January 18, 2012

Bill Nemitz: Did state treasurer cross constitutional line?

People of all political stripes like to talk about the Maine Constitution. Leave it to state Rep. Mark Dion, D-Portland, to actually read it.

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State Treasurer Bruce Poliquin

Staff file photo

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The website of the Popham Beach Club shows photos of the facility in Phippsburg. Owner Bruce Poliquin, the state treasurer, is planning to expand uses of the club.

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Dion letter

"I write to request an opinion on whether the State Treasurer's business involvement in the Popham Beach Club violates ... the Maine Constitution, which prohibits the treasurer from engaging in commerce while serving in office," Dion wrote in a letter delivered Tuesday to Maine Attorney General William Schneider.

Dion is talking, of course, about irrepressible State Treasurer Bruce Poliquin, who in recent months has sought – and received – permission from the town of Phippsburg to expand activities at his exclusive seaside Popham Beach Club.

That's the same Bruce Poliquin who owns Dirigo Holdings LLC, which has a housing development called Popham Woods in Phippsburg. The company is now marketing single and duplex condominiums that come with automatic memberships to Poliquin's beach club.

All of which has Dion, who's both a lawyer and a former Cumberland County sheriff, stuck on the Maine Constitution's Article V, Part 3, section 3:

"The Treasurer shall not, during the treasurer's continuance in office, engage in any business of trade or commerce, or as a broker, nor as an agent or factor for any merchant or trader."

A little background:

Last month, Poliquin appeared before the Phippsburg Planning Board seeking to expand allowable uses for his beach club from a $1,950-per-season, members-only facility to "year-round catered functions including but not limited to corporate meetings, family, church, civic gatherings and health retreats."

Over the objections of dozens of neighbors who turned out for the six-hour-plus hearing on Dec. 8, the Planning Board and Board of Selectmen voted 6-1 to approve Poliquin's request for a new business license. (The neighbors are appealing.)

I spoke with Poliquin about the controversy a few days before the hearing.

"That's the beauty of the private sector," he told me at the time. "When you start a business, (sometimes) you have to make adjustments. People do it all the time."

Not when they're state treasurer, they don't. At least according to Maine Supreme Judicial Court Justice Donald Alexander.

Back in 1978, just before he became state treasurer, Jerrold Speers of Winthrop asked the Attorney General's Office if the treasurer "may, during his term of office, accept other employment or perform professional work for other compensation."

Alexander, then an assistant attorney general, replied that state law and the Constitution "require that the Treasurer, while in office, not engage in any other business or profession."

Alexander also noted that while a treasurer can receive income from other sources (such as investments) while in office, "the practices which result in receipt of that income ... would have to be examined on a case-by-case basis to determine whether the Treasurer was engaging in business to gain that income."

None of which is apparently news to Poliquin.

In November of 2010, several weeks before the Legislature's newly elected Republican majorities anointed him treasurer, Poliquin himself approached the Attorney General's Office asking for an opinion on whether he could continue his business activities in Phippsburg upon taking office.

Then-Attorney General Janet Mills, now vice chair of the Maine Democratic Party, said Tuesday that her office told Poliquin it could not give him legal advice until he actually took over as treasurer.

"I think we encouraged him to seek his own private legal counsel if he had any questions – because he wasn't a public official," Mills said.

Whether he did isn't clear. But in that interview last month – which he put off until he was driving home that night because "this deals with a private-sector thing ... (and) I'm right by the book" – Poliquin told me that his various businesses now "are run by professionals I trust and I've worked with for a number of years."

(Continued on page 2)

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