Can Maine's Governor nominate and have the Senate confirm a successor to a state office before the prior officeholder's resignation takes effect, then delay commissioning until the vacancy occurs?

Plain-English summary

The Director of the Maine State Housing Authority (MSHA), Dwight Sewall, had announced his resignation effective July 1, 1994. Governor John McKernan wanted to nominate his successor (David Lakari) during the then-current legislative session, have the legislative committee review the nomination and the Senate either confirm or override, but then delay the actual commissioning of Lakari until Sewall's seat was empty. The Housing and Economic Development Committee asked the AG whether that sequence was lawful.

The AG concluded it was. Filling an executive office under Maine law works in four stages: (1) nomination by the Governor under Me. Const. art. V, pt. 1, § 8; (2) committee review and Senate confirmation; (3) appointment or commissioning by the Governor; (4) qualification (the appointee takes the oath of office under 5 M.R.S.A. § 6). The Maine Constitution and statutes attach time limits to stages two and four (the committee must vote within 30 days, the Senate within 45, and the appointee must qualify within 30 days of being commissioned), but they impose no time limit on stage three. So once the Senate had confirmed Lakari, the Governor could simply wait to commission him until close to Sewall's last day, after which Lakari would qualify by taking the oath.

The Director of MSHA is one of those officers whose appointment process is governed by both the general constitutional framework and a specific statutory provision (30-A M.R.S.A. § 4723(2)(C)) prescribing a four-year term, removal only for cause, and confirmation by the Legislature. The AG read the specific MSHA statute as consistent with the general scheme, so no conflict prevented the proposed sequencing.

Currency note

This opinion was issued in 1994. 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 are the four stages of filling a Maine executive office?

Nomination by the Governor, committee review plus Senate confirmation, appointment (commissioning) by the Governor, and qualification (oath-taking) by the appointee. Each stage has a constitutional or statutory source.

Where do the time limits come from?

Me. Const. art. V, pt. 1, § 8 (as elaborated by 3 M.R.S.A. § 151) governs stage two: 30 days for the committee vote, 45 days for the Senate vote, both measured from the Governor's written notice to the President of the Senate and the Speaker of the House. 5 M.R.S.A. § 6 governs stage four: appointees must qualify within 30 days of being commissioned. No statute or constitutional clause prescribes a timeline between confirmation and commissioning.

Why would the Governor want to delay commissioning a confirmed appointee?

To avoid creating two simultaneous officeholders or paying the incoming appointee while the incumbent finishes his term. By delaying the commission until just before the vacancy opens, the appointee qualifies on or shortly after the vacancy date, and the office passes cleanly from one to the next.

Did MSHA's enabling statute change the analysis?

No. 30-A M.R.S.A. § 4723(2)(C) (the AG cited it; current researchers should verify present-day law) gave the Director a four-year term, prevented removal at the Governor's pleasure, and required Senate confirmation. The AG read that section as consistent with, not displacing, the general appointment framework.

Background and statutory framework

The Maine Constitution's appointment clause, art. V, pt. 1, § 8, vests the Governor with the power to "nominate" and, "subject to confirmation as provided herein, appoint" most civil officers. The same section sketches the confirmation procedure: legislative committee review, referral to the Senate, and final action there subject to the Senate's authority to override a committee recommendation by a 2/3 vote. The procedural detail is in 3 M.R.S.A. § 151, which sets the 30-day committee deadline and 45-day Senate deadline.

5 M.R.S.A. § 6 attaches a qualification deadline at the back end: appointees must take the oath within 30 days of being commissioned. Nothing in either source attaches a deadline between confirmation and commissioning.

For the MSHA Director specifically, 30-A M.R.S.A. § 4723(2)(C) established a four-year term, removal only for cause, and confirmation by the Legislature. The AG treated that specific statute as fitting within the general scheme rather than displacing it.

Citations

• Me. Const. art. V, pt. 1, § 8 (Governor's appointment power and confirmation procedure)
• 3 M.R.S.A. § 151 (committee and Senate timing for nominations)
• 5 M.R.S.A. § 6 (qualification within 30 days of commissioning)
• 30-A M.R.S.A. § 4723(2)(C) (MSHA Director: four-year term, confirmation by Legislature)

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/1994/ag_19940329.pdf

Original opinion text

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

94-5

MICHAEL E. CARPENTER
ATTORNEY GENERAL

STATE OF MAINE
DEPARTMENT OF THE ATTORNEY GENERAL
STATE HOUSE STATION 6
AUGUSTA, MAINE 04333

March 29, 1994

Senator Rochelle M. Pingree
Representative Rita B. Melendy
Co-Chairs, Joint Standing Committee on Housing and Economic Development
State House Station #115
Augusta, ME 04333

Dear Senator Pingree and Representative Melendy:

I am writing in response to your inquiry of March 23, 1994, concerning the process by which Governor John R. McKernan, Jr. proposes to fill the vacancy in the office of Director of the Maine State Housing Authority being created by the resignation of the incumbent, Mr. Dwight Sewall, effective July 1, 1994. The Governor has recently nominated Mr. Sewall's successor, Mr. David Lakari, in order to permit the Legislature to pass upon the nomination during the current session of the Legislature, but proposes to delay the commissioning of Mr. Lakari, if confirmed, until Mr. Sewall has left office. For the reasons which follow, it is the Opinion of this Department that this procedure is consistent with the relevant constitutional and statutory provisions.

The procedure for filling a vacancy in an executive office under the Maine Constitution and statutes is as follows: Article V, Part First, Section 8 of the Maine Constitution provides that "The Governor shall nominate, and, subject to confirmation as provided herein, appoint ... all ... civil officers ... whose appointment is not by this Constitution, or shall not by law be otherwise provided for." Following such nomination, the section provides that the appropriate legislative committee shall review the nomination, and if a majority of members present and voting recommend confirmation, the nomination shall be referred to the Senate, where it shall be final unless the Senate by a vote of two-thirds members present and voting overrides the recommendation. 3 M.R.S.A. § 151 further provides that the committee vote on the nomination shall take place no later than 30 days from the date on which the Governor provides written notice of the nomination to the President of the Senate and the Speaker of the House of Representatives, and that the vote of the Senate shall take place no later than 45 days following such notice. The next stage in the process is for the Governor to "appoint," as provided in the Constitution, the officer. There is no constitutional or statutory provision specifying the time within which such "appointment" shall be made. The only remaining requirement is that 5 M.R.S.A. § 6 provides that "All public officers appointed ... shall, within 30 days after being commissioned, qualify to perform the duties of their office," meaning that they must take the oath of office within that time. In short, therefore, the process of filling Executive offices has four stages, nomination, confirmation, appointment (or commissioning) and qualification, and while there are statutory time limits for the confirmation and qualification stages, there is none for the appointment stage.

The statute governing the appointment of the Director of the Maine State Housing Authority is consistent with this scheme. 30-A M.R.S.A. § 4723(2)(C) provides that the Director shall serve a four-year term of office, not at the pleasure of the Governor, and that vacancies shall be filled by appointment by the Governor, subject to review by the Joint Standing Committee of the Legislature having jurisdiction over economic development, and the confirmation by the Legislature. Following this procedure, the Governor has nominated Mr. Lakari, and the nomination has been submitted to your Committee for a recommendation as to confirmation. If your Committee recommends that Mr. Lakari be confirmed, and the Senate does not override the recommendation, the next stage will be for the Governor to appoint (or commission) the nominee. As indicated above, there is no time limit within which the Governor must take this action. Consequently, he may wait until within 30 days of the effective date of Mr. Sewall's resignation to issue Mr. Lakari his commission, and Mr. Lakari may then qualify by taking the oath of office on the date on which the vacancy occurs.

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

Sincerely,

MICHAEL E. CARPENTER
Attorney General

MEC:sw

cc: Governor John R. McKernan, Jr.