( from MMA's Legal Department's Ethics Legal Packet)

This Maine Municipal Association publication is presented for "Classroom Use Only."  Its intended use is to stimulate and aid in discussion and role playing within a classroom setting.

Legal Distinctions

Maine law recognizes four kinds of ethical dilemmas in municipal government: conflict of interest, incompatibility of office, prohibited appointments or employment, and bias (see "State Law and Ethics," Maine Townsman, July 1990); conflict of interest is only one type of ethical dilemma, although the term "conflict of interest" is sometimes used generically (and incorrectly) to refer to all four. A conflict of interest, strictly speaking, exists where an official has a personal pecuniary (financial) interest in a matter of official business. Incompatibility of office is present where two public offices, by virtue of their respective and conflicting duties, cannot be held simultaneously by the same person no matter how dedicated or financially disinterested. Prohibited appointments or employment are paid positions which are barred to the municipal officers (selectmen or councilors) because they either created the positions or increased the positions’ compensation. Bias occurs where an official, due to prejudice or a familial relationship with the applicant, is unable to make a fair and impartial decision in a matter requiring objectivity (i.e., a "quasi-judicial" proceeding). These distinctions are important because the circumstances under which an ethical problem may arise, and the legal consequences that may result if it is ignored or handled improperly, can vary widely depending on which type of problem it is.

Appearances

The basic rationale for regulation of ethics among municipal officials is to foster and preserve public trust in the fundamental integrity of local government. Even where an official’s conduct may not be legally proscribed, personal relationships or competing interests may create an appearance of impropriety sufficient to undermine public confidence in the fairness and honesty of local officials. State law (30-A M.R.S.A. § 2605(6)) therefore encourages officials to avoid the appearance of a conflict of interest by disclosure or by abstention in such cases.

Local Ethics Policies

State law (30-A M.R.S.A. § 2605(7)) authorizes the municipal officers to adopt an ethics policy governing local officials. Some municipalities have found this to be an effective method for dealing with ethical dilemmas left unresolved by other law. (For a good example, see the City of Bangor’s "Code of Ethics,".)

Ultimately, of course, only a court can determine whether an official has violated an ethical restriction and, if so, what penalties or consequences may follow. However, the numerous statutes and cases can serve as a guide to local officials in resolving their own specific ethical dilemmas. In addition, certain moral principles may apply (see "Ethics: More that Just a Set of Rules," Maine Townsman, July 1990). In the absence of local charter, ordinance or bylaw provisions to the contrary, it is generally recognized that a majority of a board (not including the member whose participation is in question) may determine whether a member has a disqualifying ethical problem.