What rules apply when a Maine legislative advisory council uses a university staffer for fundraising, and what records and gift-solicitation rules apply to the legislators on the council?

Plain-English summary

The Legislative Youth Advisory Council ("LYAC") was created by Maine statute as a legislative-branch advisory body. Its staff support was assigned by P.L. 2003, ch. 20, § F-3 to the Edmund S. Muskie School of Public Service at the University of Maine System. Representative Rosaire Paradis, the Council's co-chair, asked AG G. Steven Rowe a cluster of questions about how that staff-support arrangement worked legally, who had to fund what, who controlled what records, and what gift-solicitation rules applied to Council legislators who might want to help raise money.

The AG broke the questions into pieces. On staffing duties: the new language in 3 M.R.S.A. § 168-A(10) (added by P.L. 2003, ch. 20, § F-3, effective July 1, 2003) told the Muskie School to "provide funding and staff assistance to the council from within its existing budgeted resources or from grants received by the school for that purpose." The plain reading was that the Muskie School either absorbed the staffing cost out of its existing University budget or found grants to cover it. The Legislature did not appropriate new money for the Council's staffing.

On the Council's responsibility for Muskie's fundraising: none. The Council had no legal duty to oversee or direct any fundraising the Muskie School undertook to support the Council's work. The Council could request information or monitor those efforts if it wanted, but the obligation flowed from the Muskie School to the Legislature through the staffing directive, not from the Council to Muskie.

On public records: under 3 M.R.S.A. § 168-A(9), records "of the council" were public records under Maine's Freedom of Access Act ("FOAA"). The harder question was whether Muskie School fundraising records counted as Council records. The AG noted that FOAA's "public record" definition under 1 M.R.S.A. § 402(3) reaches very broadly to any matter in the custody of an agency or public official "received or prepared for use in connection with the transaction of public or governmental business." The University of Maine System is an "agency" under 20-A M.R.S.A. § 10903, and staff-assistance work to the Council was governmental business. So Muskie's fundraising and accounting records related to staffing the Council were likely public records. The AG punted the closer call to University Counsel because the University would be the agency with the actual custody and the immediate FOAA-compliance obligation.

On what happens if grants and existing budget weren't enough: the AG read the statute strictly. Muskie remained "obligated to assist the Council" even if the funding wasn't there. The phrase "existing budgeted resources" arguably included the University's overall annual appropriation, which the University could redistribute among its schools. Muskie could not just walk away.

On Council legislators participating in fundraising: this was the most technical part. A bare letter of support from the Council to Muskie for a grant application was probably fine. Active solicitation of contributions by individual Council legislators implicated two statutes: 1 M.R.S.A. § 1014, the legislative conflict-of-interest statute, and 17-A M.R.S.A. §§ 601-605, the Bribery and Corrupt Practices Act. Section 605(1) makes it a crime for a public servant to solicit or accept anything of value when the public servant knows or reasonably should know the donor's purpose is to influence the public servant's official duties. Section 1014(1)(B) makes it a conflict of interest for a legislator to accept gifts from persons affected by legislation under the same purpose test. The AG advised that even fundraising for a public entity (Muskie, on the Council's behalf) was not a free pass: Council legislators should still avoid solicitations from donors with business before the Legislature.

A noteworthy procedural detail: under 17-A M.R.S.A. § 2, a "public servant" includes anyone participating as an advisor or consultant in performing a governmental function. So the gift-solicitation restrictions reached all Council members, including non-legislators, not just the legislators on the Council.

Currency note

This opinion was issued in 2003. 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

Q: At the time of this opinion, was the Muskie School obligated to staff the Council even without funding?
A: Yes, per the AG's reading of 3 M.R.S.A. § 168-A(10). The statute said Muskie "shall provide" funding and staff from existing resources or grants. The AG took "existing budgeted resources" to include the University's overall annual appropriation, which Muskie could draw on through internal University reallocations. The Muskie School could not refuse to staff the Council on funding grounds alone.

Q: Could the Council itself accept private donations?
A: The opinion did not directly answer that, but the framing suggested caution. The Council was a creature of the Legislature with a defined statutory role. Its own ability to receive and spend private donations would depend on whether the underlying statute authorized that activity. As a practical matter, the AG's analysis ran fundraising through the Muskie School as the staff support provider rather than to the Council directly.

Q: Did the AG say that lobbying-affected donors are off-limits even for a public-purpose Council fundraiser?
A: Yes. The opinion noted that even when Council members would be soliciting donations "on behalf of a public entity, as opposed to for any personal gain, it might still be wise to avoid seeking contributions from any person who the Council member knows or reasonably should know is making the donation to influence the member in the performance of his or her duties." The statutes do not require personal benefit; the purpose-to-influence test catches gifts to entities the legislator is associated with.

Q: Are Muskie School records of fundraising activities public records?
A: The AG concluded that they likely were, under the broad sweep of 1 M.R.S.A. § 402(3), because the University is a state agency and fundraising to fulfill the Muskie staffing obligation is "transaction of public or governmental business." The opinion noted FOAA exceptions for "records that have been designated confidential by statute" and recommended consulting University Counsel on any specific record before disclosure.

Background and statutory framework

The Legislative Youth Advisory Council was created to give young Mainers a structured advisory voice to the Legislature on legislation affecting them. Its statute is 3 M.R.S.A. § 168-A, with subsection (10) addressing the Muskie School's staff-support role and subsection (9) addressing public records.

The Muskie School of Public Service is a unit of the University of Maine System. 20-A M.R.S.A. § 10903 designates the University as "an instrumentality and agency of the State." That state-agency designation matters here because it pulled the University, and the Muskie School with it, into the orbit of the Freedom of Access Act and the Bribery and Corrupt Practices Act for the work of staffing the Council.

The legislator-gift framework is in 1 M.R.S.A. § 1014 (legislative conflict of interest, with subsection (1)(B) targeting gifts from persons affected by legislation) and 17-A M.R.S.A. §§ 601-605 (Bribery and Corrupt Practices Act). Section 605(1) is the operative gift-restriction provision for legislators acting as public servants. Section 2 broadens "public servant" to include advisors and consultants, which is why non-legislator Council members were also covered.

The AG cited Opinion of the Attorney General #81-19 (concerning then-Senator Judy C. Kany and the Kennebec River Future Commission) as a prior example of the same advisory caution for legislators soliciting donations to a public commission. That opinion had reached a similar conclusion: solicitation by a legislator for a public-purpose commission was not flatly prohibited but had to honor the conflict-of-interest and bribery statutes.

Citations

• 3 M.R.S.A. § 168-A (Legislative Youth Advisory Council)
• 3 M.R.S.A. § 168-A(9) (Council records are public)
• 3 M.R.S.A. § 168-A(10), as amended by P.L. 2003, ch. 20, § F-3 (Muskie School staffing directive)
• 20-A M.R.S.A. § 10903 (University of Maine System as state agency)
• 1 M.R.S.A. § 402(3) (FOAA "public record" definition)
• 1 M.R.S.A. § 1014(1)(B) (legislative conflict of interest)
• 17-A M.R.S.A. § 2 (public servant definition)
• 17-A M.R.S.A. §§ 601-605 (Bribery and Corrupt Practices Act)
• 17-A M.R.S.A. § 605(1) (improper gifts to public servants)
• ME AG Opinion #81-19 (Senator Kany / Kennebec River Future Commission)

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/2003/ag_20030701.pdf

Original opinion text

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

STATE OF MAINE
OFFICE OF THE ATTORNEY GENERAL
G. STEVEN ROWE, ATTORNEY GENERAL
6 STATE HOUSE STATION
AUGUSTA, MAINE 04333-0006

July 1, 2003

Representative Rosaire Paradis
2 State House Station
Augusta, ME 04333-0002

RE: Legislative Youth Advisory Council and the Edmund S. Muskie School of Public Service

Dear Representative Paradis:

I am writing in response to your letter of May 30, 2003, requesting guidance on questions regarding any limitations or prohibitions that may apply to fundraising efforts by the Legislative Youth Advisory Council, which you co-chair, or its staff, the Edmund S. Muskie School of Public Service. Your letter listed a number of specific questions, and we will try to respond to them in order.

1.A. What are the legal responsibilities of the Council with respect to overseeing or directing fundraising activities conducted by the Muskie School in order to fund its statutory duties as staff to the Council?

Title 3 M.R.S.A. § 168-A(10), as amended by P.L. 2003, ch. 20, § F-3 (eff. July 1, 2003), directs the Edmund S. Muskie School of Public Service to "provide funding and staff assistance to the council from within its existing budgeted resources or from grants received by the school for that purpose." The language of this amendment to the Legislative Youth Advisory Council statute seems to provide a clear directive to the Muskie School to either absorb the cost of staffing your committee or to fund those staff costs on its own through grants. The Muskie School is a part of the University of Maine System, which is "an instrumentality and agency of the State" pursuant to 20-A M.R.S.A. § 10903, independent from the Council and the Legislature. The University of Maine System receives an annual appropriation from the Legislature, but the governing body of the University decides how to allocate those funds among the various campuses and schools within the system. The new language in subsection 168-A(10), enacted as part of the recent budget bill, indicates that the Legislature is not providing any additional funding to the University of Maine System, or to the Muskie School, for this specific purpose. It is up to the Muskie School and/or the University of Maine System, however, to decide whether to seek additional funding from outside sources for these purposes, and, if so, how to go about doing so. In any event, the Council would appear to have no legal responsibilities to oversee or direct any fundraising efforts that Muskie may choose to undertake. Of course the Council may request information from Muskie or otherwise monitor fundraising efforts should it choose to do so.

1.B. Are the records of Muskie's fundraising activities and any accounting records of funds received or expended as a result of those activities considered public records under the provisions of 3 M.R.S.A. § 168-A(9)?

Although this subsection of the Council's statute expressly provides that "all records of the council" are "public records" under the Freedom of Access Act, 1 M.R.S.A. § 402(3), it does not address the extent to which records of the Muskie School would be considered records of the Council. The Freedom of Access Act has very broad application by its own terms, however, and defines "public record" to include "any written, printed or graphic matter or any mechanical or electronic data compilation . . . that is in the possession or custody of an agency or public official of this State . . . and has been received or prepared for use in connection with the transaction of public or governmental business." 1 M.R.S.A. § 402(3). As noted above, the University of Maine System is an "agency" of the state, pursuant to 20-A M.R.S.A. § 10903, and providing funding and staff assistance to the Legislative Youth Advisory Council would be considered the transaction of public or governmental business. There are a number of exceptions to the definition of "public record" listed in the Freedom of Access Act, including "records that have been designated confidential by statute." We are not aware of any specific statute that would make grant writing or other fundraising activities of the schools at the University confidential, but that question perhaps should be posed to the University Counsel's Office as the legal advisors to the schools and campuses within the University of Maine System.

2. What is the legal position of the Muskie School if outside funding is not available to pay for their staffing support to the Council? Does the statutory provision that directs Muskie to staff the Council compel the Muskie School to staff the Council even if that means absorbing those costs within existing budget resources of the Muskie School or the University of Maine System?

Once again, questions as to the legal position of the Muskie School would best be addressed to its own legal counsel. Our reading of the plain language of 3 M.R.S.A. § 168-A(10), as noted above, is that it directs the Muskie School to provide staff assistance to the Council "from within its existing budgeted resources or from grants." The reference to "existing budgeted resources" could include the University's annual appropriation from the Legislature since that is a general appropriation which the University has authority to allocate among the schools and campuses within the system. If those resources are not sufficient and/or grants are not forthcoming, the Muskie School nonetheless would appear to remain obligated to assist the Council.

3. Can the Council itself participate in fundraising activities in order to secure funding to allow the Council to function as required by statute? If so, what prohibitions or limitations would apply to the Council or its legislative members with respect to those activities?

The answer to this question depends, in part, on the nature of the fundraising activities you are contemplating. If the Council wishes to provide a general letter of support to the Muskie School for inclusion in one or more grant applications to support the work of the Council, for example, that would seem to be permissible. If, on the other hand, individual Council members wish to solicit contributions to the Muskie School to support staff work for the Council, they should be mindful of the restrictions on solicitation by legislators set forth in the conflict of interest statute, 1 M.R.S.A. § 1014, as well as the Bribery and Corrupt Practices Act, 17-A M.R.S.A. §§ 601-605. Even though the Council members, in this circumstance, would be soliciting donations on behalf of a public entity, as opposed to for any personal gain, it might still be wise to avoid seeking contributions from any person who the Council member knows or reasonably should know is making the donation to influence the member in the performance of his or her duties. A "public servant" includes any person participating as an advisor or consultant in performing a governmental function and, thus, could include all members of the Council, not just legislators. 17-A M.R.S.A. § 2.

I hope this information is helpful to you. If you have additional questions or need further clarification, please let us know.

Sincerely,

G. STEVEN ROWE
ATTORNEY GENERAL

[Footnote 1: 17-A M.R.S.A. § 605(1) provides, in pertinent part: 1. A person is guilty of improper gifts to public servants if: A. Being a public servant that person solicits, accepts or agrees to accept any pecuniary benefit from a person if the public servant knows or reasonably should know that the purpose of the donor in making the gift is to influence the public servant in the performance of the public servant's official duties or vote, or is intended as a reward for action on the part of the public servant.]

[Footnote 2: 1 M.R.S.A. § 1014(1)(B) makes it a conflict of interest for a legislator to accept gifts "from persons affected by legislation or who have an interest in a business affected by proposed legislation, where it is known or reasonably should be known that the purpose of the donor in making the gift is to influence the Legislator in the performance of his official duties or vote, or is intended as a reward for action on his part." See Opinion of the Attorney General #81-19 (recommending to then Senator Judy C. Kany that she exercise similar caution in soliciting donations to the Kennebec River Future Commission).]