AGO 2008-05.

Case DateNovember 17, 2008
CourtMaine
Maine Attorney General Opinions 2008. AGO 2008-05. 2008-05November 17, 2008The Honorable John E. Baldacci, Governor State of Maine State House Station #I Augusta, ME 04333-0001 Dear Governor Baldacci: You have asked whether a vacancy has been created by operation of law on the Androscoggin County Board of County Commissioners as the result of Commissioner Helen Poulin moving out of the district from which she was elected, even though she remains in the county. Ms. Poulin asserts that she intends to return to the district that elected her, and that therefore no vacancy has occurred. CONCLUSION While Maine courts have not addressed the issue directly, we believe that a court would conclude that a vacancy occurs when a county commissioner changes residence to another electoral division, even when he or she continues to reside in the county. The determination of whether a county commissioner has changed his or her residence to another electoral division or district is a fact-based one. Based on the facts made available to us and our interpretation of applicable statutes and case law, we believe that a court would likely conclude that Commissioner Poulin has vacated her office by removing herself from the district she was elected to represent. FACTS Helen Poulin represents District 3 on the Androscoggin Board of County Commissioners. According to an affidavit, dated September 22, 2008, and provided to your office by Ms. Poulin, she and her husband listed their home at 170 Ferry Road in Lewiston ("Lewiston home") for sale in July 2007. Poulin Affidavit ¶¶ 2, 10-11. Although the Poulins signed an agreement to purchase another house in Lewiston in July 2008, prior to the sale oftheir Lewiston home, that purchase was never effectuated. Id¶ 12-13. Upon the sale of their Lewiston home, the Poulins then purchased a home at 100 Vickery Road in Auburn ("Auburn home"). Id.¶ 14-15. Ms. Poulin further states in her affidavit that she intends to return to Lewiston and that her Auburn home is on the market. Id. ¶15.DISCUSSION A. Whether a Vacancy is Created When a County Commissioner Moves from The Electoral District While Continuing to Reside in the County. The qualifications ofmembers of a board ofcounty commissioners are specified in 30-A M.R.S.A. § 61 ("section 61"), which requires that "[e]ach ofthe commissioners ofa county must represent one ofthe commissioner districts established by law for the commissioner's county." In addition, section 61(I) states: "Members of each board ofcommissioners must be residents of the commissioner district which they represent and shall be elected by the voters ofthat district." These districts are subject to reapportionment every ten years "to establish as nearly as practicable equally populated districts." 30-A M.R.S.A. § 65. Thus a board ofcommissioners is made up ofthree to five members,(fn1) each ofwhom represents the distinct interests ofone district and is required to be a resident ofthat district. Also relevant is Title 21-A M.R.S.A. § 333 ("section 333"), which establishes the following residence requirement for all county officers:
A candidate for any county office must be a resident of and a voter in the electoral division he seeks to represent on the date established for filing primary petitions in the year he seeks election. He must maintain a voting residence in that electoral division during his term of office.
In the case of Ms. Poulin, an argument has been advanced on her behalfthat the requirement that she reside in the district from which she was elected does not continue for the duration ofthe commissioner's four year tenn. This argument is contradicted by the plain language of section 61 and that ofsection 333. In construing the language of a statute, the court looks first to the statute's plain language; absent ambiguity, the inquiry ends with the text ofthe statute. Pennings v. Pennings, 2002 ME 3, 786 A.2d 622 (2002), In this instance, section 61 (I) clearly and simply requires that commissioners must be residents ofthe commissioner district which they represent. This is not a temporal requirement that applies only at the moment of election, but one which by its terms applies to the "members" of each of the county commissioner boards. Section 333 expressly requires that a county officer must maintain a voting residence in her electoral division for her tenn of office. We have found only one Law Court decision addressing whether a vacancy was created by removal ofthe incumbent office holder from the district, and it is consistent with this conclusion. In State ex rel. Deering v. Harmon, 115 Me. 268 (1916), the Law Court held that a judge for the municipal court of Saco had abandoned his position by moving to Bangor and renting out his house in Saco, and that this abandonment ofhis office created a vacancy that the Governor and Council lawfully filled by a new appointment. While the statute governing the appointment expressly required that he "reside during the continuance in said office in said city of Saco," the Court's...

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