Did Baxter State Park violate its hiring statute by using contractors instead of civil-service employees at Kidney Pond and Daicey Pond?

Plain-English summary

This is the underlying Assistant AG letter that the State Auditor questioned, prompting the AG's later confirmation in February 1991. [[1991-02-21-use-of-contractors-in-baxter-state-park]]

The State Auditor had questioned Baxter State Park's practice of hiring contractors to operate the Kidney Pond and Daicey Pond cabins. The Auditor cited 12 M.R.S.A. § 904, which requires Park "agents and representatives" to be hired through the Civil Service. Park Director Irvin Caverly asked for guidance.

Assistant Attorney General Paul Stern wrote back on December 6, 1990, in this short two-paragraph letter. His conclusion: § 904 governs how Park employees must be hired (through civil service and the state's collective bargaining agreement). It does not address, and therefore does not limit, the Park's authority to retain contractors to provide services. Engaging contractors at Kidney Pond and Daicey Pond is "outside the scope of section 904." A separate question, whether the contracting practice violates the State Employees Labor Relations Act, had to be answered by the Bureau of Employee Relations, which had already addressed it in a December 4, 1990 letter.

The State Auditor was not persuaded and elevated the matter to Attorney General Carpenter, who reaffirmed Stern's conclusion in the February 21, 1991 opinion.

Currency note

This opinion was issued in 1990. 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.

Background and statutory framework

Baxter State Park is governed by a special statutory scheme separate from the Department of Conservation, with its own statutory hiring rule at 12 M.R.S.A. § 904. The Park was donated to the State by Governor Percival Baxter beginning in 1931 under deed restrictions requiring it remain "forever wild."

Section 904's text limits its reach to "agents and representatives" of the Park. The Assistant AG's reading: if a person is an agent or representative, they must be hired through civil service. The statute is silent on contractor relationships, and silence is read as not prohibiting.

The State Employees Labor Relations Act sits in a parallel track. Whether contracting out work that could otherwise be done by state employees violates that statute is a different legal question, answered by a different agency (Bureau of Employee Relations). The Bureau answered no in its December 4, 1990 letter, which Stern referenced as complementary to his conclusion.

Common questions

Why is this letter important if AG Carpenter wrote a fuller opinion three months later?
Because the February 1991 opinion incorporates Stern's reasoning and the Bureau of Employee Relations's December 4 letter. Stern's December 6, 1990 letter is the original statement of the legal position. Carpenter's role was to confirm it after the State Auditor pushed back.

Does this immunize all state-government contracting?
No. The opinion's reasoning is narrow to § 904 (a Park-specific statute) and to a specific factual context (the unique Kidney and Daicey Pond operations). It does not apply to other state agencies.

Could the State Auditor's concern (employee-vs-contractor classification) still be raised in a different forum?
Yes. IRS misclassification claims, FLSA claims, and state wage-and-hour claims could be raised by the workers themselves under different legal frameworks. The opinion only addresses § 904.

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/1990/ag_19901206.pdf

Original opinion text

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

State of Maine
Department of the Attorney General
State House Station 6
Augusta, Maine 04333

December 6, 1990

Irvin C. Caverly, Jr., Director
Baxter State Park
64 Balsam Drive
Millinocket, Maine 04462

Re: Audit

Dear Buzz:

We are in receipt of an inquiry relating to the Park's contracting out certain services. In particular, at a recent audit, the Park's practice of hiring contractors to run Kidney Pond and Daicey Pond cabins has been questioned under 12 M.R.S.A. § 904. Based upon my understanding of the facts, there appears to be no violation of that particular provision.

Section 904 provides that the agents and representatives of the Park shall be hired pursuant to the Civil Service Law. In effect, section 904 requires only that Park employees be hired pursuant to the normal personnel laws and, therefore, the collective bargaining agreement of the State. Section 904 does not speak to and, therefore, does not limit the Park's authority to retain contractors to provide services. Consequently, the questioned practice of engaging contractors at Kidney Pond and Daicey Pond is outside the scope of section 904. Whether or not the practice violates the State Employees Labor Relations Act is a question that must be, and has been, answered by the Bureau of Employee Relations. This advice is consistent with, and complementary to, the conclusions contained in the December 4, 1990 letter from the Bureau of Employee Relations.

If you need any further assistance, please feel free to contact me.

Sincerely,

Paul Stern
Assistant Attorney General