By Ryan Michaels | Editor-in-Chief, The Maine Mirror

BERWICK, Maine — Berwick Police Chief Timothy Towne is seeking election to the Maine House of Representatives while proposing to remain the town’s police chief if elected.

The Berwick Select Board has already unanimously approved a plan allowing Towne to pursue that dual role. But approval by the Select Board does not, by itself, answer a separate question:

What does Maine law say about one person simultaneously exercising the responsibilities of a police chief and a state legislator?

A review of Maine’s Constitution, statutes, Supreme Judicial Court decisions, Attorney General opinions and legislative ethics rules does not reveal a simple provision stating that a municipal police chief may—or may not—simultaneously serve in the Legislature.

What it does reveal is a collection of legal principles that make the question worthy of considerably closer examination.

Maine’s Constitution Specifically Prohibits Sheriffs

The most obvious starting point is the Maine Constitution itself.

Article IX, Section 2 is titled “Offices incompatible with each other.”

Among the officials expressly prohibited from being members of the Legislature are Maine’s “sheriffs or their deputies.”

Municipal police chiefs are not expressly included in that list.

That distinction matters. The Maine Mirror is not suggesting that the word “sheriff” can simply be replaced with “police chief.” They are legally distinct offices.

But the provision raises an unavoidable question: Why did Maine expressly prohibit sheriffs and their deputies from simultaneously serving as legislators, and do the principles underlying that prohibition have any application to another government official serving as the chief law-enforcement officer of a municipality?

(Maine Constitution, Article IX, Section 2. The constitutional provision titled “Offices incompatible with each other” expressly identifies “sheriffs or their deputies” among officeholders who may not be members of the Legislature.)

Maine Also Constitutionally Separates Governmental Powers

Article III of the Maine Constitution establishes another relevant principle.

Maine divides governmental power among three distinct departments: legislative, executive and judicial.

Section 2 then provides that a person belonging to one department generally may not exercise powers properly belonging to another, except where expressly permitted.

Whether and to what extent that constitutional separation-of-powers provision applies to the relationship between a municipal police chief and the Legislature is a legal question requiring careful analysis. The provision should not simply be assumed to prohibit Towne’s proposed arrangement.

But it adds another legitimate question to the discussion: Has anyone obtained a legal opinion addressing whether Towne’s simultaneous exercise of municipal law-enforcement authority and state legislative authority implicates Maine’s separation-of-powers principles?

(Maine Constitution, Article III, Sections 1 and 2. The Constitution divides governmental powers among the legislative, executive and judicial departments and generally requires those powers to be kept separate.)

Current Maine Ethics Law Directly Addresses Outside Employment

The inquiry does not end with constitutional provisions.

Maine’s current Legislative Ethics Law, 1 M.R.S. §1014, specifically addresses circumstances in which a legislator’s employment may create a conflict of interest.

Among the situations identified by the statute is one in which a legislator “accepts or engages in employment that could impair the Legislator’s judgment.”

The statute contains additional qualifications and circumstances governing when a conflict exists, and those limitations matter. The language does not establish that simply remaining employed as police chief would automatically place Towne in violation of Maine ethics law.

But it does establish something important:

Maine law expressly recognizes that a legislator’s outside employment can create a legislative conflict of interest.

(1 M.R.S. §1014, Maine’s current Legislative Ethics Law. The highlighted provision identifies employment that “could impair the Legislator’s judgment” as one circumstance relevant to a legislative conflict of interest.)

What Is a Sheriff Under Maine Law?

The constitutional reference to sheriffs becomes more interesting when compared with Maine’s statutory description of the office.

Under 30-A M.R.S. §401, the sheriff serves as the:

“chief county law enforcement officer.”

The sheriff is also responsible for administering and directing the sheriff’s department.

Again, that does not make a municipal police chief legally equivalent to a county sheriff. But it helps identify what kind of governmental office Maine’s Constitution expressly prevents from being simultaneously occupied by a legislator: the chief law-enforcement officer of a county.

That invites a fair question about the distinction Maine law draws between that position and the chief law-enforcement leadership of a municipality.

(30-A M.R.S. §401. Maine law identifies the sheriff as the “chief county law enforcement officer” responsible for administering and directing the sheriff’s department.)

Maine Law Places Police and Sheriffs in the Same Law-Enforcement Framework in Other Contexts

Another Maine statute provides useful context—although, again, it does not make the offices interchangeable.

Under 25 M.R.S. §1502, Maine law discusses the State Police, sheriffs, deputy sheriffs, constables, city marshals, deputy marshals and police officers of cities and towns together when requiring cooperation in detecting crime, arresting and prosecuting criminals and preserving law and order.

The statute separately describes certain State Police powers by reference to powers exercised by sheriffs.

The significance is limited but relevant: Maine law recognizes these as distinct offices while placing them within a shared law-enforcement system.

The question therefore isn’t whether a police chief can simply be called a sheriff.

The better question is whether the nature, authority and duties of Towne’s particular public office create an incompatibility or conflict when combined with legislative office.

(25 M.R.S. §1502. Maine law separately identifies State Police, sheriffs, deputy sheriffs and municipal police officers while requiring their cooperation in crime detection, arrests, prosecution and preservation of law and order.)

Maine’s Highest Court Has Addressed Incompatible Offices

Maine’s courts have dealt with the broader doctrine of incompatible public offices before.

In Lesieur v. Lausier, the Maine Supreme Judicial Court considered a case involving simultaneous governmental offices.

The Court explained the public-policy concern in striking terms: the public must know with certainty who possesses governmental power and authority.

Quoting earlier Maine precedent, the Court explained that where two offices are incompatible, both cannot be retained.

The case did not concern a police chief serving in the Legislature. It therefore cannot fairly be presented as deciding Towne’s situation.

What it does establish is that incompatible public offices are not merely a theoretical concern in Maine law.

(Maine Supreme Judicial Court, Lesieur v. Lausier (1953). The Court discusses the “need of the public to know with certainty” who possesses governmental power and explains the consequences when two public offices are legally incompatible.)

There is additional language in Lesieur discussing the possible sources of incompatible-office restrictions—including constitutional, statutory and common-law principles.

An important qualification is necessary here: the passage shown below appears in a dissenting opinion, rather than the Court’s majority holding. It therefore should not be presented as binding precedent by itself.

It is nevertheless relevant historical judicial reasoning when considered alongside Maine’s other authorities addressing common-law incompatibility.

(Dissenting opinion in Lesieur v. Lausier (1953). The passage discusses prohibitions against incompatible offices arising through the Constitution, statute or common law. This excerpt is from the dissent and is included as historical legal reasoning, not as the majority holding.)

A 1967 Maine Attorney General Opinion Went Further

Historical guidance from Maine’s Attorney General provides another piece of the puzzle.

In 1967, the Attorney General’s Office considered whether a member of the Legislature could simultaneously work on the administrative staff of the University of Maine.

The opinion concluded that the positions were incompatible under the constitutional provisions it analyzed.

Perhaps more revealing is the history cited in the opinion.

The Attorney General listed several previous combinations that had been found incompatible with legislative membership, including a Commissioner of Inland Fisheries and Game, a classified state employee, a legal adviser to the Portland Pier Directors and a member of the Real Estate Commission.

None of those positions is “sheriff.”

That history does not establish that Towne’s offices are incompatible. It does demonstrate that Maine authorities historically have examined incompatibility involving legislators in contexts extending beyond the specific offices enumerated in Article IX, Section 2.

(Maine Attorney General “Incompatibility of Office” opinion, July 24, 1967. The opinion addresses simultaneous legislative service and University of Maine employment and identifies several earlier Attorney General determinations finding other governmental positions incompatible with legislative membership.)

Maine’s Legislative Code of Ethics Is Even More Direct About Employment

Maine’s Legislative Code of Ethics articulates the underlying policy in straightforward terms.

It calls for the “reduction to a minimum” of conflicts between private interests and official duties.

It then states that Maine legislators will not accept employment that impairs their “independence and integrity of judgment.”

Again, the question isn’t whether being police chief automatically violates that standard.

The question is how that standard would operate when the legislator’s other employment is not an ordinary private-sector job, but another position carrying governmental authority and responsibility for law enforcement.

(Maine Legislative Code of Ethics. The code calls for minimizing conflicts between private interests and official duties and addresses employment that could impair a legislator’s independence and integrity of judgment.)

The Maine Ethics Commission Recognizes Employment Conflicts

The Maine Commission on Governmental Ethics and Election Practices provides current guidance explaining the same statutory framework.

The Commission identifies employment capable of impairing a legislator’s judgment as one circumstance that can create a conflict.

It also explains the consequence when an actual conflict exists: the legislator has an affirmative duty not to vote on the question connected with that conflict and may not attempt to influence its outcome.

That raises practical questions if Towne is elected.

Would legislation specifically affecting Berwick Police create a conflict?

What about legislation affecting municipal law enforcement more broadly?

Police funding?

Law-enforcement grants?

Training requirements?

Criminal procedure?

Municipal responsibilities?

Those questions cannot responsibly be answered in the abstract by simply declaring every police-related vote conflicted. Maine’s statutory standards have to be applied to the particular circumstances.

But they demonstrate why determining the boundaries before those circumstances arise could matter.

(Maine Commission on Governmental Ethics and Election Practices guidance on conflicts of interest. The Commission identifies employment that could impair legislative judgment and explains a legislator’s affirmative duty not to vote or influence a question when a conflict exists.)

A 1986 Attorney General Opinion Adds an Important Principle

Perhaps one of the most instructive historical documents comes from a January 30, 1986 memorandum issued by Assistant Attorney General William R. Stokes.

The question then was entirely different from Towne’s situation: whether a legislator could simultaneously serve as executive director of the Maine County Commissioners Association when a significant portion of that employment involved lobbying the Legislature.

The Attorney General’s Office acknowledged that there was no explicit statutory prohibition against a legislator acting as a lobbyist.

It nevertheless concluded that the arrangement presented a conflict based upon legislative conflict statutes, the Legislative Code of Ethics and general common-law principles.

The opinion emphasized that a public officer must exercise public responsibilities with “perfect fidelity.” More importantly for the present inquiry, it explained that applying common-law conflict principles requires examination of “the nature of the public office involved as well as the private employment in question.”

The opinion ultimately concluded that the legislator-lobbyist arrangement presented a conflict.

That conclusion does not answer the Towne question—the positions and circumstances are materially different.

But the method of analysis is significant: the Attorney General did not treat the absence of an explicit prohibition as necessarily ending the inquiry.

(PDF — 1986 Maine Attorney General memorandum, “Legislator-Lobbyist: Conflict of Interest,” all three pages. The opinion explains that the absence of an explicit prohibition did not end its conflict analysis and discusses statutory ethics requirements, the Legislative Code of Ethics and common-law principles requiring examination of the particular offices and employment involved.)

What This Does—and Does Not—Establish

Taken together, these authorities do not establish that Timothy Towne is legally prohibited from serving simultaneously as Berwick Police Chief and a member of the Maine House.

The Maine Mirror has not located a Maine court decision squarely deciding that particular combination of offices.

That distinction is critical.

But the opposite conclusion would also go beyond the evidence.

The absence of the words “police chief” from Article IX’s list does not, standing alone, answer every potential question involving common-law incompatibility, separation of governmental powers or legislative conflicts of interest.

Maine’s own historical authorities demonstrate why those are separate inquiries.

And that leads to what may be the most important question of all:

Was This Legal Analysis Done Before Berwick Approved the Plan?

Berwick’s Select Board has already unanimously approved Towne’s proposal to remain police chief while serving in Augusta if elected.

Towne’s own plan recognizes at least some potential conflicts by proposing legislative recusals involving matters specifically or uniquely affecting Berwick Police.

But acknowledging that individual conflicts could occur is different from answering whether the offices themselves are legally compatible.

It is also different from establishing exactly how Maine’s Legislative Ethics Law would apply to Towne’s continuing employment.

Before approving the arrangement, did Berwick obtain a written legal opinion addressing these questions?

Was Maine’s constitutional incompatible-offices provision analyzed?

Was Article III’s separation-of-powers provision considered?

Was Maine’s common-law incompatible-offices doctrine examined?

Were the historical Attorney General opinions reviewed?

Was the Maine Commission on Governmental Ethics and Election Practices consulted?

Has Towne requested—or does he intend to request—a formal advisory opinion concerning potential legislative conflicts arising from his continued employment as police chief?

And if legal analysis already exists answering those questions:

Where is it?

Those questions do not require assuming that Towne has violated anything.

They require something much simpler before one person potentially begins exercising substantial governmental authority in two different roles:

Determine what Maine law actually permits—and show the public how that determination was made.