Does the Maine statute that lets a chartered county form a finance committee to review the county budget violate the constitutional rule that taxes can only be imposed by elected officials?

Plain-English summary

Speaker John L. Martin asked AG James E. Tierney to confirm in writing the office's earlier oral advice on the constitutionality of 30-A M.R.S.A. § 1353, the Maine statute that lets a chartered county form a finance committee. The question was whether the committee created an unelected body with the power to impose taxes, in violation of Me. Const. art. I, § 22 ("No tax or duty shall be imposed without the consent of the people or of their representatives in the Legislature"). The Law Court had held in City of Lewiston v. Lewiston Educational Directors, 503 A.2d 210, 214 (Me. 1985), that this provision means taxes cannot be imposed by any level of Maine government unless approved by elected officials. Tierney concluded that § 1353 satisfied this rule on two independent grounds.

First, the finance committee itself is composed of elected officials. Section 1353(1) provides two alternative selection methods. Under Method A, each elected county commissioner appoints finance-committee members from his district's "municipal officers." The term "municipal officers" is defined in 30-A M.R.S.A. § 2001(10) to include selectmen, town councillors, mayors, and aldermen, all of whom (the opinion notes) are required by law to be elected. So both the appointors (county commissioners) and the appointees (municipal officers) are elected. Under Method B, the municipal officers within each county commissioner district caucus and elect finance-committee members, again from among elected officials. Either way, the committee is constituted by and from elected representatives.

Second, even if a court treated the finance committee as appointed rather than elected, § 1353 would still satisfy art. I, § 22 because ultimate budget-fixing authority is reserved to elected bodies. If the finance committee approves the proposed budget, the county commissioners (an elected body) must give final approval. If the finance committee rejects the proposed budget, the county operates on an interim budget of not more than 80 percent of the previous year's budget until a permanent budget can be approved. The 80 percent interim budget is established by direction of the Maine Legislature, also an elected body. In either case, the binding budget decision rests with elected officials. The Lewiston case had recognized the possibility that a "de facto" transfer of taxing authority away from elected officials might violate art. I, § 22, but Tierney reasoned that no such transfer happens under § 1353 because the elected county commissioners retain final approval over the entire budget.

The opinion is short but tightly reasoned. The two grounds are independent: even if the finance committee were entirely appointed, the elected-decision-maker preservation would carry the constitutional analysis. Together, they leave § 1353 well clear of the art. I, § 22 line.

Currency note

This opinion was issued in 1989. 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 is a county charter in Maine?

Maine counties can adopt charters that restructure county government, much as municipalities can adopt home-rule charters under Title 30-A. A county charter typically provides for a county manager, defines the budget process, allocates powers between commissioners and other bodies, and may include a finance committee. The charter is adopted by voters in the county after going through a charter commission process.

How does the finance committee differ from the county commissioners?

The county commissioners are the elected governing body of a Maine county (typically three commissioners). The finance committee, under § 1353, is a separate body composed of elected municipal officers (selectmen, mayors, etc.) from across the county. It functions as an intermediate review body for the annual budget. If it approves, the commissioners adopt the budget; if it rejects, the county operates on an automatic interim budget at 80 percent of prior-year levels.

What did the Lewiston Educational Directors case hold?

In City of Lewiston v. Lewiston Educational Directors, 503 A.2d 210 (Me. 1985), the Law Court held that art. I, § 22 prohibits any non-elected body from imposing a tax. The court also recognized in a footnote that a delegation of control over a city budget to an appointed committee could result in a "de facto" transfer of taxing authority, which would also violate art. I, § 22, but declined to find such a transfer on the facts of that case.

Why doesn't the 80 percent interim budget trigger art. I, § 22?

The 80 percent figure was set by the Legislature itself in § 1353, so the "tax" imposed under the interim budget is the result of legislative action. Maine's elected Legislature exercised its constitutional taxing authority when it enacted the interim-budget rule. When a chartered county defaults to the interim budget because the finance committee rejected the proposed budget, that is the operation of the Legislature's prior decision, not the finance committee's decision.

Does this opinion apply only to Aroostook County or to all chartered counties?

The opinion was prompted by Aroostook County's adoption of a charter, with John D. McElwee (Aroostook County Commissioner) and John Pluto (Special Counsel) copied. The constitutional analysis applies to any Maine county that adopts a charter and forms a finance committee under § 1353. The opinion's reasoning is generic to the statute, not Aroostook-specific.

Background and statutory framework

Maine's county charter framework gives counties significant structural flexibility, including the option to install a finance committee as an intermediate budget review body. The constitutional question is whether interposing such a committee between the budget process and the county commissioners shifts taxing authority away from elected officials. Tierney's opinion concludes it does not, because the finance committee is itself elected and because final budget authority remains with elected commissioners (or, in the override case, with the Legislature). The result preserves county charter flexibility while keeping § 1353 within constitutional bounds.

Citations

• 30-A M.R.S.A. § 1353 (finance committee formation under county charter)
• 30-A M.R.S.A. § 1353(1) (selection methods A and B)
• 30-A M.R.S.A. ch. 11 (county charters)
• 30-A M.R.S.A. § 51 (election of county commissioners)
• 30-A M.R.S.A. § 2001(10) (definition of municipal officers)
• Me. Const. art. I, § 22 (no tax without consent of people or their representatives)
• City of Lewiston v. Lewiston Educational Directors, 503 A.2d 210, 214 (Me. 1985)

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/1989/ag_19890518.pdf

Original opinion text

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

89-6

JAMES E. TIERNEY
ATTORNEY GENERAL

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

May 18, 1989

Honorable John L. Martin
Speaker, Maine House of Representatives
State House Station #2
Augusta, Maine 04333

Dear Speaker Martin:

I am writing to confirm advice rendered to you orally by my office recently concerning the constitutionality of 30-A M.R.S.A. § 1353, which provides for the formation of a finance committee by a county adopting a charter pursuant to Chapter 11 of Title 30-A. Your inquiry was whether this provision violated Article I, Section 22 of the Maine Constitution because it might be viewed as creating a governmental entity with the power to impose taxes which is not composed of elected officials. For the reasons which follow, it is the Opinion of this Department that the statute does not violate the constitutional provision because the committee which it creates is, in fact, composed of elected officials, and in any event does not have the ultimate authority to approve a county budget.

Article I, Section 22 of the Maine Constitution provides that "No tax or duty shall be imposed without the consent of the people or of their representatives in the Legislature." It appears clear that this provision means that a tax may not be imposed by any level of government in Maine unless approved by elected officials. City of Lewiston v. Lewiston Educational Directors, 503 A.2d 210, 214 (Me. 1985). The first question, therefore, raised by your inquiry is whether the finance committee contemplated by 30-A M.R.S.A. § 1353 consists of elected officials.

The statute contemplates two alternative methods of selection of the members of the finance committee:

A. Each county commissioner shall appoint the finance committee members from that commissioner's district from among the municipal officers of that district.
B. The municipal officers within each county commissioner district shall caucus and elect to the finance committee members from that district. The principle of proportional representation shall be followed in the election of the finance committee.

30-A M.R.S.A. § 1353(1).

Both of these alternatives provide for the choosing of the membership of the finance committee by elected officials, from among elected officials. In method A, the county commissioners, who are themselves elected, 30-A M.R.S.A. § 51, select the members of the finance committee from among the "municipal officers" of their respective commissioner districts. The term "municipal officers" is defined by 30-A M.R.S.A. § 2001(10) to include the selectmen or councillors of a town or the mayor and aldermen or councillors of a city. All of these officials are required by law to be elected. Thus, the requirement that members of governmental bodies imposing taxes be elected is met under method of selection A.

With regard to method B, the statute provides that the municipal officers, who as just indicated are elected officials, shall caucus and elect members of the finance committee. The statute does not indicate that the members so elected should be municipal officers themselves, but that is a reasonable interpretation of the Legislature's intention. Thus, the constitutional requirement is met for this method of selection also, since both the persons choosing the finance committee and the persons ultimately chosen are elected municipal officers.

Beyond this, even if a court would find that the members of the finance committee are appointed rather than elected, the statute would still not violate the constitutional prohibition because the finance committee does not have ultimate authority to impose taxes. Under Section 1353, each annual county budget must first be submitted to the finance committee. If the committee approves the budget, it is then sent on to the county commissioners themselves for final approval. If the budget is not approved by the finance committee, the statute provides that the county operates on an interim budget consisting of not more than 80% of the previous year's budget until a permanent budget can be approved. In either case, therefore, the ultimate budget-fixing authority resides in elected officials. If the finance committee approves, the county commissioners, who as indicated above are an elected body, must approve. If the finance committee rejects the proposed budget, then the county operates on an interim budget of 80% pursuant to the direction of the Maine Legislature, also an elected body. In short, since final approval over the budget-establishing process is retained in either case in elected officials, Article I, Section 22 of the Maine Constitution is not violated. City of Lewiston v. Lewiston Educational Directors, supra at 214.

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

JAMES E. TIERNEY
Attorney General

JET/ec

cc: John D. McElwee, Aroostook County Commissioner; John Pluto, Special Counsel to Aroostook County Commissioners