Could Baxter State Park run its remote cabin facilities at Daicey Pond and Kidney Pond using contractors instead of civil-service employees?

Plain-English summary

State Auditor Rodney Scribner wrote to Attorney General Michael Carpenter in January 1991 raising a concern about Baxter State Park's practice of using contractors, rather than civil-service employees, to operate the Daicey Pond and Kidney Pond cabin facilities. The Auditor's concerns: (1) the people running these facilities looked like Park employees (uniforms, similar duties, on Park premises, applying IRS employee criteria); (2) the Park was not withholding income tax; (3) the Park had told the Auditor it might expand this contracting practice. The Auditor wanted the AG to clarify whether these were really independent contractors or employees in everything but name.

Attorney General Carpenter sided with Baxter State Park. He affirmed the earlier conclusions of Assistant AG Paul Stern (Dec. 6, 1990) and Leslie D. Bloom of the Bureau of Employee Relations (Dec. 4, 1990): the contractors at Daicey Pond and Kidney Pond were not Park agents or representatives within the meaning of 12 M.R.S.A. § 904.

Section 904 requires that "agents and representatives of the Park" be hired pursuant to Civil Service Law. The AG read that to mean civil service applies when the Park hires employees. It does not, in its text, prohibit the Park from using contractors for appropriate functions. The Park's choice of staffing model is permitted where appropriate.

Why these facilities were appropriate for contracting: Kidney Pond's cabins had never historically been run by Park employees, having previously been leased to a private party until a recent policy change put them more directly under Park oversight (using a contractor model). Daicey Pond camps had been run by contractors for nearly a decade. No Park employees were displaced. The contractors had done a "magnificent job." The unique nature of the facilities, rental and upkeep of numerous cabins and diverse grounds, made independent operation appropriate.

The AG also responded to the Auditor's concern about expanded use. Park Director Caverly had told the AG's staff that the Park did not actually intend to use contractors beyond the existing Daicey Pond and Kidney Pond facilities, contrary to what Auditor Scribner had been told. The AG suggested that any specific future case be brought to the AG's office for guidance.

The classification question (employee vs. independent contractor) cannot be answered as a single bright-line rule. The AG identified "degree of employer control" as a vital factor and concluded that the substantial leeway given to the Daicey Pond and Kidney Pond contractors, and the relative lack of Park control over their day-to-day operations, supported the contractor classification.

Currency note

This opinion was issued in 1991. 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

Baxter State Park is unique within Maine state government. It was donated to the state by former Governor Percival Baxter, with deed restrictions requiring that the Park be maintained "forever wild" and in a wilderness state. The Baxter State Park Authority administers the Park under a special statutory scheme separate from the Department of Conservation.

12 M.R.S.A. § 904 requires "agents and representatives of the Park" to be hired through the Civil Service. This protects the integrity of Park staffing from political patronage and ensures uniform employment standards. The AG read § 904 narrowly: it applies when people are agents or representatives, not when they are independent contractors.

5 M.R.S.A. § 7032 governs personnel administration for state employees generally. Its applicability turns on the same classification question.

The IRS distinguishes employees from independent contractors using a multi-factor test, with control by the hiring party being the primary factor. The AG referenced this concept without adopting the IRS test wholesale. Maine's classification rests on its own statutes and case law.

Common questions

Why were the contractors wearing uniforms then?
The opinion does not address the uniform question directly. It treats the classification as turning on degree of control, not on appearance. A contractor who chooses to wear similar attire for customer-service reasons may still be a contractor.

Does this apply to other state parks?
No. The AG was explicit that Baxter State Park is unique within state government, and that the opinion's reasoning is not easily generalized. Other state parks are run by the Bureau of Parks and Lands and follow different statutes.

Could the Park expand contractor use to other functions?
The opinion does not authorize that. Park Director Caverly told the AG's staff that the Park did not intend to expand. If a specific new contracting arrangement came up, the AG indicated it should be brought to the AG's office for guidance on a case-by-case basis.

What if a contractor sued claiming employee status?
The opinion does not address that. AG opinions are advisory between state agencies. A private claim of misclassification would be litigated under separate doctrines (Title VII, FLSA, IRS rules, state wage-and-hour law), and the AG's reading of § 904 would not necessarily be controlling.

What's the takeaway for state-government contracting in general?
The opinion is a narrow read of one Park-specific statute. The general state-government rule, that employees be hired through civil service, is not displaced. The AG just said § 904 does not by itself bar the Park from using contractors for genuinely contractor-appropriate functions.

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/1991/ag_19910221.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

February 21, 1991

Rodney L. Scribner, CPA
State Auditor
Department of Audit
State House Station #66
Augusta, Maine 04333-0066

Dear Mr. Scribner:

I am in receipt of your letter of January 29, 1991, regarding Baxter State Park's practice of utilizing contractors at Kidney Pond and Daicey Pond facilities. I agree with the conclusions of Paul Stern in his letter of December 6, 1990, as well as those of Leslie D. Bloom at the Bureau of Employee Relations in a letter dated December 4, 1990.

In your letter, you indicate that the Park "intends to expand its use of this type of contract." My staff has informed me that in conversations with Park Director Caverly, he indicated quite clearly that the Park does not intend to utilize contractors for services beyond that which presently exist. With respect to the use of contractors for the Daicey Pond and Kidney Pond facilities, clearly that is permitted under 12 M.R.S.A. § 904.

Section 904 states that agents and representatives of the Park shall be hired pursuant to the Civil Service Law. In no way does section 904 prevent the Park from utilizing contractors where appropriate. The Kidney Pond and Daicey Pond facilities are unique in the Park; contemplating the rental and upkeep of numerous cabins and diverse grounds. The Park utilizes contractors there because this allows the Park to hire someone who can perform the varied numerous tasks to run the facilities without constant supervision.

Historically, Kidney Pond's cabins have never been run by Park employees. Kidney Pond cabins were leased to a private party until relatively recently. As a result of a policy change, this facility came more directly under the purview of the Park, with the Park utilizing a contractor rather than a lessee. Contractors have been used at Daicey Pond camps for nearly 10 years. No employees were replaced or laid off as a result of Daicey Pond camps going to contractors. Moreover, everyone agrees that the contractors at Daicey Pond have done a magnificent job.

You asked for specific guidelines in other areas. Because the Baxter State Authority is unique within State government, it is probably not productive to generalize based upon situations which exist at the Park. Further, each situation encountered has to be looked at on a case-by-case basis. The analysis includes many factors. For example, the degree of employer control is vital to determining whether an employer-employee or independent contractor relationship exists. Clearly, because of the enormous leeway and relative lack of control, we do not believe that the contractors at Daicey Pond or Kidney Pond are employees, i.e., agents or representatives under § 904. If you have a particular case you wish to present to us for our guidance, we would be happy to assist you.

I hope that this letter has been helpful to you.

Sincerely,

Michael E. Carpenter
Attorney General

MEC/tt

cc: Irvin C. Caverly, Jr., Director, Baxter State Park

[Attached: Letter dated January 29, 1991 from State Auditor Rodney L. Scribner, CPA, to the AG, raising the employee-versus-contractor question with respect to Daicey Pond cabin operations, noting that the contractors wear official uniforms similar to Park employees, are perceived as Park representatives, serve in a capacity similar to park rangers, work on Park premises, and appear to meet IRS employee criteria. The Auditor argued they should legally be Park employees and the contract relationship is a matter of form not substance. The letter attached the Paul Stern letter of December 6, 1990, 5 MRSA § 7032, 12 MRSA § 904, IRS Circular E Employer's Tax Guide, IRS Publication 937 Business Reporting, BSP Standard Operating Procedures Manual, and the form Contract for Special Services.]