Can Maine's Governor appoint a legislator-elect to an executive office before that person is sworn in to the Legislature?

Plain-English summary

Outgoing Attorney General James Tierney wrote to Senate President Charles Pray and House Speaker John Martin to confirm earlier informal advice his office had given on a recurring transition-period question.

The question: can Governor McKernan appoint a person to executive office between the time that person is elected to the Maine Senate or House and the time that person actually takes the legislative oath? In other words, can a winner of a November legislative election skip the legislative seat and accept a January executive appointment instead, even if the executive office was created or had its emoluments increased during the term for which the person was just elected?

The AG said yes.

The textual hook is Maine Constitution Article IV, Part 3, Section 10, which prohibits Senators and Representatives "during the term for which the Senator or Representative shall have been elected" from being appointed to civil offices that (1) require legislative approval, (2) were created during the term, or (3) had their emoluments increased during the term, except offices filled by popular election. This is Maine's version of the federal Emoluments / Incompatibility Clause (U.S. Const. art. I, § 6).

Tierney found no Maine Supreme Judicial Court or AG precedent directly interpreting the timing question under § 10. He turned to federal authority on the parallel federal provision. The leading citation is a U.S. Attorney General opinion from 1874 (14 Op. Att'y Gen. 406, 408) holding that "a Representative in Congress, in my opinion, does not become a member of the House until he takes the oath of office as such Representative; therefore he may lawfully hold any office from his election until that time." Atkins v. United States, 556 F.2d 1028, 1070 (Ct. Cl. 1977), cited Joseph Story's Commentaries on the Constitution (1833) for the policy rationale: the clause exists to prevent "improper bias in the vote of the Representative." A person who has not yet voted, indeed has not yet been sworn, cannot have his vote improperly biased.

Applied to Maine: a legislator-elect who has not yet taken the oath has not yet "assumed his or her seat," and the § 10 bar does not yet attach. The Governor may appoint such a person. The person can then decline the legislative seat. A vacancy is created in the legislative seat, which is filled by the normal vacancy procedures.

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.

Background and statutory framework

Maine Constitution Article IV, Part 3, Section 10 is the state's incompatibility / "emoluments" clause for legislators. The federal analogue is Article I, Section 6, Clause 2 of the U.S. Constitution. The federal clause has been read narrowly by Attorneys General throughout U.S. history: it bars sitting legislators from accepting newly-created or newly-paid offices, but does not bar legislators-elect who have not yet been sworn.

The opinion connects to a related Maine question: when does someone become a legislator? The AG's answer: at the oath. The same principle underlies Maine's separate requirement that all officers under the state must take the constitutional oath at Article IX, § 1 before discharging duties, addressed in the contemporaneous opinion at [[1991-04-09-oath-requirements-for-legislators-appointed-to-the-special-c]].

For the policy concern, Joseph Story's 1833 Commentaries gives the original federal rationale: prevent self-dealing and protect the integrity of legislative voting from the lure of executive appointment. Where the legislator has not yet voted, there is nothing to corrupt.

Common questions

What about offices that don't require legislative confirmation and weren't created during the term?
Those fall outside § 10 altogether, even after the legislator is sworn. Section 10 only reaches offices in three specific categories.

What if the elected person changed their mind after taking the oath?
Once sworn, § 10 attaches. The legislator could resign and accept an executive appointment, but if the executive office falls in one of the § 10 categories, the appointment would be barred during the unfinished term for which the legislator was elected.

Does this affect the parallel federal rule for U.S. Senate or House?
No. The AG's opinion interprets Maine's constitution. The federal rule is governed by U.S. Const. art. I, § 6, which has been independently interpreted by federal officials and courts.

Could the Legislature change this rule?
No. Section 10 is a constitutional provision. A change would require a constitutional amendment.

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/1990/ag_19901227.pdf

Original opinion text

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

State of Maine
Department of the Attorney General
State House Station 6
Augusta, Maine 04333

December 27, 1990

Senator Charles P. Pray
President, Maine Senate
State House Station #3
Augusta, ME 04333

Representative John L. Martin
Speaker, Maine House of Representatives
State House Station #2
Augusta, ME 04333

Dear President Pray and Speaker Martin:

I am writing to confirm advice which was rendered by this Department earlier this year concerning the power under the Maine Constitution of the Governor to appoint to executive office a person who has been elected to the Senate or House of Representatives, but before that person assumes his or her seat. For the reasons which follow, it is the Opinion of this Department that the Governor may make such appointments.

The appointment of members of the Legislature to the executive branch is governed by Article IV, Part 3, Section 10 of the Maine Constitution, which provides:

No Senator or Representative shall, during the term for which the Senator or Representative shall have been elected, be appointed to any civil office of profit under this State, which requires the approval of the Legislature for appointment or which shall have been created, or the emoluments of which increased during such term, except such offices as may be filled by elections by the people.

It does not appear that this section has been the subject of any interpretation with regard to the question posed either by the Supreme Judicial Court or this Department. There is, however, some authority bearing on the question deriving from a similar provision of the United States Constitution. Article I, Section 6, Paragraph 2 of that document provides, in pertinent part:

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time;

The reason for the inclusion of this provision in the Federal Constitution was "to take away, as far as possible, any improper bias in the vote of the Representative, and to secure to the constituents some solemn pledge of his disinterestedness." J. Story, Commentaries on the Constitution of the United States, § 864 (1833). See also Atkins v. United States, 556 F.2d 1028, 1070 (Ct. Cl. 1977). Thus, it would appear that, so long as a prospective Senator or Representative had not actually assumed his or her seat, there would be no barrier to his or her appointment to executive office, since the person in question would not be susceptible to having his or her legislative actions influenced by the possibility of appointment. The Attorney General of the United States reached this conclusion in 1874 when he ruled that "a Representative in Congress, in my opinion, does not become a member of the House until he takes the oath of office as such Representative; therefore he may lawfully hold any office from his election until that time." 14 Op. Att'y Gen. 406, 408 (1874). Consequently, there is no constitutional impediment to a newly elected Senator or Representative assuming executive office and simply declining to assume the legislative office for which he or she had been elected.

I hope the foregoing makes clear the view of this Department on this important constitutional question. Please feel free to reinquire if further clarification is necessary.

Sincerely,

James E. Tierney
Attorney General

JET/ec

cc: Governor John R. McKernan