Can a Maine governor cut school aid using an ability-to-pay formula rather than a flat percentage when revenues fall short?

Plain-English summary

In July 2002, Maine faced a mid-biennium revenue shortfall, and Governor Angus King curtailed allotments to General Purpose Aid (GPA) for education. Two legislators asked the Attorney General whether the methodology the governor used satisfied state statute and legislative intent. Specifically, the curtailment of the foundation allocation subsidy was calculated using the same "ability to pay" weights that drive the regular school funding formula (85% property valuation, 15% income, per 20-A M.R.S.A. § 15657), while curtailments to the "adjustments" portion of GPA were applied as a flat 1.37%.

Attorney General G. Steven Rowe concluded that this approach was lawful. The curtailment statute, 5 M.R.S.A. § 1668, allows the governor to "temporarily curtail allotments equitably" when revenues fall short, and to do so "insofar as practicable" consistently with legislative intent. The AG read § 1668 as a temporary fiscal management tool that affords broad discretion. Because the ability-to-pay factors used in the curtailment were the same factors the Legislature itself uses to set the state share of the foundation allocation, the methodology aligned with legislative intent. The governor was also free, the AG said, to apply one reduction approach to the foundation allocation and a different one to the adjustments portion.

Currency note

This opinion was issued in 2002. 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 is "curtailment" in Maine state budgeting?

Curtailment is a temporary reduction in spending the governor can order when the state's Finance Commissioner reports that anticipated revenues will not cover authorized expenditures. It is not a cancellation or a line-item veto. Programs cannot be terminated through curtailment, and the Legislature retains the power to restore the cuts.

What did 5 M.R.S.A. § 1668 require the governor to do?

The statute required two things. First, the curtailment had to be "equitable," which the AG (citing Butterfield) read as allowing the governor to make priority choices rather than slashing every program by the same percentage. Second, curtailments had to be made "insofar as practicable" consistent with legislative intent.

Why did the legislators object?

They argued that 20-A M.R.S.A. § 15603-F and other school funding documents expressed a legislative preference for a "percentage reduction" approach, and that the governor should have applied a flat percentage cut to the foundation allocation rather than weighting the cut by local ability to pay.

Why did the AG reject that argument?

Because § 1668 itself does not lock the governor into any particular methodology. The AG read the statute as setting a standard (equitable, consistent with legislative intent) and leaving the method to executive discretion. Since the ability-to-pay weights mirrored the formula the Legislature uses for the underlying allocation, the AG saw no inconsistency with legislative intent.

What was the Butterfield case the opinion cites?

Butterfield v. Department of Human Services, CV-91-29 (Kenn. Cty., Jan. 17, 1991) (Alexander, J.), was an earlier Superior Court curtailment case. The AG cited it for a single proposition: that § 1668 is a temporary fiscal management device affording the governor broad discretion to act equitably and consistent with legislative intent. The opinion did not recount the facts of Butterfield beyond that citation.

Background and statutory framework

Title 5, § 1668 is the statutory tool that lets the executive bridge a mid-year revenue gap without waiting for the Legislature to reconvene. Once the Commissioner of Administrative and Financial Services reports a shortfall in writing to the Governor (with copies to the President of the Senate, the Speaker of the House, and the majority and minority leaders), the governor may temporarily curtail allotments. Curtailment cannot terminate a program, and the Legislature can restore any curtailed funds when it next acts on appropriations.

For General Purpose Aid, the underlying allocation formula at 20-A M.R.S.A. § 15657 already incorporates an 85/15 split between local property valuation and local income, intended to measure each district's ability to pay. By using those same weights in the curtailment, Governor King effectively scaled the cut to local fiscal capacity rather than imposing a flat across-the-board reduction.

Citations

• 5 M.R.S.A. § 1668 (governor's curtailment power)
• 20-A M.R.S.A. § 15657 (ability-to-pay factors in school funding formula)
• 20-A M.R.S.A. § 15603-F (school funding statute referenced by the requesting legislators)
• Butterfield v. Department of Human Services, CV-91-29 (Kenn. Cty., Jan. 17, 1991)

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/2002/ag_20020715.pdf

Original opinion text

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

02-3

STATE OF MAINE
OFFICE OF THE ATTORNEY GENERAL
6 State House Station
Augusta, Maine 04333-0006

G. Steven Rowe
Attorney General

July 15, 2002

Senator Michael F. Brennan
Maine State Senate
3 State House Station
Augusta, ME 04333-0003

Representative Glenn Cummings
Maine House of Representatives
2 State House Station
Augusta, ME 04333-0002

RE: Request for Advice on General Purpose Aid Curtailment Methodology

Dear Senator Brennan and Representative Cummings:

This letter is in response to your letter of June 28, 2002 requesting advice relating to the methodologies used by Governor King in allocating the curtailment of General Purpose Aid for fiscal year 2002-03. Specifically, you requested advice as to whether the methodologies employed by the Governor "satisfy both state statute and legislative intent." For the reasons set forth below, we believe that they do.

The Governor's allotment curtailment power is set out in 5 M.R.S.A. § 1668 (2002), which provides in pertinent part as follows:

Whenever it appears to the Commissioner of Administrative and Financial Services that the anticipated income and other available funds of the State will not be sufficient to meet the expenditures authorized by the Legislature, the commissioner shall so report in writing to the Governor, and shall send a copy of the report to the President of the Senate and the Speaker of the House and the majority and minority leaders of the Senate and House. After receiving the report, the Governor may temporarily curtail allotments equitably so that expenditures will not exceed the anticipated income and other available funds. No allotment may be terminated pursuant to this section. Any curtailment of allotments must, insofar as practicable, be made consistent with the intent of the Legislature in authorizing these expenditures.

In Commissioner Albanese's June 21, 2002 memorandum (referenced in your letter), the Commissioner explained that the methodology used to curtail the foundation allocation subsidy was designed to mirror the "ability to pay" provisions in the operating component of the school funding formula, that is a curtailment based on the 85% property-valuation and 15% income factors contained in 20-A M.R.S.A. § 15657. The Commissioner also explained, in his June 21 letter, that curtailments to the adjustments portion of the GPA allocation were made on a flat percentage basis, that percentage being 1.37%.

You have suggested that the school funding statute, 20-A M.R.S.A. § 15603-F, as well as other documents evidencing legislative intent, require the Governor to use the "percentage reduction" method, rather than the "ability to pay" method, in curtailing the foundation allocation. We believe that the Governor would have acted within the scope of his authority had he used the "percentage reduction" method in curtailing the foundation allocation. However, he was not required to use the percentage reduction method rather than the ability to pay method in establishing curtailments to the foundation allocation.

The curtailment statute, 5 M.R.S.A. § 1668, is, by its terms, a temporary fiscal management device. It affords the Governor broad discretion to act equitably and consistently with the intent of the Legislature in authorizing the expenditures. See Butterfield v. Department of Human Services, CV-91-29 (Kenn. Cty., Jan. 17, 1991) (Alexander, J). We believe that the methodology used by the Governor in curtailing the foundation allocation sufficiently meets section 1668's "Legislative intent" test because the "ability to pay" factors were the same as those used in initially determining the State share of the foundation allocation. Moreover, we believe the Governor acted within the scope of his authority in choosing to apply one reduction allocation methodology to the foundation allocation and another to adjustments.

To summarize, we conclude that the curtailment methodologies used by Governor King, methodologies based on formulas contained in the school funding statute, are consistent with the broad discretion afforded by section 5 M.R.S.A. § 1668 to act equitably and consistently with the intent of the Legislature in authorizing the expenditures.

Please let me know if we can be of any further assistance.

Sincerely,

G. STEVEN ROWE
Attorney General