Can Maine's Senate President and House Speaker, by joint policy, deny lodging and meal reimbursement to legislators staying overnight before a session if they live within 75 miles of Augusta?

Plain-English summary

In February 1995, Senate President Jeffrey H. Butland and House Speaker Daniel A. Gwadosky issued a joint policy, "Rules Regarding Payment of Expenses During the Regular Session," that restricted the "night before" lodging-and-meal reimbursement to legislators with a round-trip distance of 150 miles or more (effectively, those living more than 75 miles from Augusta). For legislators who did meet that distance test, the policy reduced the meal allowance from the statutory $32 to $20. Senator John O'Dea asked the AG whether the policy was consistent with 3 M.R.S.A. § 2.

The AG said no. The third paragraph of § 2 entitled every member of the Senate and House to a $32 meal allowance and a $38 housing allowance for each day in attendance at sessions and for each day the member "occupies overnight accommodations away from home either immediately preceding or immediately following attendance at daily sessions." That language made the entitlement turn on a single fact: whether the legislator actually occupied overnight accommodations on the relevant day. Distance from Augusta was not part of the test, and the amounts ($32 and $38) were fixed by the statute.

The presiding officers had cited the ninth paragraph of § 2, which gives them authority "at all times, whether the Legislature be in session or not, [to] approve accounts and vouchers for payment." The AG read that as a verification power, letting them require documentation that an overnight stay actually occurred. It did not give them discretion to alter the substantive entitlement, the meal-allowance amount, or the underlying right to claim the night before a session.

The AG suggested the practical solution: if the presiding officers wanted the savings the policy would produce, they should amend § 2, either substantively (to add a distance test and change the meal amount) or to grant the presiding officers discretion in setting reimbursements.

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Verify the current text of 3 M.R.S.A. § 2 before relying on the specific $32 and $38 figures or the rule described here.

Common questions

What did the original statute entitle legislators to?

For each session day, each day of authorized non-session legislative business, and each "night before" or "night after" an actual overnight stay near Augusta, a Maine legislator was entitled to a $32 meal allowance and a $38 housing allowance, totaling $70 per day. The right to claim the night-before was framed simply by whether the legislator actually occupied overnight accommodations on that day.

What was the practical issue the presiding officers were trying to address?

Cost. The Senate President and Speaker noted "a concerted effort in recent years to reduce our overall level of spending." The 75-mile rule reflected their view that legislators living closer than that could reasonably drive to a 9 a.m. committee meeting without needing to stay overnight.

Did the presiding officers have any authority to police the night-before allowance?

Yes, but only verification authority. They could require documentation that the legislator actually stayed overnight. They could not deny the allowance to a legislator who in fact stayed overnight just because the legislator lived less than 75 miles away.

Could the presiding officers reduce the meal allowance?

No. The $32 figure was set by the statute. The presiding officers had no statutory authority to set it at $20 by policy.

What was the AG's recommended fix?

Amend 3 M.R.S.A. § 2. Either restructure the entitlement itself to align with the policy goals (e.g., add a distance test, lower the meal allowance), or amend the ninth paragraph to give the presiding officers explicit discretion to vary the terms in the interest of savings.

Background and statutory framework

The third paragraph of 3 M.R.S.A. § 2 (as it then read):

Each member of the Senate and House of Representatives shall be entitled to a meal allowance in the amount of $32 and a housing allowance in the amount of $38 for each day in attendance at sessions of the Legislature and for each day the member occupies overnight accommodations away from home either immediately preceding or immediately following attendance at daily sessions of the Legislature.

The ninth paragraph of § 2:

The President of the Senate or the Speaker of the House shall, at all times, whether the Legislature be in session or not, have the authority to approve accounts and vouchers for payment.

The presiding officers' February 17, 1995 policy ("Rules Regarding Payment of Expenses During the Regular Session"):

Only those legislators whose round trip is 150 miles or more may claim the "night before."

We will authorize reimbursement of $58 to those legislators who claim the "night before" ($38 lodging allowance and $20 for dinner).

The AG saw the policy as an attempt to legislate by joint memo, not an exercise of the limited "approve accounts and vouchers" verification authority.

Citations

• 3 M.R.S.A. § 2, third paragraph (per diem meal and housing allowance entitlement)
• 3 M.R.S.A. § 2, ninth paragraph (presiding officers' authority to approve accounts and vouchers)
• "Rules Regarding Payment of Expenses During the Regular Session," issued by Senate President Butland and Speaker Gwadosky, February 17, 1995

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/1995/ag_19950412.pdf

Original opinion text

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

95-2

ANDREW KETTERER
ATTORNEY GENERAL

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

April 12, 1995

Senator John J. O'Dea
Maine State Senate
State House Station #3
Augusta, ME 04333

Dear Senator O'Dea:

I am writing in response to your recent inquiry asking whether the action of the President of the Senate and the Speaker of the House in adopting a policy limiting the ability of legislators to receive reimbursement for expenses for lodging and meals on the day before a session of the Legislature is consistent with 3 M.R.S.A. § 2. For the reasons which follow, it is the Opinion of this Department that the policy adopted by the President and the Speaker is not consistent with the statute.

3 M.R.S.A. § 2, third paragraph, provides, in pertinent part:

Each member of the Senate and House of Representatives shall be entitled to a meal allowance in the amount of $32 and a housing allowance in the amount of $38 for each day in attendance at sessions of the Legislature and for each day the member occupies overnight accommodations away from home either immediately preceding or immediately following attendance at daily sessions of the Legislature.

The statute thus clearly contemplates that if a legislator actually occupies overnight accommodations on the day immediately preceding a session of the Legislature, the legislator is entitled to a housing allowance of $38 and a meal allowance of $32.

On February 17, 1995, the President of the Senate and the Speaker of the House issued a document entitled "Rules Regarding Payment of Expenses During the Regular Session" (copy attached) which included the following provisions:

Only those legislators whose round trip is 150 miles or more may claim the "night before."

The rationale for this rule is that legislators who live within 75 miles of Augusta can leave their home at a reasonable hour in the morning in order to reach the State House for a 9:00 a.m. committee meeting or work session.

We will authorize reimbursement of $58 to those legislators who claim the "night before" ($38 lodging allowance and $20 for dinner).

Thus the President and the Speaker indicated that, notwithstanding the provisions of 3 M.R.S.A. § 2, they would not authorize a meal and housing allowance for legislators actually staying overnight in Augusta the night before a legislative session if those legislators lived less than 75 miles from Augusta; and, for those legislators living farther than 75 miles from Augusta and actually staying overnight the night before a legislative session, a meal allowance of $20 rather than $32 would be authorized.

The first question which your inquiry raises is the authority of the President and the Speaker to issue such a policy. Presumably, the President and Speaker acted pursuant to the ninth paragraph of 3 M.R.S.A. § 2, which provides:

The President of the Senate or the Speaker of the House shall, at all times, whether the Legislature be in session or not, have the authority to approve accounts and vouchers for payment.

While this section clearly authorizes the President and Speaker to ensure that members of the Legislature making claims for reimbursement for overnight accommodations actually incurred overnight accommodation expenses, it does not appear to give the President or the Speaker the authority to alter the terms under which legislators are entitled to such reimbursement. Thus, if a legislator were to seek reimbursement for overnight accommodations the night before a legislative session, the President and the Speaker are authorized to require documentation of such overnight accommodation, but once such documentation has been provided, they have no discretion to alter the legislatively-mandated payment of $38 housing allowance and $32 meal allowance.

That being the case, the Speaker and the President were without authority to impose the provisions of the February 17, 1995 policy not only with regard to the amount of the meal allowance for legislators staying overnight the night before a legislative session, but also with regard to the distance which a member of the Legislature must travel in order to be entitled to a housing and meal allowance for that day. Consequently, if the President and the Speaker wish to achieve the financial savings to the State which their policy would realize, they should seek to amend 3 M.R.S.A. § 2, either to amend the specific provision relating to the meal and housing allowances in order to make it consistent with their policy, or to amend the provision relating to their authority to give them the discretion to vary the terms of the statute in the interest of saving money.

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

Sincerely,

ANDREW KETTERER
Attorney General

AK:sw

cc: President Jeffrey H. Butland
Speaker Dan A. Gwadosky
Representative Kyle W. Jones