from Legal Notes Archive Collection

Incompatible Offices
(from Maine Townsman, "Legal Notes," August 1987; updated February 2010)


Though the following article may be somewhat dated, it is still believed to include information that may be useful to the reader.


Question:In a small town, it's sometimes hard to find enough people to serve in the various elected or appointed positions in municipal government. Consequently people serve in one or more capacities, such as tax collector/treasurer/clerk. Are there any prohibitions against a person holding more than one office at the same time?

Answer:Yes. Local officials should be aware of the concept of "incompatible offices" which holds that a person serving in one office may not serve in certain other offices simultaneously because the duties of the offices conflict. In this context incompatible means that the nature of the duties of one office would prevent the office holder from discharging his or her duties in the other office with undivided loyalty. Incompatibility is often confused with "conflict of interest," but they are very different concepts. Whereas conflict of interest generally involves the placement of an official "in a situation of temptation to serve his own personal interest to the prejudice of the interests of those for whom the law authorized and required him to act . . . " (Lesieur v. Inhabitants of Rumford, 113 Me.317, (1915)), "incompatibility arises where the nature and duties of the two offices are such as to render it improper, from considerations of public policy, for one person to retain both." (Howard v. Harrington, 114 Me. 443, (1916)).

"Conflict of interest" involves a direct or indirect financial interest on the part of municipal officials. In contrast, incompatibility of office is concerned with an inconsistency in the function of two offices, as when one is subordinate to the other or where it is impossible to faithfully discharge the duties of both offices impartially. In short, a person cannot serve two masters or wear two hats that pull him/her in different directions.

While one can sometimes avoid a conflict of interest by abstaining from discussing and voting on an issue (see 30-A M.R.S.A. 2605(6)), one person cannot simultaneously hold two incompatible offices and avoid the problem by abstaining from decisions. An office holder who accepts and qualifies for a second office which is incompatible with the one already held automatically causes a vacancy in the former, as if it had been resigned; that is, the mere acceptance of the second incompatible office per se terminates the person's right to hold the first office as effectively as a resignation (Stubbs v. Lee, 64 Me. 195 (1814), Howard v. Harrington 114 Me. 443, (1916)).

Although the Legislature may specifically designate certain offices which may not be held simultaneously by the same person, incompatibility is generally a judicial question. There is no yardstick by which the rule prohibiting the holding of incompatible offices may be applied; each case must be judged on its own particular facts. Through the years, MMA legal staff has received inquiries regarding the compatibility of certain offices. The following is a list of offices about which the courts, the Attorney General, and the MMA legal staff have received inquiries and have rendered opinions about their incompatibility. Keep in mind that unless there is a specific prohibition in the State law or local charter or ordinance, only a court can declare that two positions are legally incompatible.

Selectmen

The following is a comprehensive, but not necessarily exhaustive, list of offices which a person is prohibited from holding while serving as a selectman, but each situation must be reviewed individually. Keep in mind the following conclusions may be different if the town operates under the Town Manager Plan or local charter and ordinance provisions provide otherwise.

Ballot Clerks: The authority to determine the results of a challenged election rests with the municipal officers. Recount challenge proceedings include supervising the ballot clerks during the recount. A municipal officer who is also serving as a ballot clerk would not be able to provide proper, impartial supervision (30-A M.R.S.A. 2531-A).

Clerk:A selectman may not serve as the town clerk. This is because of the close interrelationship between the duties of the selectmen and the clerk in the supervision of elections and the appointment of wardens with the approval of the municipal officers. Further, there are various statutes which require the selectmen to officially file documents with the clerk; if one person served in both capacities, it would be difficult to determine when this act took place.

Constable, Assistant Constable, Dog Control Officer, or other law enforcement officers: These offices are incompatible with that of selectman because the selectmen are responsible for hiring and firing law enforcement officials (30-A M.R.S.A. 2671 et seq.).

County Commissioner: State law prohibits a county commissioner from serving as a mayor or assessor of a city or as a selectman or assessor of a town (30-A M.R.S.A. 52).

Fire Chief/Assistant Fire Chief (30-A MRSA 3153): The decision of the fire chief or assistant is subject to the approval of the selectmen in the promulgation of administrative rules and regulations relating to municipal fire protection. The decisions of the fire chief and assistant are also subject to the approval of the selectmen in budget matters and expenditure of money. Also, the chief or assistant chief or assistant may be appointed, and subject to removal, by the selectmen, unless the town has provided otherwise (30-A M.R.S.A. 2601).

Building Inspector (30-A MRSA 4103): According to State law, a decision made by the building inspector can be appealed to the municipal officers. If a selectman is also the building inspector, an incompatibility would exist, since the person who issues the permit can't also serve as the appeal authority. This incompatibility would not exist if the town, by ordinance, has given a board of appeals the jurisdiction to hear appeals from the building inspector's decision (30-A M.R.S.A. 2691(4)).

Road Commissioner: The board of selectmen exercises a supervisory function in relation to a single road commission (30-A M.R.S.A. 2526(7)(B)). While a selectman may not act as the road commissioner, the board of selectmen may act as a board of road commissioners 30-A M.R.S.A. 2526(7)(C)).

Treasurer/Tax Collector: Selectmen and assessors may not serve as treasurers and tax collectors until they have completed their duties and had a final settlement with the town. The treasurer and tax collector may be the same person (30-A M.R.S.A. 2526(8)).

Town Manager: A Selectman may not serve simultaneously as town manager, nor may a selectman be appointed to fill a vacancy in the position of manager if the manager received salary increases during the selectman's term (30-A M.R.S.A. 2606, 2632). This latter prohibition continues for one year after the expiration of the selectman's term of office.

School Committee Member/SAD or RSU Director: The basic duties and interrelationship of selectmen and school committee members or SAD or RSU directors make these positions incompatible. For example, one person could not adequately represent both the municipality and an SAD in meeting to reconsider the methods of sharing costs and assessments (20-A M.R.S.A. 1301) or to dissolve a school union (20-A M.R.S.A. 2103). Further, state requires warrants for school-related referenda to be drawn up and signed by the school board, then submitted to the municipal officers for countersignature and posting. (20-A M.R.S.A. 1352, 1502). The intent is clearly that the same people will not be serving in both capacities.

Spouse of Selectman: Although being a spouse isn't holding an office, questions about spouses arise fairly frequently. It is permissible for the spouse of a selectman to serve as a member of the planning board, school committee, or as treasurer, tax collector, assessor or selectman. However, a spouse of a selectman may not serve on the board of appeals. 30-A M.R.S.A. 2691.

Miscellaneous Offices

The following is a list of other common positions about which questions of incompatibility have arisen.

Assessors

An assessor may not serve as a county commissioner, tax collector, treasurer or member of a school committee. Assessors may serve as selectmen, deputy sheriffs, and members of planning boards.

Clerks

A clerk may not serve as a selectman, moderator, or dog control officer. A clerk may serve as a tax collector and/or treasurer.

Manager

A manager may not serve as a selectman, moderator, assessor, or member of a school committee (30-A M.R.S.A. 2632).

Moderator

A moderator may not serve as an election official or clerk (30-A M.R.S.A. 2524(3), 2528(8), and should not be a candidate (21-A M.R.S.A. 504(3)).

Planning Board Member

A planning board member may not also serve as a member of the board of appeals if the appeals from the planning board decisions can be heard by the board of appeals.

Code Enforcement Officer

A code enforcement officer member may not also serve as a member of the board of appeals if the appeals from the planning board decisions can be heard by the board of appeals.

Other Appointer/Appointee Relationships

In general, it is an incompatibility of office for a person to serve in two offices where one office has the power of appointment, removal and supervision over the other. For instance, since the selectmen appoint, supervise, and can remove an appointed code enforcement officer or tax collector, a selectman could not serve in either of those offices.

Positions of Employment

The doctrine of incompatible offices applies to two or more offices, that is, positions which are appointed or elected and for which an oath of office is required. Therefore, it is not an incompatibility if a person holds a municipal office and is also a municipal employee. See Inhabitants of Town of Harpswell v. Wallace, CV-08-184 (Me. Super. Ct., Cum. Cty., May 16, 2008) (Cole, J.)

The opinions printed above are written with the intent to provide general guidance as to the treatment of issues or problems similar to those stated in the opinion. The reader is cautioned not to rely on the information contained therein as the sole basis for handling individual affairs but he/she should obtain further counsel and information in solving his/her own specific problems.