AGO 2012-02.

• Case Date: February 10, 2012
• Court: Maine

Maine Attorney General Opinions 2012. AGO 2012-02. February 10, 20122012-02Representative Mark Dion 2 State House Station Augusta, Maine 04333-0002Dear Representative Dion: I am "writing in response to your letters of January 17, 2012 and January 30, 2012, in which you inquired whether the State Treasurer has engaged in "any business of trade or commerce" within the meaning of the Maine Constitution, art. V, pt. 3, § 3 ("Section 3"). Your question focuses on the Treasurer's ownership of the Popham Beach Club located in Phippsburg, Maine.(fn1) Subsequent to our receipt of 3'our letters, we became aware that a similar question has been raised concerning the Treasurer's real estate development activities through his company Dirigo Holdings, LLC. There is very little guidance concerning the proper application of Section 3. The Maine courts have never addressed it. The two Attorney General opinions that have been issued consider the broad question of what is prohibited by Section 3 but do not apply it to any actual fact pattern. The United States Attorney General issued an opinion in 1929 in which he concluded that Secretary of the Treasury Andrew Mellon's ownership of stock was not in violation of a federal statute with language very similar to that of Section 3, but there do not appear to be any subsequent opinions or any judicial analysis of this language. 36 U.S. Op. Arty. Gen. 12 (April 18, 1929). As a result, it is difficult to predict how a court would address the question before us. The federal authority, as well as the language of Section 3 and Maine statutes governing the Treasurer, supports his ability to continue to hold stocks during his tenure in office, provided that he does not undertake activity on behalf of any entity in which he owns stock. In this regard, we note that in the U.S. Attorney General's 1929 opinion, he commented favorably on Andrew Mellon's ceasing to be an officer or director before he became Secretary of the Treasury and further noted that although he owned stock in a number of corporations, in none of them did he own a majority interest nor did "he give his time or attention to the active conduct of any incorporated business." Id. at 3. FACTS A. Popham Beach Club. Our inquiry into the Popham Beach Club (the "Club") reveals the following: The Treasurer, Bruce Poliquin, is the owner of the Club, which is located on a parcel of land located in Phippsburg, Maine. The real estate on which the Club is located also is owned by the Treasurer. All revenues and expenses of the Club are attributed personally to Mr. Poliquin. The Club employs a manager who is responsible for the day-to-day operation of the Club. The manager's duties include the hiring of personnel, arranging for work...