Can a Maine legislator also sit on a city school board?

Plain-English summary

Representative Fred Richardson asked Attorney General Tierney to confirm informal advice he had received: that he could serve simultaneously as a member of the Maine House of Representatives and on the Portland City School Board. Tierney confirmed there is no legal impediment to that dual role.

The interpretive question is Article IV, Part 3, Section 11 of the Maine Constitution, which bars members of Congress and persons "holding any office under the United States" (except post officers) or "office of profit under this State" (except justices of the peace, notaries public, coroners, and militia officers) from sitting in either House while holding such office. The question: is a school board seat an "office of profit under this State"?

The AG's analysis is structured. The Supreme Judicial Court of Maine has not addressed this question. The AG's office had previously addressed two related questions but not this one. Earlier AG opinions (Op. Me. Att'y Gen. 85-22 and Dec. 29, 1977) had concluded that county commissioner and county treasurer are offices of profit under the state because they are statutorily created (30-A M.R.S.A. §§ 61 and 151) and exercise state-statutory functions. A 1971 AG opinion concluded that municipal tax assessor is such an office, because the assessor exercises specific state-law duties (consistent with Inhabitants of the Town of Frankfort v. Waldo Lumber Co., 128 Me. 1 (1929), treating assessors as "agents of the State").

The 1991 opinion goes further to articulate the general rule. The AG surveyed out-of-state authority. The overwhelming majority of state courts addressing the question hold that an office is "under this State" if it is created by state statute or discharges state-statutory functions. Cases supporting the no-state-office side: Wilkins v. Connors (Fla. 1891); People v. Capuzi (Ill. 1960); State ex rel. Platt v. Kirk (Ind. 1874); Britton v. Steber (Mo. 1876); Klair v. Bacharach (N.J. 1932). Cases supporting the yes-state-office side (typically where the office is statutorily created or discharges statutory duties): Smith v. State (Ala. 1964); Wood v. Miller (Ark. 1922); Attorney General ex rel. Moreland v. City of Detroit (Mich. 1897). The AG noted two contrary cases (Willis v. Potts, 377 S.W.2d 622 (Tex. 1964); State v. Peterson, 369 A.2d 1076 (Del. 1976)) but found them against the weight of authority and unpersuasive.

Applied to a municipal school board: municipalities in Maine, while ultimately "creatures of the Legislature," have substantial home-rule latitude to establish their forms of government and offices. A municipal school board is not statutorily created in the same way as a county commission, and does not exercise discrete state-statutory functions in the same way a tax assessor does. So the school board seat is not an "office of profit under this State," and § 11 does not bar a legislator from holding it.

The opinion catalogues prior informal advice the Department had given in 1923, 1926, 1932, 1936, and 1948, all consistent with this result, none accompanied by published analysis. The 1991 opinion is the first to articulate the underlying legal framework.

Currency note

This opinion was issued in 1991. 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

Maine's incompatibility clause at Article IV, Part 3, Section 11 dates to the original 1820 constitution. It tracks a federalist-era concern that legislators not become beholden to the executive (state or federal) through office-holding.

The two exceptions explicitly named in § 11 (justices of the peace, notaries public, coroners, and militia officers) suggest a pattern: ministerial offices with minimal discretionary executive authority. The pattern reinforces the AG's reading: the clause aims at substantive state-statutory offices, not at every public role.

The structural framework the AG settled on:

• An office statutorily created by Maine law + exercising state-statutory powers = "office of profit under this State"
• A municipally-created office exercising municipal powers, even if the municipality itself is enabled by state statute = not under § 11

The Maine Supreme Judicial Court in Inhabitants of the Town of Frankfort v. Waldo Lumber Co. held that tax assessors are "agents of the State." That case has been the doctrinal hook for treating assessors as covered by § 11, which is why the 1971 AG opinion treated assessor as exceptional within the otherwise-municipal world.

Common questions

Can a Maine legislator also serve as a city councilor or selectman?
Yes, by the same reasoning. City council and board of selectmen are municipally-created offices exercising municipal powers, not state-statutory powers. Not bars under § 11.

What about a county commissioner?
No. Per AG Opinion 85-22 (Oct. 31, 1985) and the 1977 opinion, county commissioner is statutorily created (30-A M.R.S.A. § 61) and exercises state-defined functions. It is an "office of profit under this State" barred by § 11.

What about a municipal tax assessor?
No, also barred. Per the 1971 AG opinion and Frankfort v. Waldo Lumber, tax assessors are agents of the State.

Is "of profit" the operative term?
Both "of profit" and "under this State" matter. "Of profit" means the office carries compensation over and above expenses. "Under this State" is the locus question this opinion analyzed in detail.

Could the rule change if the Legislature decided school boards exercise state functions?
The AG's general framework is rooted in the constitution. The Legislature can shape municipal offices but cannot, by simply labeling them, convert them into state offices for § 11 purposes. The substance (creation and powers) controls.

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/1991/ag_19910102.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

January 2, 1991

Representative Fred L. Richardson
Maine House of Representatives
State House Station #2
Augusta, ME 04333

Dear Representative Richardson:

I am writing to confirm the advice rendered in summary form to you by my office several weeks ago that there is no constitutional or legal impediment to your serving simultaneously as a member of the Maine Legislature and a member of the School Board of the City of Portland. The question of the ability of members of the Legislature to hold municipal office is one that has frequently been posed, in that many members of the Legislature, past and present, have held municipal offices of some kind. As set forth more fully below, it has been the longstanding Opinion of this Department that there is no constitutional or other legal difficulty presented by such simultaneous office holding, except for certain county officers, and except for the office of municipal tax assessor.

The question of the extent to which members of the Legislature may hold municipal office is essentially one of interpretation of Article IV, Part 3, Section 11 of the Maine Constitution. That section provides:

No member of Congress, nor person holding any office under the United States (post officers excepted) nor office of profit under this State, justices of the peace, notaries public, coroners and officers of the militia excepted, shall have a seat in either House while a member of Congress, or continuing in such office. (emphasis added)

The question which your inquiry raises is whether a municipal office constitutes an "office of profit under this State" within the meaning of this Section.

The Supreme Judicial Court of Maine has not had occasion to interpret this provision of the Maine Constitution with regard to the holding of municipal office by a member of the Legislature. Nor has this Department had any occasion to examine the question in any extensive way.[1] This Department has, however, formally addressed the question of whether a State legislator may simultaneously hold the office of county commissioner or county treasurer, as well as whether he or she could hold the particular municipal office of tax assessor. In the county Opinions, the Department concluded because the offices of county commissioner and county treasurer were created by statute, they must be considered "offices of profit under this State," and therefore subject to the constitutional prohibition. Op. Me. Att'y Gen. 85-22 and Dec. 29, 1977, copies of which are attached. The 1977 Opinion, however, was careful to point out that it should "not be extended to municipal offices, unless the office also has State duties, ..." Id. at 3. On this point, the Department has advised that since the office of municipal tax assessor is charged with certain duties by state law, that office must be considered "under this State" for purposes of the Constitution. Op. Me. Att'y Gen. (Feb. 1, 1971), copy attached. None of these Opinions, however, specifically address the question of whether members of the Legislature may hold municipal office generally.

While, as just indicated, there is no Maine law directly on point, such authority as exists elsewhere in the country generally supports the position that unless an office is created by statute or discharges a State statutory function, it is not an "office of profit under this State" within the meaning of a State constitutional provision. The overwhelming majority of states having such a provision in their constitution who have addressed the question have found it determinative whether the office in question was created by the state statute or discharges a governmental function under State law. Compare Wilkins v. Connors, 9 So. 7 (Fla. 1891); People v. Capuzi, 170 N.E.2d 625 (Ill. 1960); State ex rel. Platt v. Kirk, 44 Ind. 401 (1874); Britton v. Steber, 62 Mo. 370 (1876); Klair v. Bacharach, 159 A. 538 (N.J. 1932) (municipal office held not an "office of profit under this State" because not created by statute or performing statutory duties) with Smith v. State, 162 So.2d 473 (Ala. 1964); Wood v. Miller, 242 S.W. 573 (Ark. 1922); Attorney General ex rel. Moreland v. City of Detroit, 70 N.W. 450 (Mich. 1897) (municipal office held to constitute an "office under this State" because created by statute or discharging statutory duties). The only authority of which this Department is aware to the contrary is a divided decision of the Supreme Court of Texas in Willis v. Potts, 377 S.W.2d 622 (Tex. 1964) in which the court ignored the question of whether the municipal office was created by statute or exercised statutory duties in finding it to be an "office under this State" under the Texas Constitution, and a similar decision of the Supreme Court of Delaware in State v. Peterson, 369 A.2d 1076, 1078-79 (Del. 1976). This Department, however, finds these decisions to be against the general weight of authority and otherwise unpersuasive. Indeed, the dissenting opinion of Justice Hamilton in Willis constitutes perhaps the best summary of the state of the law at the time of its writing of which this Department is aware. Willis v. Potts, 377 So.2d at 627-630.

Applying these principles to the problem presented by your inquiry, it is clear that a member of a municipal school board, like a member of a city council or a municipal board of selectmen, occupies an office which is neither created by State statute, nor vested with State statutory powers. While municipalities in Maine, as in all other states, are "creatures of the Legislature" in the sense that they are created by legislative act, they are granted considerable latitude by the municipal laws of the State in establishing their forms of government and the nature of the municipal offices which will exercise governmental powers. Thus, unlike the offices of county commissioner or county treasurer[2] and unlike the office of municipal tax assessor,[3] municipal offices in general cannot be considered to be created by State statute, nor exercising State statutory powers. Consequently, they are not "offices of profit under this State" within the meaning of the Maine Constitution, and may therefore be held by members of the Legislature.

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

Sincerely,

James E. Tierney
Attorney General

JET: SW

[1] The Department has on numerous occasions advised that there is no constitutional or legal impediment to such dual office holding, but has never accompanied such advice with any supporting legal analysis. See letters of the Department dated March 6, 1923; February 20, 1926; March 3, 1932; May 6, 1936; and December 17, 1948.

[2] These offices are established by 30-A M.R.S.A. §§ 61 and 151 respectively.

[3] The holders of this office have been found by the Supreme Judicial Court to be "agents of the State." Inhabitants of the Town of Frankfort v. Waldo Lumber Co., 128 Me. 1, 4 (1929).

[Attached: Op. Me. Att'y Gen. 85-22 (Oct. 31, 1985) to Rep. Gary C. Cooper, concluding that under Article IV, Part 3, Section 11, a State Legislator may not simultaneously hold the office of Cumberland County Commissioner or Treasurer. The 1985 opinion also discusses Chapter 413 of the Public Laws of 1985, and the 1977 Aroostook County Treasurer opinion, and walks through the meaning of "office," "of profit," and "under this State."]