Maryland Attorney General Opinion 101oag023

Gen. 23] 23

PUBLIC OFFICERS AND EMPLOYEES

INCOMPATIBILITY OF OFFICES – COUNTY COMMISSIONER AND

PUBLIC SCHOOL EMPLOYEE

July 25, 2016

Rochelle S. Eisenberg

Pessin Katz Law, P.A.

On behalf of the Board of Education of Carroll County

(“school board”), you have asked for our opinion on two questions

that have arisen out of the election of Dennis E. Frazier, a public

school employee, to the Board of County Commissioners of Carroll

County. Your first question is whether “a county commissioner,

who is also a public school employee, may vote on matters

impacting the local board of education,” particularly school

funding matters. This question does not raise an issue of State law.

Instead, county law—specifically, Carroll County’s ethics

ordinance—controls County officials’ duties to avoid conflicts of

interest. It is our policy not to construe local laws in our opinions,

and therefore we offer no opinion on that issue.

Your second question, which does raise State law issues, is

whether there is an “incompatibility of office” between the

positions of county commissioner and school board employee

under the common-law doctrine that precludes a person from

serving in public positions that are incompatible with each other.

You have provided us with your opinion that the two positions are

not incompatible under the common law. We agree that the

positions of commissioner and public school teacher are ordinarily

not incompatible, but in Carroll County the inquiry is complicated

by the fact that the commissioners also serve as ex officio,

nonvoting, members of the school board. See Md. Code Ann.,

Educ. (“Educ.”) § 3-401(a)(3). That circumstance requires an

analysis of whether Mr. Frazier’s status as an ex officio member of

the school board is incompatible with his service as a public school

teacher. Although that is a closer question, we conclude that the

positions of ex officio member of the school board and employment

by the school board as a teacher are also not incompatible.

24 [101 Op. Att’y

I

Background

As we have previously observed, the county boards of

education “are granted broad authority to control all educational

matters that affect the counties.” 75 Opinions of the Attorney

General 172, 179 (1990); see also Educ. § 4-101(a) (providing that,

subject to certain provisions specific to Prince George’s County,

“educational matters that affect the counties shall be under the

control of a county board of education in each county”).1 The local

boards’ powers and duties include, among other things, the power

to appoint and set the salaries of school employees, § 4-103,

determine the educational policies of the county school system,

§ 4-108(3), and prepare an annual budget, § 5-101. Although the

statutory provisions that set forth these powers and duties apply

equally to all county boards, each board is subject to county-

specific statutory provisions that govern its make-up. Some boards

are appointed; they are filled according to the provisions in Part II

of Title 3, Subtitle 1 of the Education Article. See § 3-108. Others,

including the Carroll County board, are elected; they are filled

according to the provisions in Part III of Subtitle 1. See § 3-114.

Although the Carroll County school board is characterized as

an elected board, Educ. § 3-114(a)(3), not all of its members are

elected. The five voting members are elected to the board, § 3-

401(c), as is the nonvoting student representative, who is elected

by the high school students of the county. § 3-401(f). But the board

also includes all of the county commissioners, who are not elected

to the board, but instead serve as nonvoting, ex officio members.2

§ 3-401(a)(3).

Mr. Frazier was elected to the Board of County

Commissioners in 2014 and began his term of office on December

1

Unless otherwise indicated, all statutory references are to the

Education Article, 2014 Replacement Volume and 2015 Supplement.

2

In this opinion, we use the term “ex officio” to refer to a member

who holds his position by virtue of holding another office. See 61

Opinions of the Attorney General 152, 163 (1976) (stating that “the ex-

officio position must arise directly from holding the first office”); see

also 99 Opinions of the Attorney General 242, 248 n.6 (2014) (discussing

different uses of the term). Until July 1, 2014, the local boards in

Allegany County and Garrett County also had a county commissioner-

member who served ex officio. See 2014 Md. Laws, ch. 295. To our

knowledge, the Carroll County board is the only board on which all of

the county commissioners serve ex officio.

Gen. 23] 25

3, 2014. At the time he was elected, Mr. Frazier was a teacher

within the Carroll County Public School System. It is our

understanding that Mr. Frazier continues to hold that position

today. The questions you raise relate to whether Mr. Frazier’s

employment as a public school teacher is incompatible with his

service as a county commissioner or as an ex officio member of the

Carroll County school board.

II

Analysis

A. Whether Mr. Frazier’s Teaching Position in the Carroll

County School System Is Incompatible with His Service as

a County Commissioner

You provided your opinion that Mr. Frazier’s employment by

the school board is not incompatible with the office of county

commissioner. Your opinion is based in part on a letter of advice

from the Office of Counsel to the General Assembly on the

question of whether a teacher or administrator employed by a

school board could run for the office of county commissioner. See

Letter from Kathryn M. Rowe, Assistant Attorney General, to Hon.

George C. Edwards (Nov. 1, 2013). We agree with Ms. Rowe’s

explanation of the applicable principles and agree with your

conclusion that the two offices are not ordinarily incompatible.

The Court of Appeals has summarized the common-law test

of incompatibility as follows:

The fundamental test of incompatibility at

common law is whether there is a present or

prospective conflict of interest, as where one

office is subordinate to the other or subject to

supervision by the other, or where the

incumbent of one office has the power to

appoint or remove or to set the salary of the

other.

Hetrich v. County Comm’rs of Anne Arundel County, 222 Md. 304,

308 (1960); see also Lilly v. Jones, 158 Md. 260, 266 (1930). In

Maryland, the doctrine applies both to public employees and to

public office-holders and requires a fact-specific inquiry. Howard

County Metro. Comm’n v. Westphal, 232 Md. 334, 342-43 (1963);

see also 85 Opinions of the Attorney General 218, 220-21 (2000)

(summarizing the common law). Ordinarily, an incumbent of a

26 [101 Op. Att’y

public position who accepts a second public position that is

incompatible with the first is deemed to have chosen the second

position and vacated the first. Hetrich, 222 Md. at 308.

As you have pointed out, Mr. Frazier’s teaching position does

not conflict with the office of commissioner by virtue of

subordination to, or supervision by, that office; county governing

bodies lack the power to appoint, remove, or supervise school

board employees. And while the county commissioners ultimately

approve the local school system’s budget and fund it in part, the

county commissioners do not set individual teacher salaries. Mr.

Frazier’s two positions thus do not fall under the Hetrich court’s

example of a conflict that would create an incompatibility.

Addressing a similar issue, the Attorney General of Kansas

concluded that the incompatibility doctrine did not bar a local

school board employee from serving on the state board of

education because the state board did not supervise the employee

and did not set either the employee’s salary or the employee’s

duties. Kan. Att’y Gen. Op. No. 2007-43; 2007 WL 4466583,*3

(Dec. 17, 2007).3

That leaves the question of whether another type of conflict

makes the positions incompatible under Hetrich, as might be the

case if Mr. Frazier’s employment by the school board entailed the

preparation of the school board’s budget. See Irvington Mun.

Council v. Steele, 95 N.J.A.R.2d (EDU) 123; 1994 WL 975083,

*16 (N.J. Adm. Dec. 19, 1994) (finding “a clear conflict for a

school business administrator who develops the budget for the

school district to review that same budget in his capacity as mayor

and chair of the [town’s] Board of School Estimate”). Here, it does

not appear that Mr. Frazier’s position as a teacher involves him in

the school board’s preparation of its budget or any other school

funding matters, and no other type of conflict has been brought to

our attention. Based on our understanding of Mr. Frazier’s

responsibilities as a public school teacher, we agree that his

teaching position is not incompatible with his service as a county

commissioner.

Our conclusion on this point, of course, does not fulfill your

request for guidance on whether Mr. Frazier is barred from voting

3

Although the Kansas Attorney General’s opinion is helpful in

analyzing common law incompatibility, the conclusion it reaches would

likely be foreclosed by Maryland statutory law, which prohibits an

“individual who is subject to the authority of the [State] Board” from

being appointed to the Board. See § 2-203(b)(3)(i).

Gen. 23] 27

on matters affecting a local board of education. The incom-

patibility doctrine addresses whether someone may hold both

positions, not whether someone who properly does so has the duty

under ethics laws to recuse himself from some matters. As might

be the case with any commissioner, a topic that comes before the

commissioners could conceivably be so specific as to affect Mr.

Frazier’s personal interests and thereby raise questions under the

county’s ethics ordinance.

In 1987, the Attorney General of North Carolina reached the

same conclusion when asked whether a school principal, serving

also as a county commissioner with funding power over the school

system, occupied incompatible offices. See 57 N.C. Op. Att’y Gen.

33; 1987 WL 269244, *2 (1987). The Attorney General explained

that he was “not prepared to declare [the positions] incompatible”

under the common law, but cautioned that “a school employee

serving on a board of county commissioners having funding

responsibility for his school system should constantly bear in mind

that his duty is to vote the public’s interest as he perceives it, not

his own interests.” Id. The Attorney General elaborated on the

potential conflicts that might arise:

Circumstances when the tension between the

school employee’s interests and the public’s

interest would be heightened include specific

votes on the parts of a budget request

providing salary supplements and specific

votes on other parts of the budget requests

directly relating to the employee. If a school

employee determines that his personal interest

predominates over, or might appear to

predominate over, the public’s interest in a

given situation, the school employee should

request to be excused from voting.

Id. Ultimately, however, whether a local official must recuse

himself from a matter is governed by local ethics laws, which, in

accordance with our longstanding policy, we do not construe.4 See,

e.g., 88 Opinions of the Attorney General 145, 150 (2003).

4

The interpretation of the county’s ethics ordinance lies with the

Carroll County Ethics Commission. Under that ordinance, the County

Ethics Administrator is to respond within 30 days to requests for

advisory opinions on the application of the ethics rules, and “[i]f the

28 [101 Op. Att’y

B. Whether Mr. Frazier’s Teaching Position Is Incompatible

with His Ex Officio Status as a Nonvoting School Board

Member

Our conclusion that Mr. Frazier’s employment as a public

school teacher is not incompatible with his service as a county

commissioner does not end the inquiry. Because all of the Carroll

County Commissioners are also nonvoting ex officio members of

the local school board, § 3-401(a)(3), we must also address whether

Mr. Frazier’s ex officio position on the board is incompatible with

his job as a teacher. Two circumstances complicate that analysis.

First, § 3-114(f) of the Education Article could be read to make the

positions statutorily incompatible. Second, as to the common law

doctrine of incompatibility, there is little or no Maryland precedent

on the duties and loyalties of ex officio members of boards.

Because the General Assembly may enact legislation altering the

common law of incompatibility, see 85 Opinions of the Attorney

General at 224, we will start by addressing statutory

incompatibility.

1. Statutory Incompatibility

Two provisions of the Education Article address the question

of when an individual is prohibited from serving on a county board

of education. Section 3-108(b)(2) applies to appointed school

boards; it provides that “[a]n individual who is subject to the

authority of the county board may not be appointed to or serve on

the county board.” That provision does not apply here because the

Carroll County board is an elected board. Section 3-114(f) applies

to elected school boards:

An individual subject to the authority of the

county board may not serve as a member of

the county board. At the time of filing a

certificate of candidacy for election to a

county board, a person shall certify to the

local board of supervisors of elections

whether or not the person is subject to the

authority of the county board. The Governor

Ethics Administrator is unable to respond within 30 days, then the

County Attorney will respond, or in the absence of the County Attorney,

the Ethics Commission will respond.” Carroll County Code of

Ordinances § 34.06(B). Further, under § 34.04, “[i]n the event that the

County Attorney is unable to provide legal advice due to a conflict or a

perceived conflict, the Ethics Commission may request through the

County Attorney outside counsel . . . .”

Gen. 23] 29

may not issue a commission of election to a

person who has certified affirmatively and

who is elected to a county board until the

member-elect offers proof that the member-

elect is no longer subject to the authority of

the county board.

Taken out of context, the first sentence of § 3-114(f) would seem

to prevent a public school teacher from serving on an elected local

board; it plainly prohibits anyone who is subject to a school board’s

authority from serving as a school board member in any capacity.

However, statutes must be read in context. Even when the meaning

of a provision seems plain, it is to be read not by reference to “the

isolated section alone,” but rather “within the context of the

statutory scheme to which it belongs, considering the purpose, aim,

or policy of the Legislature in enacting the statute.” Employees’

Ret. Sys. of City of Baltimore v. Dorsey, 430 Md. 100, 113 (2013)

(quoting cases); see also Robey v. State, 397 Md. 449, 454 (2007)

(noting that a court “may find useful the context of a statute, the

overall statutory scheme, and archival legislative history of

relevant enactments”).

The surrounding provisions in subsection (f) suggest strongly

that the prohibition is directed to school board members who are

elected to that office. The sentence immediately following the

prohibition requires a person to disclose, “[a]t the time of filing a

certificate of candidacy for election to a county board,” whether the

person is subject to the authority of the county board. If the person

certifies that he is subject to the county board’s authority, the

Governor may not issue a “commission of election” to the

“member-elect” until he offers proof that he is no longer subject to

the authority of the county board. Subsection (g) similarly provides

that the “election of the county boards shall be held” as provided in

Subtitles 2 through 14 of this title [i.e., the county-specific

provisions for elected boards] and the Election Law Article.”

Educ. § 3-114(g). In addition, the statute itself appears in that Part

of Title 3, Subtitle 1 dealing with elected boards, suggesting that

only those members elected to the boards were the object of

legislative concern in § 3-114. As a whole, then, the “thrust of the

entire statute,” Robey, 397 Md. at 455, is directed at the eligibility

of candidates for the elected positions on school boards and not at

members placed on those boards by other means.

The legislative history confirms that § 3-114 applies only to

candidates for election to a school board and the elected members.

30 [101 Op. Att’y

Carroll County’s board became an elected board in 1974. See 1973

Md. Laws, ch. 599 (adding a new § 35B to the “Public Education”

title of what was then Article 77). In the subsection that specified

the mode of nomination of school board candidates, the new statute

provided: “No person subject to the authority of the Board of

Education of Carroll County may be certified as a candidate.” Art.

77 § 35B(b)(2) (emphasis added). Later, after Article 77 had been

recodified into the Education Article, the General Assembly

amended the law governing the election of school board members

for purposes that included “specifying that the nomination and

election of [school board candidates] conform to the . . . Election

Code.” 1982 Md. Laws, ch. 338. A summary in the bill file for

that legislation indicates that the specific purpose of the

amendments was to ensure that elections to local school boards

were governed by the same election code provisions that govern

how other “elected officials are elected.” See “House Bill 281”

(summarizing legislation), Bill file on H.B. 281, 1982 Leg., Reg.

Sess. (1982); see also Patton v. Wells Fargo, 437 Md. 83, 99-100

(2014) (relying on similar documents found in a bill file). Indeed,

the current Election Law Article provisions applicable to the

election of school board members requires the election board to

“determine whether the candidate qualifies as provided under Title

3 of the Education Article and Title 5 of this [Election Law]

article.” Md. Code Ann., Election Law (“EL”) § 8-803(a). The

focus of all of these legislative enactments is on how members of

local school boards are elected to their position, not on those

members who sit on the board in an ex officio capacity.

Finally, since 1982, the General Assembly has provided for

most elected boards an appointed, often nonvoting, student

member. See, e.g., Educ. § 3-201(b)(2). We see no indication that

the General Assembly intended to render the various boards’

student members—who are obviously “subject to the authority of

the county board”—ineligible for the positions assigned to them in

the county-specific provisions. Instead, the legislative history

confirms what the statutory context already suggests: the first

sentence of what is now § 3-114(f) applies to candidates for, and

elected members of, elected school boards and not to other

members, such as appointed, student, and ex officio members. We

therefore conclude that § 3-114(f) of the Education Article applies

only to the elected members of the school board.

2. Common-Law Incompatibility, as Applicable to Ex

Officio Positions

Our conclusion that § 3-114(f) does not apply to the non-

elected ex officio board members means that the positions of ex

Gen. 23] 31

officio board member and teacher are only incompatible if they are

incompatible under the common law. As an initial matter, we think

that service as a public school employee and as a voting member of

the school board would likely be incompatible. Although no

Maryland appellate decisions have addressed the issue, courts in

other states have routinely found service as a school board

employee to be incompatible with service as a voting member of

the school board. See, e.g., Unified Sch. Dist. No. 501, Shawnee

County, Kan. v. Baker, 269 Kan. 239, 250-52 (2000) (holding that

the positions of schoolteacher and voting school board member

were incompatible under the common-law rule); Thomas v.

Dremmel, 868 P.2d 263 (Wyo. 1994) (same, as to school board

maintenance employee); see also Allan E. Korpela, Annotation,

Right of Schoolteacher to Serve as Member of School Board in

School District Where Employed, 70 A.L.R. 3d 1188 (1976 & Cum.

Supp.).

Mr. Frazier, however, is not a voting member of the school

board. The fact that the ex officio board member does not have a

vote would at least lessen the conflict of interest that would exist if

a public school teacher served as a voting member of the school

board. The nonvoting member might still be able to influence the

board by making his views known during the board’s

deliberations,5 but he would not be able to directly affect, by voting,

how the board acts with respect to matters of interest to public

school teachers.

At the same time, authorities from other jurisdictions suggest

that an incompatibility between offices does not evaporate simply

because the member does not vote. For example, the Supreme

Court of Wyoming has held that the incompatibility between a

position on the school board and employment as a teacher within

the district would not be cured by a member “absent[ing] himself

from the discussion and voting on his own contract.” Haskins v.

State ex rel. Harrington, 516 P.2d 1171, 1179 (Wyo. 1973). The

court reasoned that “the need of the community for continuing

exercise of judgment and the making of decisions on the basis of

give-and-take discussion of independent minds is not served best

where one of the board must at frequent intervals take no part

because of conflict.” Id.; see also 70 A.L.R. 3d 1188, at § 2

5

See 100 Opinions of the Attorney General 55, 77-78 (2015) (under

the liberal construction given the State Public Ethics Law, member of

district council “participates” in the “consideration” of matters by being

present during their discussion).

32 [101 Op. Att’y

(observing that most courts “apparently tak[e] the position that the

voters are entitled to school board members who are free to vote on

all matters and that the mere possibility of conflict is sufficient to

create an incompatibility between the two positions”). And the

Louisiana Attorney General concluded that a physician may not

serve on a hospital district board with authority over the

physician’s hospital, even if he served entirely in a non-voting

capacity. La. Atty. Gen. Op. No. 91-117 (1991).

However, none of these out-of-state authorities involved ex

officio membership on a school board, where the potential

incompatibility arises only because a statutory provision places the

member there. And those out-of-state authorities that do address

ex officio status, but do not involve school board membership,

provide conflicting guidance. For example, the Iowa Attorney

General concluded in 1906 that, while the law in this area was “not

clearly defined,” it was “extremely doubtful” that the mayor of a

city could serve on the state board of health when the mayor also

served ex officio as a member of the local board of health, which

was under the direction of the state board. See Iowa Atty. Gen.

Op., 1906 WL 52871 (Feb. 27, 1906). More recently, by contrast,

the Supreme Court of Hawaii has suggested that the common law

rule prohibiting a person from holding incompatible offices “is

inapplicable when a person is compelled by law to accept the

second position.” State v. Villeza, 85 Haw. 258, 270 (1997). When

the incompatibility is thrust upon the office-holder by operation of

law, “neither the design nor the spirit of” the common law

prohibitions is served by disqualification.6 Id. (quoting 63A Am.

Jur. 2d Public Officers and Employees § 83 (1984)); see also M.C.

Dransfield, Annotation, Effect of Election to or Acceptance of One

Office by Incumbent of Another Where Both Cannot Be Held by

Same Person, 100 A.L.R. 1162 (1936 & Cum. Supp.).

As for Maryland law, there is very little guidance available on

whether an incompatibility of an official’s outside employment

with a nonvoting ex officio position would make the person

ineligible for the principal office to which the ex officio position is

attached. On the one hand, it could be argued that, had the General

Assembly wished to disqualify all school board employees from

service on Carroll County’s board of commissioners, the General

Assembly would have expressed that intent. It did not; although

the Election Law Article makes clear that the candidacy of school

6

The circumstances of the Hawaii case are somewhat different from

ours; the potentially conflicting duties there were imposed on the office-

holder only after the official had taken office. Villeza, 85 Haw. at 270.

Gen. 23] 33

board members is subject to the Education Article, see EL § 8-801,

neither the Election Law Article nor the Local Government Article

contains an analogous provision on the candidacy of county

commissioners. Further, Maryland law expressly protects the right

of public servants, including school board employees, to run for

political office. See Md. Code Ann., State Pers. & Pens. § 2-304(a)

(2015 Repl. Vol.) (providing that a state employee “may freely

participate in any political activity”); 85 Opinions of the Attorney

General at 218 (“State law guarantees State and local government

employees the right to run for public office.”).

On the other hand, this office has consistently opined that the

right to run for office does not include the right to serve in an

incompatible position once elected. See, e.g., 85 Opinions of the

Attorney General 177, 180-81 (2000). And the fact that the

Election Law Article and other laws pertaining to elected officials

do not enumerate each public position with which an elective

office might be incompatible means only that common-law

incompatibility principles apply.

In sum, there is no clear answer to the question of whether an

incompatibility between outside (but public) employment and an

ex officio position would preclude a person from serving in the

office to which the ex officio position is attached. What does seem

clear, however, is that an ex officio membership on the school board

is not considered to be a separate position in the first place. It has

long been the view of this office that a membership made ex officio

by virtue of a principal office “does not constitute the holding of

separate offices but rather is the appending of additional duties

upon the first office.” 61 Opinions of the Attorney General at 162

(addressing whether an ex officio membership was a separate

position for purposes of the constitutional bar on holding two

offices of profit); 60 Opinions of the Attorney General 121, 129

(1975) (ex officio service “is not the holding of a separate office”);

see also, e.g., Hancock v. Davidson County, 104 S.W.2d 824, 828

(Tenn. 1937) (explaining that “it is almost everywhere a settled rule

that a statute conferring additional duties on a public officer ex

officio does not have the effect of appointing him to a second

office”).

From these principles, we conclude that the commissioners’

primary duty lies with the office of commissioner and that their ex

officio, nonvoting, membership on the school board does not create

a separate office with separate duties. The interplay between the

two positions does not involve the type of structural conflict of

34 [101 Op. Att’y

loyalties that the incompatibility doctrine is designed to prevent.

See Hetrich, 222 Md. at 308. As applied here, that means that Mr.

Frazier’s duties lie with the principal office, that of county

commissioner. Because his teaching position is not incompatible

with that of commissioner, there is no incompatibility of office. So,

while ethical questions may arise from time to time in particular

circumstances, as would be the case for any commissioner when an

issue arises that might affect the commissioner’s personal interests,

the positions of school board employee and commissioner are not

rendered incompatible by the provision in the Education Article

that confers ex officio, non-voting school board membership on the

commissioners. We found no indication of a broad legislative

intent to bar the employees of the Carroll County School Board

from serving as Carroll County commissioners.

III

Conclusion

The office of county commissioner, which includes the

function of serving ex officio on the school board, is not

incompatible with employment by the school board as a teacher.

This conclusion does not address Mr. Frazier’s duties under the

ethics provisions applicable to his positions.

Brian E. Frosh

Attorney General of Maryland

Adam D. Snyder

Chief Counsel, Opinions & Advice

* Ann MacNeille, Assistant Attorney General, contributed

significantly to the preparation of this opinion.