Does a Maine legislator who is appointed to a state commission need to take a separate oath, even though she has already sworn the legislative oath?

Plain-English summary

Speaker John L. Martin asked the Attorney General whether legislators who get appointed to the Special Commission on Governmental Restructuring need to take an oath for the Commission seat, given that they already took an oath as legislators. Attorney General Michael Carpenter said yes.

The reasoning starts with the Maine Constitution at Article IX, Section 1. That provision requires "every person elected, appointed, or commissioned to any judicial, executive, military or other office under this State" to take and subscribe an oath before entering on the duties of the office. The Commission's enabling statute (5 M.R.S.A. § 15193) does not itself require an oath, but the constitutional requirement controls if the seat is an "office under this State."

The Commission is classified by 5 M.R.S.A. § 12004-J(9) as an "independent advisory board." It is set up to advise the executive and legislative branches on government restructuring, with members appointed by the Governor, the Senate President, and the House Speaker. The statute bars Commission members from being employees of the executive branch.

To determine whether the seat is an "office," the AG turned to the 1822 Opinion of the Justices, 3 Me. 481 (1822), which defines "office" as a delegation of some portion of the sovereign power, accompanied by possession of that power. The Special Commission, in the AG's view, exercises a slice of sovereign power through its statutory advisory authority. So each member holds an "office under this State" and must take the constitutional oath.

The oath must be taken before a dedimus justice under 5 M.R.S.A. § 5, and the public officer's status certified under § 6. The legislative oath already taken is for a different office (legislative service), and does not satisfy the separate oath required for the Commission seat.

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

Article IX, § 1 of the Maine Constitution prescribes a uniform oath of office for all public officers under the state. It requires every person elected, appointed, or commissioned to a judicial, executive, military, or "other" office to faithfully discharge the duties of the office in accordance with the constitution and the laws.

5 M.R.S.A. § 5 specifies that the oath be administered before a dedimus justice (an official authorized to administer oaths in Maine). 5 M.R.S.A. § 6 provides for certification of the officer.

The Special Commission on Governmental Restructuring was created at P.L. 1991, ch. 9, §§ S-1 and S-2, and listed at 5 M.R.S.A. § 15193. It functions as an "independent advisory board" under the meta-categorization at 5 M.R.S.A. § 12004-J(9). Independent advisory boards are statutorily distinct from line agencies. The commission was tasked with reviewing the structure of Maine state government and recommending changes.

The 1822 Opinion of the Justices, 3 Me. 481, is the early Maine authority defining "office." Its formulation, that an office involves a delegation and possession of sovereign power, has been carried forward in subsequent Maine cases.

Common questions

Why isn't the legislator's existing oath enough?
Because the legislative oath covers the legislative office, not the Commission seat. Each separate "office under this State" triggers its own oath obligation under Article IX, § 1.

What does the oath actually say?
The text appears in Article IX, § 1 of the Maine Constitution. The individual swears to faithfully discharge the duties of the office in accordance with the constitution and the laws.

Who administers it?
A dedimus justice, per 5 M.R.S.A. § 5. The officer is then certified under § 6.

Is an advisory board really an "office under this State"?
The AG concluded yes, applying the 1822 sovereign-power test. The Commission was statutorily empowered to advise the executive and legislative branches, and that statutory function is enough.

What happens if someone serves without taking the oath?
The opinion does not reach that question. It addresses the requirement, not the consequences of non-compliance. Generally, ultra vires acts of an unqualified officer can be challenged, but de facto officer doctrines may shield prior actions.

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/1991/ag_19910409.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

April 9, 1991

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

Dear Speaker Martin:

I am writing in response to your letter of April 8, 1991 inquiring if legislators who are appointed to the Special Commission on Governmental Restructuring (P.L. 1991, Ch. 9, §§ S-1 and S-2) are required to take an oath as members of that Commission despite the fact that they have already taken an oath as members of the Legislature. Based on Maine constitutional requirements, I am of the opinion that any legislator appointed to the Commission is required to take the constitutional oath before discharging his/her duties on the Commission.

5 M.R.S.A. § 15193 establishes the Commission, but does not explicitly require that an oath be taken by Commission members. However, the Maine Constitution Art. IX, Sec. 1 requires that "... every person elected, appointed, or commissioned to any judicial, executive, military or other office under this State shall, before he enter on the discharge of the duties of his place or office, take and subscribe the following oath or affirmation ...." Thus, if the members of the Commission are appointed to an "office under this State" then they are required to take an oath of office.[1]

The Special Commission on Governmental Restructuring is established as an "independent advisory board" under 5 M.R.S.A. § 12004-J, sub-§ 9. The statute states that the independent advisory boards are boards which are established by law as independent organizations. The Special Commission is an independent Commission established to advise, consult and assist the executive and legislative branches of State government. (5 M.R.S.A. § 15193). Members are appointed to the Commission by the Governor, the President of the Senate and the Speaker of the House. The statute explicitly provides that no member of the Commission may be an employee or retained by the executive branch of State government.

In an 1822 Opinion of the Justices, the Court determined that the term "office" implies a delegation of a portion of the sovereign power to, and possession of it by, the person filling the office. The Court concluded it was highly proper that this delegation should be guarded from abuse and to this end, every person should be under the obligation of the oath. (Opinion of the Justices, 3 Me. 481, 482 (1822)). Applying this standard to the Special Commission, the Commission is an independent board established to advise the executive and legislative branches regarding governmental restructuring. Members are appointed to this independent office to fulfill a statutory responsibility separate from any other duties or responsibilities they may have under other provisions of the Constitution or Maine laws. All members of the Commission are required to take an oath that he/she will faithfully discharge the duties of this office. (See also, Op. Atty. Gen., Feb. 10, 1967).

If a legislator is appointed to the Commission, that legislator is required by the Constitution to take an oath before discharging his or her duties as a member of this Commission.

Sincerely,

Michael E. Carpenter
Attorney General

WV/dab

[1] The oath of office shall state that the individual will faithfully discharge his/her duties in accordance with the constitution and the laws of the State (Me. Const. Art. IX, § 1). The oath shall be taken before a dedimus justice in accordance with 5 M.R.S.A. § 5 and the public officer certified in accordance with 5 M.R.S.A. § 6.