Top officials doubt legality of secretary of state’s plan for business advocate

Posted March 31, 2011, at 7:44 p.m.
Last modified April 01, 2011, at 10:22 a.m.
Charles Summers
Robert F. Bukaty | AP FILE
Charles Summers

AUGUSTA, Maine — Democratic lawmakers and the Attorney General’s Office continued to raise constitutional concerns Thursday about a proposal to grant the secretary of state potentially broad powers to intervene on behalf of businesses at odds with state regulators.

As part of the Legislature’s effort to improve Maine’s business climate, Secretary of State Charles Summers has proposed creating a “special advocate” within his office where businesses could turn when accused of violating state regulations. Such an advocate would provide independent assistance and advice.

A key but controversial part of Summers’ plan would enable the special business advocate to halt — at least temporarily — regulatory actions against businesses when enforcement could cause the business to close or lay off employees. The temporary stay could give the business and agency time to work out an agreement, with the advocate’s help.

But Summers’ proposal has been described as a “power grab” by some Democrats, who question why the secretary of state should have or needs such authority when businesses already have other appeal options.

As was clearly evident at Thursday’s meeting of the Legislature’s Regulatory Fairness and Reform Committee, Summers’ plan for a special advocate is not sitting well with the office of fellow constitutional officer — and Republican — Attorney General Bill Schneider.

“I think there is going to remain a fundamental disagreement about the scope of the authority you’re going to be giving to the special advocate,” said Linda Pistner, chief deputy attorney general.

It has been roughly six weeks since Summers first unveiled his proposal to the regulatory reform committee, which is charged with cobbling together a bill or bills to reduce red tape as part of the push to make Maine more business friendly.

The issue remains contentious, however, despite several small-group work sessions and hours of sometimes circular debate.

“We’ve talked about this multiple times and it keeps coming back in a form that has constitutional problems,” Rep. Sharon Treat, D-Hallowell, said Thursday.

Treat and other Democrats question the constitutionality of allowing the secretary of state, who is elected by lawmakers, to halt enforcement action being carried out by the administration.

Summers has made clear that the special advocate would steer clear of cases involving businesses accused of violations that could endanger public health or the environment.

But those assurances have not been enough to address the concerns of some committee members. Instead, several suggested the Department of Economic and Community Development should be taking on the cases of aggrieved companies.

“The proposal we have before us has significant constitutional burdens that are very challenging to overcome, so I think we need to take a new approach,” said Sen. Seth Goodall, D-Richmond.

But Summers said allowing the executive branch to police the actions of another executive branch agency does not guarantee the type of independence that his office could provide.

Republicans on the GOP-controlled committee also seem supportive of the idea.

Agreeing with Summers about the fruitlessness of locating an advocate within the executive branch, committee co-chairman Rep. Jonathan McKane, R-Newcastle, compared the proposed special advocate to a police officer’s gun. You hope they don’t need it, McKane said, but it helps discourage abuse and, in rare occasions, is a necessary tool.

The other committee co-chairman, Republican Sen. Jonathan Courtney of Springvale, acknowledged there were still issues to work out but indicated he supported Summers’ concept.

“I think we have an opportunity here to really make a difference by telling people across the state of Maine that if you’re aggrieved, you have an opportunity to go directly to somebody to hear your grievance,” Courtney said. “I think that is very important.”

After a couple hours of discussion, the committee concluded that agreement was impossible and instead asked the Attorney General’s Office to work on new draft language for next week’s meeting.

It was unclear, however, whether the committee would be able to reach an agreement on the contentious issue in time to hold a public hearing on April 14, as planned.

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