides that no person holding any office under the United States or under this State, justices of the peace, notaries public and officers of the militia excepted, shall have a seat in either house of our legislature so long as he continues in such office.
The office of selectman is not a State office and is not incompatible. However, our court has held that a municipal assessor is a State officer, and a member of the legislature cannot be a member of the board of assessors at the same time.
Trusting that this gives you the information you desire.
Very truly yours,
Attorney General
February 1, 1971
House of Representatives
State House
Augusta, Maine
Re: Incompatibility/Selectman, Assessor
Dear Sir:
At your request, we have again reviewed our previous opinions directed towards the question of whether or not a member of the State Legislature may also serve, without conflict, in the position of municipal selectman and assessor.
It appears that we have previously ruled (March 6, 1923; February 20, 1926; March 3, 1932 and May 6, 1936) that the office of selectman is not incompatible with service as a member of the State Legislature.
We have previously ruled, however, that the office of municipal assessor and a member of the Legislature are incompatible (December 17, 1948, and March 19, 1970).
The basis of our several opinions was the language of the Constitution of Maine, Article IV, Part Third, Section 11, which states:
"'No member of Congress, nor person holding any office under the United States (post offices excepted) nor office of profit under this State, justices of the peace, notaries public, coroners and officers of the militia excepted, shall have a seat in either House during his being such member of Congress, or his continuing in such office."
The office of selectman is not a state office and is not incompatible. However, a past opinion of this office and a number of judicial opinions point to the conclusion that a municipal assessor is not a purely municipal office but one where the officer is charged with a number of duties under the state law for which he is entitled to compensation and therefore must come within the definition of an office of profit under this state.
We would therefore adhere to our previous positions that it would appear to be incompatible for a member of the state Legislature to hold any position which might include among its conditions the duties of municipal assessor.
Sincerely yours,
Deputy Attorney General