Are Maine's constitutional officers, the Governor, Attorney General, Secretary of State, State Treasurer, State Auditor, and District Attorneys, entitled to the 50% state contribution toward dependent health insurance coverage that other state employees receive?

Plain-English summary

Commissioner of Administration Charles A. Morrison asked the Attorney General's office whether Maine's constitutional officers (the Governor, Attorney General, Secretary of State, State Treasurer, State Auditor, and District Attorneys) were entitled to the 50% state contribution toward dependent health insurance that classified employees and certain unclassified "confidential employees" received. Deputy AG Charles Howard answered no.

The analysis came in two layers. First, eligibility to participate in the State Employees Health Insurance Plan itself. Under 5 M.R.S.A. § 285(1)(A), "each appointed or elected officer or employee of the State who is eligible for membership in the Maine State Retirement System" was eligible for the group health insurance. 5 M.R.S.A. § 17652 made elected officials and officials appointed for a fixed term eligible for the Retirement System. The Governor (elected by popular vote) and the AG, Secretary of State, Treasurer, and Auditor (elected by the Legislature) qualified as "elected officials." District Attorneys qualified as "full-time officers of the State" under 30-A M.R.S.A. § 256. So all six categories of officers were eligible to participate in the health plan for themselves.

The 50% dependent-coverage contribution was a separate matter. Its history traced through a sequence of legislative enactments. In 1980, the Legislature first authorized an $8-per-month state contribution toward dependent coverage for classified service through P. & S.L. 1979, chs. 109 and 110, implementing collective bargaining agreements. P.L. 1980, ch. 739, § 8 extended that contribution to certain "confidential employees," defined by § 3 as employees in the Executive Branch excluded from bargaining units under paragraphs B, C, D, and H of 26 M.R.S.A. § 979-A(6). In 1981, P.L. 1981, ch. 453, § 12(5) expanded the contribution to 50% of dependent premiums, and the Legislature added paragraphs I and J to § 979-A(6) (the major-policy-influencing position categories), while shifting the reference list to B, C, D, I, and J.

To qualify for the 50% dependent-coverage benefit, an unclassified official had to fit within one of paragraphs B, C, D, I, or J of § 979-A(6). The six constitutional officers in Morrison's question did not fit any of them. Paragraph B addressed officials appointed for a fixed term by the Governor or by a department head (not popularly-elected or legislatively-elected officers). Paragraph C covered persons with a confidential relationship to the Governor or other executive official (not officers with independent constitutional standing). Paragraph D was limited to officials within the Executive Branch. Paragraph I covered "major policy-influencing positions" designated by Title 5, chapter 71, which did not include constitutional officers. Paragraph J was a catch-all for lower-ranking Executive Branch officials not covered by earlier paragraphs.

Howard inferred that the Legislature had implicitly excluded constitutional officers from the dependent-coverage benefit. Paragraph A of § 979-A(6) covered "persons elected by popular vote" and was conspicuously not on the list of paragraphs whose members qualified for the 50% contribution. That exclusion captured the Governor and the District Attorneys directly. The four officers elected by the Legislature (AG, Secretary of State, Treasurer, Auditor) did not fit paragraph A, but they also did not fit any other listed paragraph, and Howard concluded the closest category for them was paragraph A. The structural inference was that the Legislature intended the 50% benefit for classified employees and a defined subset of confidential Executive Branch employees, not for constitutional officers with their own statutory and constitutional compensation arrangements.

Howard added a footnote on dental coverage. The dental coverage was offered as an extension of the State Employees Health Insurance Plan, so all six categories of officers eligible for the health plan were also eligible for dental. Eligibility for the dental plan was different from eligibility for the 50% dependent contribution; the officers could enroll for themselves in dental, but not on subsidized terms for dependents.

Currency note

This opinion was issued in 1989. 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

Why does Maine distinguish 'classified' from 'unclassified' state employment?

Classified service positions are filled through the civil-service system based on merit, with bargaining rights and standard benefit packages. Unclassified positions are filled at gubernatorial or departmental discretion and include exempt categories like major-policy-influencing positions, statutory officers, and constitutional officers. Benefit eligibility tracks these categories. The 50% dependent-coverage contribution rolled out through collective bargaining and confidential-employee parity, leaving unclassified officers outside that framework unless specifically listed.

Why are some officers 'elected by popular vote' and others 'elected by the Legislature' in Maine?

Maine's constitution and statutes elect the Governor through popular vote, but the AG, Secretary of State, Treasurer, and Auditor are elected by the Legislature in joint session. District Attorneys are elected by popular vote within their prosecutorial districts. These different election methods reflect the framers' choices about how various offices should be accountable, but for benefits purposes the relevant statutes group officials by formal election method rather than by branch or function.

Could the Legislature have amended the statute to give constitutional officers the 50% benefit?

Yes, by amending § 979-A(6) to add a paragraph covering them, or by amending the benefit-eligibility provisions to reference paragraph A directly. The opinion notes the Legislature's choice to omit paragraph A from the eligibility list was treated as intentional under standard statutory construction. The Legislature could revisit that choice through ordinary legislation.

What is the practical effect of this opinion for the Attorney General himself?

AG Tierney was personally one of the officers whose dependent-coverage benefit was being analyzed. The opinion was authored by Deputy AG Charles Howard (chief of his Division) rather than Tierney himself, presumably to address the appearance of self-interest. The opinion's conclusion meant the AG was not eligible for the subsidized dependent coverage that the Bureau of Employee Relations had provided to classified state employees.

Background and statutory framework

Maine state employee health benefits in 1989 sat in a layered eligibility framework. Step one: are you eligible to participate in the State Employees Health Insurance Plan at all? Step two: which of several state-contribution subsidies apply to you? Step three: do you get the dependent-coverage benefit and at what percentage? The opinion walks Commissioner Morrison through all three steps for each category of constitutional officer. The result is a clean answer (no 50% dependent benefit) and a clean fallback (yes to self-coverage and dental). The opinion does not address whether the officers' separate compensation packages already include any private health benefit, which is a Bureau of Employee Relations rather than AG question.

Citations

• 5 M.R.S.A. § 285(1)(A) (Supp. 1988-89) (health plan eligibility)
• 5 M.R.S.A. § 17652 (Maine State Retirement System eligibility)
• 30-A M.R.S.A. § 256 (District Attorneys as full-time officers of the State)
• 26 M.R.S.A. § 979-A(6) (definition of state employee, paragraphs A through J)
• P. & S.L. 1979, chs. 109 and 110 (initial $8 dependent contribution for classified service)
• P.L. 1980, ch. 739, § 3 (definition of confidential employees)
• P.L. 1980, ch. 739, § 8 (extension of $8 contribution to confidential employees)
• P.L. 1981, ch. 381, § 3 (adding paragraphs I and J to § 979-A(6))
• P.L. 1981, ch. 453, § 12(5) (expansion to 50% contribution for confidential employees)

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/1989/ag_19890620a.pdf

Original opinion text

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

89-9

JAMES E. TIERNEY
ATTORNEY GENERAL

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

June 20, 1989

Charles A. Morrison
Commissioner of Administration
State House Station #74
Augusta, Maine 04333

Dear Commissioner Morrison:

You have inquired whether the Governor, the Attorney General, the Secretary of State, the State Treasurer, the State Auditor and the District Attorneys are entitled as a matter of law to the fifty percent state contribution toward dependent coverage in the Maine State Employees Health Insurance Plan currently available to classified employees and certain members of the unclassified service. For the reasons which follow, it is the opinion of this Department that these officials are not entitled to the contribution.

Eligibility for participation in the Maine State Employees Health Insurance Plan is governed by 5 M.R.S.A. § 285(1)(A), which provides that: "Each appointed or elected officer or employee of the State who is eligible for membership in the Maine State Retirement System ..." is eligible for group accident and sickness or health insurance. Elected officials and officials appointed for a fixed term are made eligible for membership in the Maine State Retirement System by 5 M.R.S.A. § 17652 (formerly 5 M.R.S.A. § 1091(1)). The Governor (as an official elected by direct popular vote) and the Attorney General, Secretary of State, State Treasurer, and State Auditor (as officials elected by the Legislature) clearly fall within this section since they are "elected officials." The District Attorneys are eligible for membership in the Maine State Retirement System pursuant to the same section and as a result of being defined as "full-time officers of the State," 30-A M.R.S.A. § 256 (formerly 30 M.R.S.A. § 454). Thus, all of the officials in question are eligible for participation in the Maine State Retirement System and therefore in the State Employees Health Insurance Program. The question thus becomes whether these officials are entitled to the State-paid fifty percent contribution if they elect to have their dependents covered under the State Employees Health Insurance Plan.

The answer to this question requires an examination of the history of State contribution to dependent health coverage. In 1980, the Legislature first provided for such a contribution for the classified service when it passed legislation implementing collective bargaining agreements which provided for State payment of $8 per month per employee toward the cost of dependent health insurance coverage. P. & S.L. 1979, ch. 109, 110. At the same time, the $8 contribution was extended to certain "confidential employees." P.L. 1980, ch. 739, § 8. Confidential employees were defined, for purposes of the Act, as "those within the Executive Branch who are excluded from bargaining units pursuant to the Maine Revised Statutes, Title 26, section 979-A, subsection 6, paragraph B, C, D and H." P.L. 1980, ch. 739, § 3. At the time, section 979-A(6) of Title 26 consisted of paragraphs A through H defining state employee exclusions.

In 1981, the Legislature expanded the state contribution to dependent health insurance coverage for confidential employees to 50 percent of the premium for such coverage. P.L. 1981, ch. 453, § 12(5). It also added two new categories of confidential employees eligible for this benefit by incorporating by reference two additions to the section 979-A(6) list which had been earlier added by the same session of the Legislature. Id., § 12, changing the reference to section 979-A(6) to paragraphs B, C, D, I and J, the last two of which were added by P.L. 1981, ch. 381, § 3. Paragraphs I and J read:

I. Who is appointed to a major policy-influencing position as designated by Title 5, chapter 71; or
J. Who substantially participates in the formulation and effectuation of policy in a department or agency or has a major role, other than a typically supervisory role, in the administration of a collective bargaining agreement in a department or agency.

In order to have qualified for the 50 percent contribution toward dependent health insurance coverage, therefore, the officials in question had to have fallen within one of paragraphs B, C, D, I or J of Section 979-A(6) of Title 26. It does not appear, however, that they fall within any of the enumerated paragraphs. Paragraph B is inapplicable because none of the officers are appointed to their respective offices by the Governor or other official in the Executive Branch. Paragraph C does not apply because none of the officials has any official relationship with the Governor or any other executive official. Paragraph D applies only to officials within the Executive Branch. None of the officials are included in the list of "major policy-influencing positions" referred to in paragraph I. Finally, none may be included in paragraph J, which is intended to apply to other lower ranking members of the Executive Branch not referred to in earlier paragraphs.

It thus appears clear that the Legislature did not intend to include the Governor, the Attorney General, the Secretary of State, the State Treasurer, the State Auditor and the District Attorneys in the group of unclassified officers eligible to receive contributions for dependent coverage under the Maine State Employees Health Insurance Plan. This conclusion is supported by the fact that the Legislature chose to exclude from the list of eligible persons those referred to in paragraph A of Section 979-A(6) of the State Employees Labor Relations Act. That paragraph refers to persons "elected by popular vote". The section thus clearly applies to the Governor and the District Attorneys. The other four officers which are the subject of your inquiry, however, are all elected by the Legislature and not by "popular" vote. Nonetheless, since these four officers do not appear to fit within any of the other categories in the list set forth in subsection 6, the Legislature must be regarded as having intended to exclude them from eligibility for the contribution, particularly since they more closely fit within the category of "elected by popular vote" than any other available alternative, and, as indicated above, are treated for other purposes as "elected officials." Consequently, it is the opinion of this Department that under current law none of the officials in question are eligible for the 50 percent State contribution toward dependent coverage under the Maine State Employees Health Insurance Plan.

You also inquired whether these officials are eligible to participate in the program relating to dental care for themselves, as opposed to their dependents. Since the dental coverage offered by the Maine State Employees Health Insurance Plan is simply an extension of the health insurance coverage offered by that Plan, it is clear that these officials may participate in it, since, as indicated above, they are eligible to participate in the health insurance plan themselves in the first place.

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

Sincerely,
Charles Howard
Deputy Attorney General
Chief, [Division]

CH/ec

cc: Governor John R. McKernan; G. William Diamond, Secretary of State; James E. Tierney, Attorney General; Samuel Shapiro, State Treasurer; Rodney L. Scribner, State Auditor; District Attorneys; Jo Gill, Exec. Dir., Employees Health Insurance Program