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 AG read the finance committee as composed of elected officials. Section 1353(1) provides two selection methods. Under Method A, each elected county commissioner appoints members from the district's "municipal officers." The AG borrowed the definition of that term in 30-A M.R.S.A. § 2001(10), while acknowledging that it expressly applies to the part of Title 30-A governing municipalities, not counties. Although the opinion said these officers were elected, a footnote cited an election statute only for selectmen and said the Department knew of no appointed city or town councillors, aldermen, or mayors. Under Method B, municipal officers caucus to elect members. The statute did not expressly require those elected members to be municipal officers, but the AG considered that a reasonable reading of legislative intent.

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 second ground does not depend on whether a court would consider the finance committee members elected: in the AG's view, the committee lacked ultimate budget authority either way.

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 was the constitutional concern with a county finance committee?

The Speaker asked whether § 1353, which permits a county adopting a charter to form a finance committee, could give taxing power to a body whose members were not elected. Article I, Section 22 of the Maine Constitution requires taxes to have the consent of the people or their representatives.

How does the finance committee differ from the county commissioners?

Under § 1353 as described in the opinion, the annual budget goes to the finance committee first. If the committee approves, elected county commissioners consider it for final approval. If the committee rejects it, the county operates under an interim budget of no more than 80 percent of the previous year's budget until a permanent budget is approved.

What did the Lewiston Educational Directors case hold?

As the AG explained it, City of Lewiston v. Lewiston Educational Directors, 503 A.2d 210 (Me. 1985), requires taxes to be approved by elected officials. The Law Court noted the possibility of a "de facto" transfer of taxing authority to an appointed body but declined to find one there because the money at issue was small relative to the whole budget.

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

The AG reasoned that when the finance committee rejects a proposed budget, the interim budget follows the direction of the elected Maine Legislature. He therefore treated the budget authority in that situation as remaining with elected officials.

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

The opinion copied John D. McElwee, an Aroostook County Commissioner, and John Pluto, Special Counsel to the Aroostook County Commissioners. It analyzed § 1353's finance-committee structure rather than a specific county budget.

Background and statutory framework

Section 1353 provides for a finance committee when a county adopts a charter under Chapter 11 of Title 30-A. The constitutional question was whether that committee shifted taxing authority away from elected officials. The AG concluded that it did not: he read the selection methods as producing elected members and found that final budget authority rested with elected officials even if the committee were regarded as appointed.

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)
• 30-A M.R.S.A. § 2525 (selectmen)
• 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

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.¹ All of these officials are required by law to be elected.² 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.

¹ It is true that by its terms this definition applies only to Part 2 of Title 30-A relating to municipalities, and therefore not to Part 1 of the Title which deals with counties. There is no reason to suppose, however, that the Legislature intended the term to have a different meaning in the first Part of the same Title, particularly since it did not choose to define the term separately for that Part.

² See, e.g., 30-A M.R.S.A. § 2525 (selectmen). It does not appear that the Maine statutes specifically provide for the election of city or town councillors, aldermen or mayors, but this Department is not aware that any of these officials in the State are appointed.

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 214.³

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

³ In the City of Lewiston case, the Law Court noted in a footnote that, while it was alert to the possibility that a delegation of control over a city budget to a committee authorized to engage in collective bargaining might result in the "de facto" transfer of the taxing function away from elected officials to an appointed body, since the amount of money at issue in that case was so small in relation to the entire budget in question, the Court declined to find that a de facto transfer had occurred. Id. at 214, n. 10. Here, however, there is no possibility of such a transfer occurring, since, as indicated above, ultimate approval authority over the entire budget has been retained by elected officials.