Can the Maine Legislature raise the Governor's salary in the middle of his first term, with the raise taking effect at the start of his second term, while he is still in office?

Plain-English summary

The Maine State Compensation Commission, through Stephen R. Crockett, asked the AG's office whether the Legislature could raise the Governor's salary during his first term, with the increase effective at the start of his second consecutive term. Deputy AG Cabanne Howard, who chaired the Opinions Division, answered no. As long as the Governor continued in office without a break, the constitutional language barred a higher salary from reaching him, even one enacted during the first term and notionally postponed to the second.

The operative provision is Article V, Part First, Section 6 of the Maine Constitution: "The Governor shall, at stated times, receive for his services a compensation, which shall not be increased or diminished during his continuance in office." The provision has been in the Maine Constitution since 1821 and has never been interpreted by the Maine Supreme Judicial Court. Howard's analysis turned on the choice of the phrase "continuance in office" over the alternative phrase "during the term for which he shall have been elected."

That alternative phrase was no stranger to the Maine framers. The U.S. Constitution, ratified some thirty years before the Maine Constitution, used "during the Period for which he shall have been elected" for the President's compensation (Art. II, § 1, cl. 7) and used the looser "during their Continuance in Office" for federal judges (Art. III, § 1). The federal text drew a deliberate line: federal judges (who serve for life) cannot be diminished in compensation as long as they continue in office, but presidential compensation cannot change at all during the elected term. The Maine framers, drafting in 1819-1820, would have had both phrases before them.

Maine's drafters used the looser "continuance in office" language for both the Governor (Art. V, Pt. 1, § 6) and Maine judges (Art. VI, § 2). They used the tighter "during the term for which he shall have been elected" language in a different setting, the legislator-to-executive-office bar in Art. IV, Pt. 3, § 10. That juxtaposition was the heart of Howard's opinion. Because the framers picked "continuance in office" for the Governor's compensation despite having the tighter formulation available, the broader limit must mean something broader. Howard read that as a complete ban on salary increases that take effect while a Governor continues in office, even if the legislative action would apply only at the start of a later term.

Howard acknowledged the resulting hardship. A Governor elected for a four-year term, with the possibility of consecutive reelection, could face up to eight years of frozen salary under inflationary conditions. He offered a possible historical explanation. Governors in 1820 served one-year terms with no constitutional bar to indefinite reelection. The framers may have used "continuance in office" precisely to prevent a politically dominant Governor from leveraging the Legislature for self-serving salary increases. The U.S. presidential provision, drafted against the backdrop of a fixed four-year term, did not require the same protection. The contrast between "continuance in office" and "during the term for which he shall have been elected" is stark, and Howard concluded it had to be given effect.

The practical upshot: any legislatively enacted raise to the Governor's compensation could be effective only for a Governor who took office after a break (a successor not in continuous service from a prior term). The State Compensation Commission's recommended schedule would have to be structured to honor that limit.

Currency note

This opinion was issued in 1988. 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

What's the difference between 'continuance in office' and 'during the term'?

"Continuance in office" reaches the entire period the person actually holds the office, including consecutive terms with no break. "During the term for which he shall have been elected" reaches only the single term being held. A sitting Governor consecutively reelected continues in office; the same Governor begins a new "term" at each reelection.

Why does it matter that the U.S. Constitution used both phrases?

It tells you the drafters of the Maine Constitution had two distinct formulations available. By choosing the broader one ("continuance in office") for the Governor's compensation, the Maine drafters signaled a more restrictive rule on legislative pay manipulation, not just a single-term limit.

Could the Legislature still enact a raise during a Governor's first term?

Yes, the Legislature could enact the statute. But it could not be applied to a Governor who continued in office without a break. A new Governor not in continuous service from the prior incumbent could take office at the raised salary.

What about judges?

Maine judges have a parallel "continuance in office" protection in Art. VI, § 2, but only against decreases ("shall not be diminished"). The Maine judicial compensation provision tracks the federal judicial compensation provision, and Howard treated the two clauses as a matched pair drafted from the same model.

Did Howard rely on case law?

No. Howard noted that the Maine Supreme Judicial Court has never interpreted Art. V, Pt. 1, § 6. The opinion rested on textual contrast within the Maine Constitution and on the federal-constitution drafting choices the Maine framers would have had as models.

Background and statutory framework

The Governor's compensation clause has been in the Maine Constitution since 1821, when Maine separated from Massachusetts and enacted its founding document. The companion judicial compensation clause is in Art. VI, § 2. The legislator-bar clause is in Art. IV, Pt. 3, § 10. Together, the three provisions show that the drafters were thinking carefully about timing of compensation and qualification rules and had different formulations available to them. The U.S. Constitution provided two ready-made templates (Art. II, § 1, cl. 7 for the President; Art. III, § 1 for federal judges). Maine's choice of the broader "continuance in office" language for the Governor and the judges marks a deliberate framing decision.

Citations

• Me. Const. art. V, pt. 1, § 6
• Me. Const. art. VI, § 2
• Me. Const. art. IV, pt. 3, § 10
• U.S. Const. art. II, § 1, cl. 7
• U.S. Const. art. III, § 1

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/1988/ag_19881227.pdf

Original opinion text

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

88-9

JAMES E. TIERNEY
ATTORNEY GENERAL

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

December 27, 1988

Stephen R. Crockett, Chairman
State Compensation Commission
Office of Fiscal and Program Review
State House Station #5
Augusta, Maine 04333

Dear Mr. Crockett:

I am writing in response to an inquiry on behalf of the State Compensation Commission from the Office of Fiscal and Program Review soliciting the opinion of this Department as to the power of the Legislature to increase the salary of a sitting Governor during his first term in office, to be effective upon the commencement of his second, consecutive term. For the reasons which follow, it is the opinion of this Department that, while the Legislature may, of course, pass a statute raising the salary of the Governor at any time, such a statute may not be applied to a sitting Governor for so long as he continues without break in office.

Article V, Part First, Section 6 of the Maine Constitution provides:

The Governor shall, at stated times, receive for his services a compensation, which shall not be increased or diminished during his continuance in office.

This provision, which appears in the original Maine Constitution of 1821, has not been interpreted by the Supreme Judicial Court.

The issue which your question presents is the meaning of the words "continuance in office," a phrase which also appears in the provision of the Maine Constitution relating to the compensation of judges. Me. Const., art. VI, § 2 (The judges of the State, who serve for terms of seven years, "shall, at stated times, receive a compensation, which shall not be diminished during their continuance in office.") There is no indication in the debates of the Maine Constitutional Convention of 1819-20 as to what the intention of the framers of the Maine Constitution was when they included this phrase in the compensation clauses in question. Nor is there any indication in the Constitution of the Commonwealth of Massachusetts, from which Maine separated in 1821, as to the meaning of the phrase, the compensation clauses of that state's constitution being entirely different.

Of possible significance, however, is the phrasing of the compensation clauses for the President of the United States and the judges of the United States in the Federal Constitution, which entered into force some 30 years previously, and would have therefore been available as a model to the Maine framers. Article III, Section 1 of that document provides that the federal judges "shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office," language almost identical to that of the two compensation clauses in the Maine Constitution. However, Article II, Section 1, paragraph 7, of the United States Constitution provides:

The President shall, at stated Times, receive for his Services a Compensation which shall neither be increased nor diminished during the Period for which he shall have been elected, ...

Thus, it is clear that, under the United States Constitution, federal judges, who serve for life, may not have their compensation diminished during their tenure in office, but that the President may have his compensation increased or decreased, so long as that change is not effective during the President's term of office in which the change is enacted.

The phrase "during the period for which he shall have been elected" was therefore not unknown to the drafters of the Maine Constitution. Indeed, the drafters used that very phrase in the provision of the Maine Constitution prohibiting members of the Legislature from being appointed to certain Executive Branch positions during their terms. Me. Const., art. IV, pt. 3, § 10.[1] Thus, had the drafters of the Maine Constitution wanted to allow the Legislature to increase the salary of a sitting Governor to be effective in future terms of office of that Governor, they could easily have done so by using the terms of the compensation clause of the President in the United States Constitution, terms of which they made use in at least one other place in the Maine Constitution. Since they did not choose to employ those terms in the compensation clause relating to the Maine Governor, it must be concluded that they intended to prohibit the Legislature from raising a sitting Governor's salary for so long as he continued in office.

This Department regrets that the effects of this conclusion may be severe, in an inflationary age, on a Governor commencing on a term of office which may last for as long as eight years. It must be remembered, however, that at the time of the establishment of the Maine Constitution, Governors served for only one year and had no constitutional impediment to indefinite reelection. Thus, it may be that the framers of the Maine Constitution intended, by including the phrase "continuance in office" rather than the phrase "during the term for which he shall be elected" in the Governor's compensation clause, to prohibit a politically powerful Governor from inducing the Legislature into passing salary increases for his personal benefit. The fact that the President of the United States has served, from the beginning of the Republic, a four-year term may have motivated the framers of the United States Constitution not to limit the power of Congress to increase his salary so severely. In any event, the contrast in meaning between the phrase "continuance in office" and the phrase "during the term for which he shall have been elected" is stark, and must be given effect.

I hope the foregoing answers the Commission's question. Please feel free to reinquire if further clarification is necessary.

Sincerely,
CABANNE HOWARD
Deputy Attorney General
Chief, Opinions Division

CH/ec

cc: Governor John R. McKernan, Jr.
Bent Schlosser, Director, Office of Fiscal and Program Review

[1] "No Senator or Representative shall, during the term for which he shall have been elected, be appointed to any civil office for profit under this State, which requires the approval of the Legislature for appointment or which shall have been created, or the emoluments of which increased during such term, except such offices as may be filled by elections by the people." (Emphasis added)