AUGUSTA – A proposal by Secretary of State Charlie Summers to create a small-business advocate’s position in his office continues to raise constitutional concerns.

A key part of Summers’ plan would allow the advocate to halt regulatory actions against businesses for 30 days if the businesses disputed them.

At issue is whether allowing the advocate to issue such stays would survive a legal challenge.

Members of the Regulatory Fairness and Reform Committee met Thursday to discuss the issue for at least the third time since the session began.

“I don’t know how many times we’ve had this and it keeps coming back in a form that has constitutional problems and a lot of stuff that isn’t really thought out,” said state Rep. Sharon Treat, D-Hallowell, adding that the most recent proposal is still not ready for “prime time.”

The purpose of the small business advocate would be to give small businesses somewhere to turn if they felt they were being unjustly punished by the actions of a state agency, such as the Department of Environmental Protection or the Department of Health and Human Services. Summers, who first made his proposal in mid-February, has sought to give the small-business advocate the power to hit the ‘pause’ button, so such an agency action could be reviewed.

But Democratic members of the committee, supported by testimony from the state Attorney General’s Office, say granting the secretary of state — who is elected by lawmakers and considered a member of the legislative branch — such power over the executive branch raises constitutional issues concerning separation of powers.

Republicans on the committee insist that creating such a position is necessary so aggrieved businesses have somewhere to turn for relief.

But on Thursday, they said they were also wary about the issues raised by the AG’s office.

“With the special advocate piece, there are still concerns,” said state Sen. Jon Courtney, R-Sanford, the Senate committee chair.

“If there was another suggestion to accomplish what we are trying to accomplish, I would certainly be open to it.”

Even though lawmakers had asked representatives from the offices of the secretary of state and the attorney general to collaborate on draft legislation, it was apparent Thursday that this was unsuccessful.

“The constitutional hurdles that were created in this draft, in my opinion, are too high to overcome,” said Rep. Seth Goodall, D-Richmond. “So if we can address some of the due process concerns, some of the separation of power concerns, then I think we could potentially find some consensus.”

Linda Pistner, chief deputy attorney general, said the draft proposal presented to lawmakers did not resolve the constitutional concerns she had raised in her last meeting with Summers’ office.

“We had an agreement, O.K.?,” she said. “… Having had this agreement … (this) has suddenly got blown up to cover everything under the sun and every government agency in the state of Maine that imposes any fines or penalties administratively or through court on businesses.”

Pistner said the law might still not pass constitutional muster even if the advocate’s power to issue the stays was removed.

Summers said he “didn’t realize” that agreement was final. “I think that I didn’t realize that we didn’t have the opportunity to continue to evolve on this process,” he said. “After looking at it, and talking with my counsel, you realized that if the agencies stopped someone from doing business, that’s as good as continuing to fine them and accrue penalties.”

Rep. Jon McKane, R-Newcastle, the House committee chair, said he is confident a solution can be found.

“We want it to be very comfortable and not push any constitutional boundaries, that’s the objective,” he said.

The Attorney General’s Office is now going to draft a proposal aimed at accomplishing the committee’s goals, but that it also believes would pass constitutional muster.

MaineToday Media State House Writer Rebekah Metzler can be contacted at 620-7016 or at:

[email protected]