How much flexibility does a Maine state agency have to privatize services that its employees currently provide?

Plain-English summary

Senator Brannigan and Representative Chonko, the Appropriations Committee chairs, asked the AG for general guidance on how much flexibility executive branch agencies had to privatize services that state employees were then providing.

AG Michael Carpenter's answer was: it depends on the agency's specific statutory authority. The Legislature has delegated direct statutory power to contract for some services to some agencies, but not to others. Each proposed privatization has to be reviewed against the agency's particular enabling statutes, plus any specific legislative direction governing the activity at issue.

The opinion's main concrete example concerned the Department of Corrections. The Commissioner had asked Assistant Attorney General Diane Sleek two separate questions earlier in 1991. The first, addressed in Sleek's October 10, 1991 memo, was a financial-orders question about transferring funds between accounts. The second, posed informally weeks later, was whether privatizing the Maine Youth Center in its entirety required legislative approval. Sleek told the Commissioner yes. That advice prompted the administration to propose Part W, Sec. 2 of the Governor's Supplemental Appropriations Bill to obtain the necessary authorization.

By contrast, for medical services to prisoners at the Maine Correctional Center, the Legislature has expressly given the Commissioner statutory authority in 34-A M.R.S.A. § 1206 to contract out those services to public or private community agencies, provided funds are available. No further legislative approval is needed for medical services contracting at MCC.

The opinion's broader rule: "Each discrete service proposed for privatization must be reviewed in the overall statutory context impacting this agency and services to be provided except, of course, if the Legislature specifically authorizes the privatization of the services."

The opinion did not lay out a step-by-step test. It said the answer depends on the agency and the service, and that each proposal needs review in its overall statutory context unless the Legislature specifically authorizes the privatization. It did not decide the legality of every service lacking an express contracting provision.

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.

Common questions

Is a state agency free to contract out whatever it wants?

The opinion says an agency's authority depends on its statutes and the service proposed. It identifies express contracting authority for medical services at the Maine Correctional Center and recounts separate advice that privatizing the Maine Youth Center in its entirety required legislation. For other services, it calls for review of the agency's overall statutory context.

What was special about the Maine Youth Center?

The opinion recounts that an Assistant Attorney General had advised the Corrections Commissioner that privatizing the Maine Youth Center in its entirety required legislative approval. That advice is what prompted the administration to propose Part W, Sec. 2 of the Governor's Supplemental Appropriations Bill to obtain the authorization. The opinion does not spell out the reasoning behind that earlier advice.

What about medical care at the Maine Correctional Center?

That was treated differently. The opinion notes that 34-A M.R.S.A. § 1206 gives the Commissioner statutory authority to contract those services out to a public or private community agency if funds are available, so the Legislature had already authorized that kind of contracting.

What did the opinion say about services not covered by a specific statute?

It did not give a general rule for every service. Its conclusion was that each discrete service proposed for privatization must be reviewed in the overall statutory context affecting that agency, unless the Legislature has specifically authorized the privatization.

Background and statutory framework

The opinion is a brief practical letter answering a budget-committee question. Its governing point is that the agency and the proposed service must be evaluated in their overall statutory context.

Specific statutory authority discussed:

• 34-A M.R.S.A. § 1206: Commissioner of Corrections may contract for medical services at the Maine Correctional Center with public or private community agencies, subject to funds.

The Maine Youth Center privatization legislative-approval question prompted Part W, Sec. 2 of the Governor's Supplemental Appropriations Bill (1991-92 supplemental).

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/1991/ag_19911121.pdf

Original opinion text

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

MICHAEL E. CARPENTER, ATTORNEY GENERAL
STATE OF MAINE
DEPARTMENT OF THE ATTORNEY GENERAL
STATE HOUSE STATION 6
AUGUSTA, MAINE 04333

November 21, 1991

Senator Joseph C. Brannigan, Senate Chair
Representative Lorraine Chonko, House Chair
Joint Standing Committee on Appropriations & Financial Affairs
State House, Room 228
Augusta, Maine 04333

Dear Senator Brannigan and Representative Chonko:

This is in response to your letter of November 16, 1991 asking for legal guidance from this Department regarding the privatization of services currently provided by State employees.

Before I respond to your general question about the flexibility departments have in privatizing their services, I would like to comment on the specific advice that was given to Corrections Commissioner Donald Allen by Assistant Attorney General Diane Sleek. Assistant Attorney General Sleek's advice to Commissioner Allen, as set out in her memorandum of October 10, 1991, did not address the question whether the Department of Corrections could privatize services. Rather, it addressed the legal requirements governing the transfer of funds from one account to another by way of a financial order. Some weeks after that memo was written, Assistant Attorney General Sleek was asked, as a separate matter, to advise informally Commissioner Allen as to whether privatizing the Maine Youth Center in its entirety required legislative approval. Assistant Attorney General Sleek advised Commissioner Allen that legislative approval was required. This advice prompted the Corrections Department to propose Part W, Sec. 2 of the Governor's proposed Supplemental Appropriations Bill.

In regard to the extent of flexibility that the Executive Branch has in privatizing departmental services, it is the opinion of this Department that the answer to that question depends on the agency involved and the services proposed to be privatized. This is because the Legislature has delegated direct statutory authority to some agencies to disburse funds for the support of various services. In the case of medical services to be provided to prisoners at the Maine Correctional Center, the Legislature has given the Commissioner the statutory authority to contract out those services to a public or private community agency under Title 34-A M.R.S.A. § 1206 if funds are available for this purpose. Each discrete service proposed for privatization must be reviewed in the overall statutory context impacting this agency and services to be provided except, of course, if the Legislature specifically authorizes the privatization of the services.

I trust that this response addresses your concerns. Should you require any further assistance, please feel free to contact me.

Sincerely,
MICHAEL E. CARPENTER
Attorney General

cc: Governor John R. McKernan, Jr.
Senator Charles P. Pray
Representative John L. Martin
Commissioner Donald L. Allen