Could a Maine state contractor's executive director run for the Legislature without a conflict of interest?

Plain-English summary

Maine's House Speaker asked whether the executive director of an organization contracting with the state's social services bureau would face a conflict of interest by being elected to the Legislature. The Attorney General answered that the contract alone did not prevent the person from running or holding a seat.

The opinion treated a person providing services under a state contract as an independent contractor rather than a state employee or public officer. On that basis, constitutional separation of powers and incompatible-office rules did not apply. The AG found no statute that barred election or service merely because the person or an associated entity provided contract services to the state. It distinguished 17 M.R.S.A. § 3104, which concerned a state official's financial interest in a state contract, from a private citizen seeking office.

Election did change the analysis. Once the contractor became a legislator, the person came under the governmental ethics provisions in 1 M.R.S.A. § 1011 and following sections. The opinion singled out § 1014(3)(A), which presumed a conflict when a legislator with a direct financial interest or close economic association had an interest in a state contract transaction outside public notice and competitive bidding or uniform-rate arrangements. The opinion did not decide whether a particular later transaction would violate that provision.

Currency note

This opinion was issued in 1986. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did a state contract automatically disqualify this person from a Maine legislative seat? A: No. The AG found no automatic bar based solely on the director's or organization's contractual work for a state agency.

Q: Why did the AG reject an incompatible-offices objection? A: It treated the service provider as an independent contractor, not a state employee or public official holding another governmental office.

Q: Did election make the ongoing state contract irrelevant? A: No. The AG said a legislator was subject to the governmental ethics law and identified § 1014(3)(A) as especially relevant to financial interests in some state contracts.

Background and statutory framework

The 1986 opinion separated eligibility to seek or hold a legislative office from the conduct of a legislator after election. It found no constitutional or common-law incompatible-office obstacle for an independent state contractor, and no statute categorically barring the candidate. The cited ethics provision instead addressed a legislator's financial interest in a contract transaction under specified conditions. The opinion did not resolve a completed transaction or give a blanket approval for later votes or contracts.

Citations and references

• 17 M.R.S.A. § 3104 (state official's contract interest)
• 5 M.R.S.A. § 1816 (competitive bidding statute discussed)
• 1 M.R.S.A. § 1014(3)(A) (legislative ethics provision discussed)

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/1986/ag_19860505.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

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JAMES E. TIERNEY
ATTORNEY GENERAL

STATE OF MAINE
DEPARTME:"iT Of THE ATTORNEY GE:"\ERAL
STATE HOUSE STATIO.'\ 6
ALGL'STA, MAl'\E 04333

May 5, 1986

Honorable John L. Martin
Speaker, Maine House of Representatives
State House Station #2
Augusta, Maine 04333
Dear Speaker Martin:
This will respond to your request for an opinion from this office regarding whether the Executive Director of a provider of services pursuant to a contract with the Bureau of Social Services of the Department of Human Services would be involved in a conflict of interest should he be elected to the Maine Legislature. It is the understanding of this office that your question has been prompted as a result of a Memorandum of Counsel from a member of this office to the Director of the Bureau of Social Services, suggesting that a conflict of interest might exist in the circumstances described above. For the reasons discussed below, it is the Opinion of this Department that the mere fact that a person provides contractual services to an agency of the State does not preclude him, on conflict of interest grounds, from either running for or holding a seat in the Maine Legislature.
Since a person providing contractual services to an agency of the State is performing as an independent contractor, and not as a state employee or other public official, the constitutional provisions pertaining to separation of powers (Me.Const. Art. III, §§ 1 and 2) and incompatibility of offices (Me.Const. Art. IV, pt. 3, § 11; Me.Const. Art. IX, § 2) do not apply. Similarly, common law principles of incompatibility of offices do not have application. Moreover, in this Department's view, common law principles of conflict of interest do not apply with respect to the legislative branch of

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government. Accordingly, in order for a conflict of interest to exist in connection with the situation described above, it is necessary that it be premised upon a specific statute.
This Department's research has not revealed the existence of any statute which prohibits an individual from either being elected to or holding a seat in the State Legislature simply because he, or an entity with which he is associated, provides contractual services to the State. 17 M.R.S.A. § 3104 prohibits a state official from having a pecuniary interest in a contract with the State, but that statute does not apply to a private citizen doing business with the State,. who seeks election to the Legislature. Moreover, nothing in the Governor's Executive Order (9 FY 83/84) or the competitive bidding statutes (5 M.R.S.A. § 1816) applies to this situation.
Of course, once a person becomes a member of the Legislature, he is subject to the provisions on governmental ethics established by the Legislature in 1 M.R.S.A. § 1011, et ~ - One provision of the governmental ethics law would appear to have particular relevance to the situation described herein. 1 M.R.S.A. § 1014(3)(A) provides that it is presumed that a conflict of interest exists "where a Legislator abuses his office or position, including but not limited to the following cases." A. Where a Legislator or a member of his immediate family has a direct financial interest or an interest through a close economic association in a contract for goods or services with the State, a state agency or authority in a transaction not covered by public notice and competitive bidding or by uniform rates established by the State, a state agency, authority or other governmental entity or by a professional association or organi,zation.
This provision obviously does not prohibit a person who is doing business with the State from running for or holding a seat in the Maine Legislature. Nevertheless, once such a vendor becomes a member of the Legislature and continues to do business with the State, care must be taken that no violation of 1 M.R.S.A. § 1014(3)(A) or any other provision of the governmental ethics law will be violated.
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I hope this information is helpful to you, and please feel free to call upon this office if we can be of further assistance to you.

TIERNEY
General
JET/ec
cc: Michael Petit, Commissioner
Dept. of Human Services