Could Maine's Deputy Secretary of State also serve on the Maine Turnpike Authority?

Plain-English summary

The Maine Attorney General concluded in 1987 that Peter W. Danton could serve simultaneously as Deputy Secretary of State and as a member of the Maine Turnpike Authority.

Both positions belonged to the executive branch, so the opinion found no separation-of-powers problem. The statutes governing the offices did not bar dual service, and a general state law contemplated that full-time state employees could serve on part-time state boards or commissions.

The remaining question was common-law incompatibility. The opinion applied the rule that two offices were incompatible when one person could not discharge both sets of duties in every instance. Because the Turnpike Authority did not regulate the Department of State and the Department of State did not exercise substantive authority over the Authority, the AG found no conflict.

The Secretary of State's ministerial duty to receive agency rules for filing did not change the result. The opinion said that function was too limited to create a legal incompatibility.

Currency note

This opinion was issued in 1987. 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

Did the two positions create a constitutional conflict?

No. The opinion said both offices were within the executive branch.

Did either office's statute prohibit holding another state position?

No. The AG found the governing statutes silent on dual service.

What common-law test did the opinion apply?

It asked whether the holder could discharge the duties of both offices in every instance. If not, accepting the second office would vacate the first.

Did filing Turnpike Authority rules with the Secretary of State create incompatibility?

No. The opinion treated that filing authority as ministerial and insufficient to create a legal conflict.

Background and statutory framework

The Secretary of State asked whether appointing a sitting Turnpike Authority member as Deputy Secretary of State would prevent continued Authority service.

The opinion considered constitutional, statutory, and common-law grounds. It cited the Turnpike Authority statute, the compensation rule for state employees serving on part-time boards, and the Administrative Procedure Act's rule-filing provision.

Citations discussed

• 23 M.R.S.A. § 1961, et seq., concerning the Maine Turnpike Authority
• 5 M.R.S.A. § 12003-A(4), concerning compensation when full-time state employees served on part-time boards or commissions
• King v. Tizzard and Howard v. Harrington, stating the common-law incompatibility test

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/1987/ag_19870803a.pdf

Original opinion text

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

87-12
JAMES E. TIERNEY
ATTORNEY GENERAL

STATE OF MAINE
DEPARTMENT OF THE ATTORNEY GENERAL
STATE HOUSE STATION 6
AUGUSTA, MAINE 04333

August 3, 1987

Honorable Rodney S. Quinn
Secretary of State
State House Station #29
Augusta, Maine 04333
Dear Secretary Quinn:
You have asked whether the appointment of Mr. Peter W.
Danton to the position of Deputy Secretary of State would prevent him from continuing to serve as a member of the Maine Turnpike Authority because of any incompatibility between the two offices. For the reasons which follow, it is the Opinion of this Department that the two offices are not incompatible, and that Mr. Danton may hold them simultaneously.
Mr. Danton is currently one of the five members of the Maine Turnpike Authority, a state agency which is responsible for the operation of the Maine Turnpike. 23 M.R.S.A. § 1961, et seq. The office to which you propose to appoint him, that of Deputy Secretary of State, is responsible for the Division of Public Administration, which·has responsibility, among other things, for the conduct of state elections and the registration of corporations to do business in the State. Your question is whether Mr. Danton is prohibited by law from holding both offices simultaneously.
It is, first of all, important to note that since the two offices in question both belong to the Executive Branch of government, there is no constitutional question raised. Op.Me.Att'y Gen. (Apr. 24, 1973) (position of right-of-way -2- agent at the Department of Transportation not incompatible with membership on the Soil and Water Conservation Commission). Nor does there appear to be any statutory bar to both positions being held simultaneously, the statutes relating to each position being silent as to whether incumbents in either position are prohibited from holding other state office. See, e.g., Op.Me.Att'y Gen. (Nov. 30, 1973) (Director of Bureau of Civil Defense prohibited by statute, 37-A M.R.S.A. § 1(2), from serving on the Maine Human Rights Commission). Indeed, a general provision of state law, 5 M.R.S.A. § 12003-A(4), expressly contemplates that full-time state employees, such as a Deputy Secretary of State, may from time to time serve on part-time boards or commissions of the state by providing for the method of their compensation in such circumstances.
Since there is no constitutional or statutory impediment to the holding of both offices by Mr. Danton, the only question remains whether the offices might be found as a matter of common law to be incompatible. The general rule on this point is: "Two offices are incompatible when the holder cannot in every instance discharge the duties of each. The acceptance of the second office, therefore, vacates the first." King v.
Tizzard, 9 B. & C. 418, quoted in Howard v. Harrington, 114 Me.
443, 446 (1916). The question thus becomes whether the discharge of the functions of Deputy Secretary of State would in any way be inconsistent with the discharge of the functions of a member of the Maine Turnpike Authority.
In this regard, the only Opinion of this Department thus ( far to have found two positions in the Executive Branch to be incompatible was that of August 2, 1973, in which the Department advised that the Commissioner of Conservation could not serve on the Board of Environmental Protection for the reason that the Department of Conservation had historically been required to obtain various permits from the Board, thus rendering service in the two positions incompatible.
Op.Me.Att'y Gen. (Aug. 2, 1973). On the other hand, the Office has ruled that the position of Adjutant General was not inconsistent with the position of Chief of the State Highway Police, Op.Me.Att'y Gen. (Nov. 30, 1927), reprinted in 1924-28 Me.Att'y Gen. Ann. Rep. 275-76, and that the position of Commissioner of Finance was not incompatible with that of the position of State Controller, Op.Me.Att'y Gen. (May 6, 1942), reprinted in 1941-42 Me.Att'y Gen. Ann. Rep. 109. In the view of this Department, the question which you pose clearly falls in the latter category of cases. The Maine Turnpike Authority exercises no regulatory authority over the activities of the Department of State, nor does the Department of State exercise -3-
any authority over the Maine Turnpike Authority.[1] Thus, there is no incompatibility between the two offices in question, and they may be held simultaneously.
I hope the foregoing responds to your question. Please feel free to reinquire if further clarification is necessary.

Sincerely,

JAMES E. TIERNEY
Attorney General
JET/ec cc: Robert Pachios, Acting Chairman, Maine Turnpike Dana Connors, Commissioner of Transportation Peter W. Danton

[1] The Secretary of State is required, pursuant to Section 8056(1)(B) of the Maine Administrative Procedure Act, 5 M.R.S.A. § 8001, et seq., to receive for filing "in a form prescribed by [him]" all rules adopted by state agencies, including the Maine Turnpike Authority. In the view of this Department, the exercise of this ministerial authority by the Secretary over the Authority is of insufficient significance to cause a legal incompatibility to arise between the offices of Deputy Secretary of State and member of the Maine Turnpike Authority. If, however, you were concerned about this particular problem, it could be remedied simply by not assigning to Mr. Danton the responsibility for supervising the filing of rules with your office.