If the Maine Legislature removes a position from the unclassified service in one statute but forgets to amend another statute that lists the same position as unclassified, which one controls?

Plain-English summary

Senator Beverly M. Bustin, chair of the Joint Standing Committee on Audit and Program Review, asked AG James E. Tierney a clean statutory-construction puzzle. The 114th Legislature, in its Second Regular Session, had enacted P.L. 1989 ch. 857, the omnibus Sunset Act review of various agencies. Section 25 of that act amended 5 M.R.S.A. § 1885(2) to repeal the clause specifying that any assistant to the Deputy Commissioner of Administration "shall be in the unclassified service." The accompanying L.D. 2427 Statement of Fact made the intent explicit: the amendment "takes the position of Assistant to the Deputy Commissioner of the Office of Information Services out of the unclassified service." But the Legislature had also left in place a second statute, 5 M.R.S.A. § 947-A(1)(F), which still listed "Assistant Deputy Commissioners" of Administration among the "major policy-influencing positions" that 5 M.R.S.A. § 931 et seq. assigned to the unclassified service. Tierney concluded that the newer enactment controlled. The classic rule from Sutherland on statutory construction, that an irreconcilable conflict between a new provision and prior statutes is resolved in favor of the new provision as the later expression of the Legislature, did the work. Otherwise the Legislature's clear intent to reclassify the position would have been nullified by its own housekeeping oversight. Tierney recommended that an errors bill at the next session amend § 947-A(1)(F) to remove the inconsistency.

Currency note

This opinion was issued in 1990. 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 the difference between "classified" and "unclassified" service in Maine state employment?

Classified positions are filled under the merit-based civil service rules administered through Title 5 of the Maine Revised Statutes. Unclassified positions are policy-influencing, confidential, or otherwise exempt from those rules and are typically appointed at the discretion of the agency head or governor.

Why did the Legislature use two different statutes to designate the same position?

The 1990 unclassified-service framework had two layers. Section 1885(2) sat within the Department of Administration's own organic statute and specifically itemized which positions in that department were unclassified. Section 947-A(1)(F) sat within the broader "major policy-influencing positions" framework of § 931 et seq., which collected unclassified positions from across state government into one master list. The duplicate listing reflected the redundancy of those two layers, not a deliberate cross-check.

What was Sutherland on Statutory Construction, and why did it carry weight here?

Sutherland's Statutes and Statutory Construction is a long-standing treatise frequently cited by courts and AGs as a summary of accepted statutory-interpretation principles. AG Tierney quoted § 51.02 (4th ed. 1984), which states that an irreconcilable conflict between a new provision and prior statutes is resolved by treating the new provision as the later expression of the Legislature.

Did Tierney suggest a permanent fix?

Yes. He recommended that the Revisor of Statutes propose an errors-bill amendment to § 947-A(1)(F) at the next legislative session to eliminate the conflicting reference.

Background and statutory framework

The Maine Sunset Act required periodic legislative justification of state agencies. The Department of Administration came up for review in the 114th Legislature, and P.L. 1989 ch. 857 carried the resulting structural changes. Section 25 of that act addressed the unclassified-service status of an "assistant to the deputy commissioner" of the Office of Information Services. The Statement of Fact attached to L.D. 2427 made the intent clear, but the parallel list in § 947-A(1)(F) was not amended in the same bill. The opinion treats the omission as a drafting oversight and applies the standard rule that the later, express action of the Legislature controls.

Citations

• 5 M.R.S.A. § 1885(2) (1990) (Department of Administration unclassified positions, as amended by P.L. 1989 ch. 857 § 25)
• 5 M.R.S.A. § 931 et seq. (1990) (major policy-influencing positions in the unclassified service)
• 5 M.R.S.A. § 947-A(1)(F) (1990) (Assistant Deputy Commissioners of Administration, leftover unclassified reference)
• P.L. 1989 ch. 857 (114th Legis. Second Reg. Sess.) (Sunset Act review of Department of Administration)
• L.D. 2427, Statement of Fact § 27 (114th Legis. 1990)
• 2A Sutherland, Statutory Construction § 51.02 (4th ed. 1984)

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/1990/ag_19900921.pdf

Original opinion text

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

JAMES E. TIERNEY
ATTORNEY GENERAL

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

September 21, 1990

Honorable Beverly M. Bustin
Chair, Joint Standing Committee on Audit and Program Review
State House Station #5
Augusta, ME 04333

Dear Senator Bustin:

I am writing in response to your inquiry whether legal effect should be given to an amendment to the statutes relating to the Department of Administration enacted by the Legislature at its 1990 Session removing the position of Assistant to the Deputy Commissioner of Administration for Information Services from the unclassified service, in view of the Legislature's failure to simultaneously remove that position from another statute which includes the position within a list of unclassified positions. For the reasons which follow, it is the opinion of this Department that the position should be regarded as classified.

At its Second Regular Session, the 114th Legislature enacted Chapter 857, "AN ACT Relating to Periodic Justification of Departments and Agencies of State Government Under the Maine Sunset Act," a statute which made numerous changes to the laws governing certain state agencies which were receiving periodic review by the Legislature. One of these agencies was the Department of Administration, and among the changes to that Department's statutes was section 25 of the Act which amended 5 M.R.S.A. § 1885(2) by repealing a clause which specified "that any assistant to the deputy commissioner shall be in the unclassified service." The Statement of Fact accompanying the bill which resulted in this enactment provided that the amendment in question "takes the position of Assistant to the Deputy Commissioner of the Office of Information Services out of the unclassified service." L.D. 2427, Statement of Fact, § 27 (114th Legis. 1990). Thus, it is clear that, through this enactment, the Legislature intended that the office in question be appointed in accordance with the civil service law.

The problem which your question presents derives from the fact that in another part of the statutes, the Legislature has set forth a list of positions in state government, denominated "major policy-influencing positions," which are made part of the unclassified service. 5 M.R.S.A. § 931 et seq. In the section of those statutes relating to the Department of Administration, the position of "Assistant Deputy Commissioners" appears in the list of major policy-influencing positions. 5 M.R.S.A. § 947-A(1)(F). In Chapter 857, the Legislature failed to amend this section to exclude from it the position of Assistant to the Deputy Commissioner of the Office of Information Services. Thus, you inquire whether its failure to do so would negate the effect of its amendment to Section 1885(2).

In the opinion of this Department, that failure would not negate the effect of the amendment to Section 1885. The problem of an inconsistency between a newly-enacted statute and prior statutes is a common one in the field of statutory interpretation, and is squarely resolved by the principle that "If there is an irreconcilable conflict between the new provision and the prior statutes, the new provision will control as it is the later expression of the legislature." 2A Sutherland, Statutory Construction, § 51.02 (4th ed. 1984). Thus, the fact that the Legislature has failed to bring other statutes into conformity with a new enactment will not destroy the effectiveness of the new enactment. Indeed, any other result would render nugatory the Legislature's clear intention, in this case, to remove a particular position from the unclassified service. This Department would suggest, however, that an appropriate amendment be introduced to Section 947-A(1)(F) at the next session of the Legislature, perhaps in an errors bill, to eliminate the inconsistency. Nonetheless, the existence of that inconsistency does not render ineffective the more recent action of the Legislature.

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

Sincerely,
JAMES E. TIERNEY
Attorney General

JET:SW

cc: Representative Neil Rolde, Chair, Joint Standing Committee on Audit and Program Review; Nancy J. Kenniston, Commissioner of Administration; H. Sawin Millett, Commissioner of Finance; John David Kennedy, Revisor of Statutes