AUGUSTA — Gov. Paul LePage’s chief legal counsel will go before a legislative committee Tuesday in her bid to become a District Court judge just days after Attorney General Janet Mills warned her that the administration is violating state law.

Cynthia Montgomery, the governor’s top lawyer since February of 2015, was nominated by LePage in December to serve as a District Court judge. Montgomery’s confirmation hearing before the Legislature’s Judiciary Committee comes amid a dispute between Montgomery and Mills over the administration’s use of staff attorneys. It was not clear Monday if lawmakers plan to question Montgomery on the legal dispute during her confirmation hearing.

In a letter to Montgomery on Friday, Mills delivered what she described Monday as a final warning about approximately 14 Department of Health and Human Services employees who “hold themselves out as attorneys” and provide legal counsel to the state agency, something Mills says is a clear violation of state law.

The Attorney General’s Office provides legal advice to state agencies and defends the state in court. Mills said the DHHS attorneys were hired without her approval and had appeared before legislative committees as legal counsel. At least once, an employee, Bill Logan, described himself as the “general counsel” for MaineCare services while testifying before the Legislature’s Health and Human Services Committee on an issue that is the source of a lawsuit in Kennebec County Superior Court.

Mills wouldn’t elaborate on legal steps her office might take to resolve the dispute. Mills, who often has clashed with LePage, insisted her stand is a legal matter, and not personal.

“Read the statute,” she said. “This isn’t about personalities. This isn’t about politics. This is about the law.”


Mills said the law was passed because the attorney general and her staff take an oath to represent the people of Maine, not an agency or an official. Agency staff lawyers have not taken that oath. They also are not covered by the tort claims act, which protects the state from liability, Mills said.

Montgomery, in an interview with the Portland Press Herald on Monday, said she and Mills differ on the interpretation of “legal services.” In a Jan. 14 letter to Mills, Montgomery wrote that the administration didn’t trust Mills “and by extension, your office” to “advise or represent it with non-partisan, professional legal judgment.”

Montgomery sought to clarify that statement Monday, saying it was not meant to impugn the reputations of the assistant attorneys general who provide legal advice to state agencies, including roughly 12 assigned to DHHS. However, she said that it’s inevitable that the acrimonious relationship between LePage and Mills would trickle down through the offices that each oversees.

Asked if she thought the legal advice provided by assistant attorneys general assigned to DHHS had been compromised, Montgomery said, “I don’t know that that’s the case. I don’t want to go so far so as to disparage her or the people who report to her. But it would be ridiculous to pretend like there isn’t a problem here.”

Montgomery said the frustration is primarily at DHHS, which has pushed an aggressive agenda that on at least two occasions the Attorney General’s Office has either warned against or actively opposed in court. Montgomery said Mills hasn’t treated DHHS as a client. Instead of providing legal advice to achieve certain policy initiatives, she said Mills has simply said that certain initiatives can’t be pursued.

“If I go to a lawyer and say, ‘Can I do this? This is my policy initiative,’ and the answer is, ‘You can’t do that,’ where do I go from there?” Montgomery said.


Mills said the law is clear and makes no distinction about whether a lawyer is providing legal services or performing litigation.

“The law is based on the principle that lawyers working for the state ultimately answer to the people, not to a specific client or individual, and it is intended to provide consistency in the legal positions taken by the state and to minimize litigation,” Mills wrote in her Jan. 22 letter.

Without specifying, she said there are “several options” her office might take if the administration does not cease using the attorneys for legal advice.

Montgomery said Mills should provide examples of ways that the DHHS attorneys had breached state law.

“It would be interesting and helpful to have some specifics,” she said. “Up to this point, I have not been given any specifics other than a couple of minor mistakes that were addressed months ago.”

On Jan. 13, Logan, who identified himself as the general counsel for MaineCare services, testified against L.D. 1498, a bill that would restore a Medicaid ombudsman position. DHHS ended its contract with Consumers for Affordable Health Care to provide the ombudsman service. The agency is now suing DHHS over the decision. Logan’s testimony essentially made a legal argument that the bill was unnecessary and that Maine is not required to have an ombudsman position under federal law.


Rep. Drew Gattine, D-Westbrook, co-chairman of the health committee and a former assistant attorney general, said Logan was “clearly giving interpretation of state law and federal law.”

He added, “What’s really concerning about this, is that there’s litigation on this right now. Here we have a person saying I’m the lawyer for MaineCare and here’s my interpretation of the law. In the meantime the Attorney General is going to be defending this case (on behalf of the department). What if her legal position in this lawsuit is different than what he’s saying (in committee)? It doesn’t make a lot of sense.”

Although the timing suggests the dispute could come up during Montgomery’s confirmation hearing Tuesday, it’s not clear if it will affect her chances of becoming a District Court Judge.

Montgomery is a Texas native who graduated from Georgia State University, where she also received her law degree in 1994. Her profile was elevated in recent months because of two public controversies. The first occurred in July, when she unsuccessfully argued before the Maine Supreme Judicial Court that LePage did not err when he failed to veto 65 bills in the time period prescribed by law. That same month, Montgomery said that the Legislature’s watchdog agency could not investigate the governor for his role in preventing the hiring of House Speaker Mark Eves as president of a nonprofit organization in Fairfield.

Sen. David Burns, R-Whiting, co-chairman of the Judiciary Committee, said he hoped that Democrats would not try to use Montgomery’s position in defending the governor against her during the confirmation hearing.

“It would be unfortunate if that’s the case,” he said, adding that Montgomery should be evaluated on her qualifications, not her current boss.


Judge confirmations require a majority vote of the Judiciary Committee. The Senate can override the committee vote with a two-thirds vote. Republicans, who are likely to support the governor’s nominations, control the Senate.

The dispute over legal services between Mills and LePage dates back several years and came to a head in 2014 when Mills declined to represent LePage to defend two initiatives because she didn’t believe they would succeed in court. The first was whether Maine could drop some 19- and 20-year-olds from its Medicaid rolls. The second was a lawsuit filed by Portland, Westbrook and the Maine Municipal Association over LePage’s attempt to change state policy on providing General Assistance to some immigrants.

Mills authorized LePage to hire his own attorney in both cases. A federal appeals court ruled against the state in the Medicaid suit. The LePage administration fared better in the General Assistance case when it reached the Maine Superior Court. The AG’s office was not involved with the case.

In 2015, LePage sought $2 million to cover legal cases not supported by the attorney general, an amount Mills’ spokesman described as “baffling and unprecedented.”

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