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DEPARTMENT OF THE ATTORNEY GENERAL
AUGUSTA, MAINE 04333

February 8, 1980

House of Representatives
State House
Augusta, Maine 04333

Dear Representative:

You have requested an opinion of this office in regard to the question of whether an employee of a town may run for selectman of that town, and, if elected, may serve as a selectman while remaining an employee of the town. We answer the first question, whether he may run, affirmatively, subject to review of local provisions; but we answer the second, whether he may serve simultaneously as an employee of the town and as a selectman, in the negative.

For purposes of analysis, we will consider the questions presented in reverse order. Having found no constitutional incompatibility between the office of employee of a town and a town official, such as a selectman,* the question becomes whether there is any common law incompatibility between these two positions. We find that there is. In our opinions, we have taken the position that a person may not simultaneously serve as a selectman and an employee who would be controlled by the selectman. See, e.g., Opinions of the Attorney General, January 22, 1980; February 5, 1974 (copies of which are attached hereto)[not attached]. The rationale of these opinions is that incompatibility arises when the holder of two positions cannot discharge the duties of each. See Howard v. Harrington, 114 Me. 443 (1916). In the situation of an employee and selectman, it is clear that the selectman would have power over the employee in the areas of hiring, firing, and determining compensation. Hence, we find that these two offices are incompatible.**

What are the consequences of this incompatibility on the ability of the employee to run for selectman? We have found no state law which prevents an employee of a Municipality from running for the office of selectman. There may, however, be existing ordinances of the town which would prohibit employees of the town from involving themselves in political activity and which might specifically prohibit an employee from running for a municipal office. A search of: the ordinances should be made to determine whether such an ordinance exists. Assuming that no ordinance prohibits the employee from running for selectman, however, the incompatibility of the positions would prevent the employee from serving as selectman without vacating his position as a town employee. Hence, should the employee run for selectman and be elected, he should resign his employment by the town. In any event, as a technical matter, his election as selectman will automatically vacate his employment position.

I hope this information addresses your concerns. If you have any further questions, please feel free to contact this office.

Very truly yours,

Assistant Attorney General

* Me. Const., art. III, § 2; art. IX, § 2.

**We take no position with regard to the question of whether 30 M.R.S.A. § 2251, which governs conflicts of interest in contractual situations for municipal officials, applies in an employment situation. While there is some authority that that section would apply and would create a conflict of interest where the selectman was also an employee of the town, see Davis v. Doyle, 323 S.W.2d 202 (Ark. 1959); Revis v. Harris, 243 S.W.2d 747 (Ark. 1951), a determination of this question is not critical to the result reached in this opinion. Furthermore, section 2251 does not per se prevent a selectman from being an employee of the town but merely governs the consequences where a municipal official is pecuniarily interested in contracts of the municipality.