After backing legislation that would bring more oversight to elected county sheriffs, the Maine Sheriffs’ Association withdrew its support this week, potentially torpedoing the bill’s chances of being passed by the full Maine Legislature and showing the difficulty of bringing legislative changes even amid widespread calls for more police accountability.
Upon learning that the sheriffs’ association was opposing LD 375, which would create a process for sheriffs to be placed on administrative leave when they are suspected of unethical or criminal behavior, the Legislature’s state and local government committee voted 10-2, with one lawmaker absent, to recommend that the bill ought not to pass. It will now go to the full Legislature for a vote.
This is the second time that Sen. Lisa Keim, R-Dixfield, has sponsored a bill to create a way for sheriffs to be placed on leave after former Oxford County Sheriff Wayne Gallant remained in office in 2017 while being investigated internally and by the FBI, allowing him to allegedly destroy records.
Currently, the Maine Constitution only allows the governor to remove a sheriff entirely from office. There is no legal mechanism for the governor to take the initial step of placing a sheriff on leave, meaning sheriffs can remain as top law enforcement officers even while they are under investigation for breaking the law. This protocol differs from the standard practice for dealing with rank-and-file officers, who are commonly placed on leave when they are alleged to have committed wrongdoing.
“What happened with the Oxford County sheriff should never be allowed to happen again when we can put a simple process in the law to fix it,” Keim said. “Just because [sheriffs are] elected, they’re not above accountability. Their resistance is troubling.”
The sheriffs’ new opposition stems from recent changes made to the bill. As originally drafted and supported by the association representing Maine’s 16 sheriffs, the bill proposed to have the courts act as an intermediary in deciding whether a sheriff should be placed on administrative leave, before sending the matter on to the governor for a final decision.
But, not wanting to give to the courts the authority reserved for the governor under the Maine Constitution, Keim said she amended the bill to allow county commissioners to bring their complaints directly to the governor — leaving the courts out of the process — and allow the governor to decide whether to place a sheriff on paid administrative leave.
She told the legislative committee that the attorney general’s office wrote the new language, which was also supported by the governor’s office. She later said that, despite trying to solicit the sheriffs’ association’s opinion on the new draft legislation for a month and offering to make additional changes to make the bill palatable to sheriffs, the association didn’t offer adjustments and didn’t tell her it would oppose the bill until the day of the committee vote.
On Monday, the sheriffs’ association told the committee it was the amended version that was in conflict with the Maine Constitution and criticized the decision to remove the courts from the proposed process for placing sheriffs on leave. It had originally hoped having a judge first review complaints about sheriffs would eliminate any potential motivation to oust sheriffs based on politics.
Some of the new bill language is “not consistent with the Constitution,” said Penobscot County Sheriff Troy Morton, who is president of the sheriffs’ association. For instance, the amended bill would allow county commissioners to file a complaint with the governor if sheriffs are “improperly exercising or acting outside the sheriff’s authority, such as gross deviation in ethical behavior or engaging in criminal conduct.” But, he said, those reasons expand beyond what the Maine Constitution outlines as a case for removal.
“While it was our best intent to make sure that there was a fair mechanism in place,” Morton said, Maine shouldn’t pass a law where “somebody looks at this in the future and challenges and says, ‘That’s not what the Constitution says.’”
The committee’s legal analyst, however, said she did not agree that the new bill language raised constitutional issues. “It is permitting the governor to do something. It is not requiring the governor to do anything,” Lynne Caswell said. “If it did, that’s when you’d run into problems with the Constitution.”
Marc Malon, a spokesperson for the attorney general’s office, agreed. The amendment “simply set forth a process that county commissioners could use,” he said, adding that it “did not preclude other types of processes to request removal.”
Under the updated bill, if county commissioners want a governor to place a sheriff on administrative leave, a majority would need to support the complaint, and they would be required to submit one or more affidavits laying out the facts backing up their request. The sheriff would be given 72 hours to respond to the allegations.
“We definitely worked as best we could to try to limit anything that would be frivolously brought forth to the governor,” Keim said. But “whether it’s a pause, like a suspension of a sheriff, or a full removal of a sheriff, the governor really is the only entity that can make that decision, which is why we had to move away from the courts.”
Other lawmakers on the committee provided differing reasons for why they voted against recommending that the full Legislature pass the bill. Sen. Joe Baldacci, D-Bangor, and Rep. Lynn Copeland, D-Saco, voted to recommend the bill.
The committee “had serious concerns and really didn’t want to wade into an issue where it could result in a court case or legal challenge,” said Rep. William Tuell, R-East Machias. “That pretty much puts us back to where we were two years ago,” when sheriffs opposed Keim’s first bill, which died in May 2019.
“If you’re going to do something like this, imposing conditions on a specific group of people, you have to have their buy-in, especially when the bill started out with their buy-in, and they backed out of it because of concerns over this amendment,” Tuell said.
Rep. Randall Greenwood, R-Wales, said he simply didn’t think there was a need for the bill.
“I heard some of the reasons why the sponsor felt it was necessary. It just didn’t bring it to the level of needing to make that change,” he said. “I just didn’t feel I was ready to step out and make that constitutional leap.”
The sheriffs’ change in opinion didn’t alter his vote, said Walter Riseman, I-Harrison, but he might change his mind after hearing the matter debated on the Legislature floor.
Rep. Frances Head, R-Bethel, who comes from the county that former sheriff Gallant used to patrol, said she was not going to comment, before hanging up abruptly.
The other lawmakers who opposed the bill — Sen. Kim Rosen, R-Bucksport; Rep. Ann Matlack, D-St. George; Rep. Mark Bryant, D-Windham; Rep. Sean Paulhus, D-Bath; Rep. Donna Doore, D-Augusta; and Rep. Kathy Downes, R-Bucksport — did not respond to requests for interviews.
BDN writers Callie Ferguson and Josh Keefe contributed to this report.