Could DHHS build a new secure forensic 'step-down' psychiatric facility on state property without first getting legislative approval, just because the agency had funds in hand?

Plain-English summary

The LePage administration was planning a new secure forensic ("step-down") facility for patients adjudicated not criminally responsible by reason of insanity. The proposal first targeted the Riverview campus in Augusta, then shifted to a possible site in Bangor. Senator Katz and Representative Frey asked AG Mills three questions: did the administration need legislative authorization to build the facility, what was the scope of DHHS's authority over programming inside it, and could the Legislature impose additional oversight before occupancy?

On the first question, Mills said yes. Maine's separation-of-powers framework, traced through Sawyer v. Gilmore (1912) and Valente v. Board of Environmental Protection (1983), means executive agencies can only do what the Legislature has authorized them to do. There is no statute authorizing DHHS or the Bureau of General Services to build a secure forensic facility. Legislative authorization for new construction usually comes in three forms: a budget appropriation, a bond issue, or legislation approving a Maine Governmental Facilities Authority project. The opinion cited prior examples (P.L. 1999 ch. 731 part NNN authorized Riverview itself; P.L. 1997 ch. 788 § 4 authorized State House upgrades; P.L. 1985 ch. 122 authorized AMHI). The fact that DHHS already had carry-over funds in its SAMHS appropriations and consent-decree settlements did not change the analysis. Title 5 § 1581 requires "appropriations for the acquisition of property" to be detailed in the appropriations bill, § 1663 requires capital projects to be set forth in the budget, and § 1587 forbids agencies from entering lease-purchase agreements for buildings the State would ultimately own without "specific prior approval of the Legislature through the usual budget procedure." If the facility ended up in the Capitol Area (defined in 1 M.R.S. § 814), 5 M.R.S. § 304 required Legislative Council approval. Outside the Capitol Area, the full Legislature had to approve.

On the second question, the Commissioner of DHHS already had broad statutory authority to care for NCR patients in her custody under 15 M.R.S. § 103 and to contract with private providers under 22-A M.R.S. §§ 203(4) and 207(1). A "step-down" program at an intermediate level of care fell within that existing authority. So the construction question was the binding constraint, not the programming question.

On the third question, League of Women Voters v. Secretary of State (1996) confirms the Legislature's plenary authority to enact laws unless prohibited by the state or federal constitution. There were no legal impediments to additional oversight legislation before occupancy.

Currency note

This opinion was issued in 2017. 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.

The Riverview step-down facility debate was eventually resolved through legislation. Maine has continued to address forensic psychiatric capacity through subsequent budget cycles and litigation. Any current evaluation of executive construction authority should consult the present text of 5 M.R.S. ch. 142, the current Capitol Area statute, and any successor opinions.

Historical summary

For state agency administrators (at the time): The opinion emphasized that funds in an existing appropriation cannot substitute for explicit legislative authorization to build a new structure. Capital projects must run through the budget bill, a bond, or an MGFA authorization.

For state legislators (at the time): The opinion gave legislators a clean separation-of-powers basis to insist on legislative review of any executive construction proposal, and explicitly authorized additional oversight conditions before occupancy.

For separation-of-powers researchers: The opinion is a tidy application of Sawyer v. Gilmore and Valente to capital projects, and it lists footnoted statutory exceptions where specific land-management agencies do have construction authority (Bureau of Parks and Lands, Bureau of Forestry, Inland Fisheries and Wildlife, DOT, Adjutant General). The exceptions show how narrowly executive construction authority is granted in Maine.

Citations and references

Constitutional provisions:
- Maine Constitution, Article IV, Part 3, Section 1 (legislative plenary authority)

Statutes:
- 1 M.R.S. § 814 (Capitol Area definition)
- 5 M.R.S. § 304 (Legislative Council approval for Capitol Area construction)
- 5 M.R.S. § 1581 (capital appropriations detail)
- 5 M.R.S. § 1587 (lease-purchase prohibition without legislative approval)
- 5 M.R.S. § 1663 (capital projects in budget)
- 15 M.R.S. § 103 (DHHS custody of NCR patients)
- 22-A M.R.S. §§ 203(4), 207(1) (DHHS contracting authority)
- 12 M.R.S. §§ 1818, 1825, 1832, 1846, 1894; 12 M.R.S. § 8003(3)(M-1); 12 M.R.S. § 10109; 23 M.R.S. § 4210(3); 37-B M.R.S. § 302 (specific land-agency construction authorities)

Cases:
- Sawyer v. Gilmore, 109 Me. 169 (1912)
- Valente v. Board of Environmental Protection, 461 A.2d 716 (Me. 1983)
- League of Women Voters v. Secretary of State, 683 A.2d 769 (Me. 1996)

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/2017/ag_20170124.pdf

Original opinion text

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

STATE OF MAINE
OFFICE OF THE ATTORNEY GENERAL
6 STATE HOUSE STATION
AUGUSTA, MAINE 04333-0006
JANET T. MILLS, ATTORNEY GENERAL

January 24, 2017

The Honorable Roger Katz
Maine State Senate
3 State House Station
Augusta, ME 04333-0003

The Honorable Aaron Frey
Maine State House of Representatives
2 State House Station
Augusta, ME 04333-0002

RE: Riverview - Proposed Secure Forensic Facility

Dear Senator Katz and Representative Frey:

We cannot comment on the specifics of a proposal that is not clearly defined in writing, but we offer these general comments, not an official opinion, in response to your questions.

We were made aware of a proposal to build a secure forensic facility (more recently referred to as a "step-down" facility) on the grounds of the Riverview campus. We counseled the Administration that Title 5, section 304 expressly requires Legislative Council approval for the construction of a new building at that location since it is within the "Capitol Area" as defined by statute. See 1 M.R.S. § 814 and 5 M.R.S. § 304.

Now we are informed that the Administration is proposing to build this facility in another location, perhaps on state-owned property in Bangor.

Under the Maine Constitution, executive agencies have only that authority which is given to them by the Legislature. See, e.g., Sawyer v. Gilmore, 109 Me. 169, 180 (1912):

The authority of the executive and judicial departments is a grant. These departments can exercise only the powers enumerated in and conferred upon them by the Constitution and such as are necessarily implied therefrom. The powers of the Legislature in matters of legislation, broadly speaking, are absolute, except as restricted and limited by the Constitution. As to the executive and judiciary, the Constitution measures the extent of their authority, as to the Legislature it measures the limitations upon its authority.

See also Valente v. Board of Environmental Protection, 461 A.2d 716, 718 (Me. 1983) ("Administrative agencies are creatures of statute, and can only have such powers as those expressly conferred upon them by the Legislature, or such as arise therefrom by necessary implication to allow carrying out the powers accorded to them.").

We are unaware of any statute giving the Commissioner of Health and Human Services or the Bureau of General Services authority to build a secure forensic facility on state owned property in Augusta or Bangor.

Legislative authorization for new construction is typically granted in the form of a budget appropriation, bond issue or legislation approving a Maine Governmental Facilities Authority project. Examples include: P.L. 1999, ch. 731, part NNN (authorizing construction of the Riverview Psychiatric Center); P.L. 1997, ch. 788, § 4 (authorizing construction of the State House connector tunnel and significant renovations to other state buildings); and P.L. 1985, ch. 122, §§ 1 & 6 (bond issue for construction of activity building on AMHI campus). In these instances, the Legislature authorized construction and funding in the same act.

DHHS has indicated that it already has the funds necessary to construct this forensic facility, apparently from carry over funds in SAMHS and/or consent decree appropriations. We do not know the details and cannot comment on funding sources, except to say that even if DHHS has sufficient funds within existing appropriations, the agency is not exempt from obtaining legislative authority to construct a new building.

The statutes governing the budget and appropriations process require capital expenditures to be specifically identified in agencies' budget submissions and in legislative appropriations. See 5 M.R.S. § 1581 ("appropriations for the acquisition of property" are to be detailed in appropriations bill) and § 1663 (budget "shall set forth all expenditures for capital projects to be undertaken and executed during each fiscal year of the biennium"). Title 5, section 1587 expressly prohibits agencies from entering into "a lease-purchase or similar agreement whereby the State would become the ultimate owner of buildings . . . without specific prior approval of the Legislature through the usual budget procedure." For an example of such approval, see P.L. 1989, ch. 921, § E-2 (authorizing lease-purchase agreement for new Division of Motor Vehicles building). These provisions underscore the Legislature's role in approving the construction or acquisition of any capital asset that is going to be built or purchased and maintained with state funds.

In response to your first question, therefore, we believe that legislative authorization to construct the forensic facility is required, regardless of where it is built. If it is located next to the Riverview Psychiatric Center in the Capitol Area, Title 5, section 304 requires approval by the Legislative Council acting on behalf of the Legislature; outside that geographic area, approval of the full Legislature would appear to be required.

In response to your second question relating to programming at the facility, the Commissioner of DHHS has broad authority under existing statutes to care for the mentally ill who have been committed to her custody pursuant to a court order after being adjudicated as not criminally responsible by reason of insanity ("NCR"). See 15 M.R.S. § 103. See also 22-A M.R.S. §§ 203(4) & 207(1) (authority to contract with private agencies to deliver programs and services). The proposed "step-down" or secure forensic facility is apparently designed to provide an intermediate level of care to NCR patients—less intensive than hospital-level care but more restrictive than a community residence—but providing such a "program" does not appear to be outside the scope of DHHS's existing statutory authority under the legal principles outlined above.

In response to your third question, the answer is that there are no legal impediments to the Legislature passing a bill to require additional oversight over the operation of this forensic facility before the building is occupied. See Me. Const. art. IV, pt. 3, § 1; League of Women Voters v. Secretary of State, 683 A.2d 769, 771 (Me. 1996) (Legislature has plenary authority to enact laws unless expressly, or by necessary implication, prohibited by the Constitution of Maine or the United States).

(Footnote: Certain other agencies do have statutory authority to acquire and/or construct facilities. E.g., 12 M.R.S. §§ 1818, 1825, 1832, 1846 & 1894 (Bureau of Parks and Lands authorized to construct public campsites, recreation facilities and boat launches); 12 M.R.S. § 8003(3)(M-1) (Bureau of Forestry authorized to purchase or construct structures or purchase land on which to build structures); 12 M.R.S. § 10109 (Commissioner of Inland Fisheries and Wildlife may purchase land and erect buildings for operation of state game farms); 23 M.R.S. § 4210(3) (Department of Transportation may use Transportation Facilities Fund monies for construction of buildings, including permanent storage facilities, garages and field office buildings); 37-B M.R.S. § 302 ("Adjutant General may, with the approval of the Governor, erect armories and other necessary buildings").)

We trust this letter adequately responds to your inquiry. Please let us know if we can be of any further assistance in this matter.

Yours Very Truly,

Janet T. Mills
Attorney General