Can a deputy run for his boss’s job without first resigning his commission?

Can a sitting sheriff endorse one who would be his replacement?

Former legislator George Bunker, who is running for the sheriff’s job in Washington County against Sgt. Donnie Smith and Cpl. Rodney Merritt, says the law is clear – the two men are working as deputies and are in violation of state law.

The race is one of the most contentious in the state and in the past few days has involved a lot of finger-pointing and allegations of illegal activities.

Bunker said Friday he had informed Smith and Merritt on several occasions that state law was clear and if they didn’t resign their positions as deputies they’d be in violation of it. He quoted MRSA 30-A, subsection 355 as the basis for his argument.

If Bunker is right, it means that deputies past and present who have run or are running for their boss’s jobs are in violation of the law. Merritt and Smith aren’t the only deputies running this year; the chief deputy of Kennebec County is also running for that county’s top law enforcement job.

Bunker said that when he served in the state House of Representatives he helped change the law to allow deputies and the sheriff to run in nonpartisan elections such as school committees or for the board of selectmen. That was in 1989. He said the change occurred after the former sheriff in Aroostook County said it wasn’t fair that a state trooper could become a selectman, but a deputy could not.

“[They] can’t be involved in partisan elections which means an election where someone has an R, D, I or G after their name,” he said. But they can run for nonpartisan school board or municipal type positions, he said. “We wanted the deputies and sheriffs to be more involved. We wanted them to do more things than just wear that uniform or a hat. [In the past they] had to get done being a deputy in order to be a selectman,” he said.

Bunker said neither Smith nor Merritt believed him when he told them about the law. “I wasn’t going to make a big stink, I’m just trying to be a good boy,” he said. “It’s a conflict of interest. No deputy sheriff can play around in partisan politics.”

The candidate called the feud over the issue of deputies wearing a uniform while campaigning a “horror show.”

Smith said Friday he remembers speaking with Bunker about the issue of his running as a deputy, but did not believe Bunker’s interpretation of the law was right. “I believe the election committee would not allow [us to run]; they all are aware we’re sheriff’s deputies,” he said.

Merritt said Friday he too remembers speaking with Bunker but disagreed with Bunker’s interpretation of the law. “It’s not true, we found there’s no factual basis. If it was true you wouldn’t see any deputies running,” he said.

Robert S. Howe, executive director of the Maine Sheriffs’ Association, said Friday the law appeared to be unclear and said he planned to look into the legislative history behind it. “That’s something that the Legislature’s Law Library does is to dig up whatever legislative history there is. For example, they may have kept copies of written testimony in public hearings. They would have on record what was said on the floor during the House and Senate,” he said.

In the past 20 years, he said, numerous deputies across the state have run for the office of sheriff. “If George is right, a sitting sheriff couldn’t run for re-election, and I can’t believe that’s a reasonable interpretation,” he said.

Howe said it might be appropriate to ask a legislator to request an attorney general’s opinion on the law. “I can’t tell you categorically that he’s wrong,” Howe said of Bunker’s allegation. “But I’m not entirely convinced he’s right either.”

Earlier this week, Bunker also alleged in a broadcast on Classic Hits Radio in Calais that Sheriff Joseph Tibbetts was in violation of the law when he endorsed Merritt to replace him. “[The] sheriff cannot endorse anyone for the office of sheriff and you got radio ads being run with the sheriff endorsing his boy Rodney Merritt, and that’s a clear-cut violation of the law,” Bunker said on the radio.

On Friday, Tibbetts said he did not believe it was in violation of state law.

Charles Dow of the Attorney General’s Office agreed with him.

Dow said he did not believe the law applied in this case. “Maine law prohibits a law enforcement officer from using his official authority or influence for the purpose of interfering or affecting the results of an election, but that doesn’t seem to extend to their freedom to express their opinion,” he said.

For example, Dow said, a sheriff could not order every car with a Bush bumper sticker to be stopped on Election Day or direct office staff on how to vote, but supporting a candidate was different. “Is there other conduct that would be covered by this language, probably, but does it extend to merely expressing an opinion about telling others who they’re going to vote for, it doesn’t seem to,” he said.

Contacted Friday, Bunker said, “How does a sheriff endorse a deputy … if they are not supposed to run? It just doesn’t make sense.”