Maryland Attorney General Opinion 99OAG242

242 [99 Op. Att’y

PUBLIC OFFICERS AND EMPLOYEES

LOCAL GOVERNMENT – BOARD OF COUNTY COMMISSIONERS

MAY NOT APPOINT ONE OF ITS OWN MEMBERS AS A

NON-EX OFFICIO MEMBER OF THE PLANNING

COMMISSION

December 23, 2014

The Honorable Jan H. Gardner

County Executive

You have asked for our opinion on whether the Board of

County Commissioners of Frederick County (“BOCC”), in the

final days of its existence as the County’s governing body,1

validly appointed its sitting president to the Frederick County

Planning Commission. Specifically, you ask whether the BOCC’s

November 24, 2014 appointment of then-President Blaine Young

to the planning commission either resulted in his holding two

“offices of profit” in violation of Article 35 of the Declaration of

Rights or violated the common law rule against “incompatible”

positions. You also ask what effect any violation of those

principles would have on Mr. Young’s continuing service on the

planning commission.

In accordance with our policy, you provided an opinion of

the County Attorney on these questions. The County Attorney

concluded that Mr. Young’s appointment violated both the dual

office-holding prohibition of Article 35 and the common law rule

barring an individual from holding two incompatible positions,

but that it was not clear which of the two positions Mr. Young

retained as a result. See Memorandum of John S. Mathias, County

Attorney, to Jan H. Gardner, County Executive (Dec. 9, 2014)

(“County Attorney Opinion”). We also received materials from

Mr. Young, including a November 6, 2014 email from the County

Attorney addressing the potential effect of simultaneously holding

two offices of profit and a letter from C. Paul Smith—a former

1

Effective December 1, 2014, Frederick County became a charter

county governed by a seven-member County Council, with certain

powers granted to an elected County Executive. See Frederick County

Charter §§ 802, 201, Article 4.

Gen. 242] 243

colleague of Mr. Young on the BOCC—requesting that we not

render an opinion.2

We agree with the County Attorney’s conclusion that the

two positions are “offices of profit” and “incompatible,” but, for

reasons based on other law, we conclude that Mr. Young was

ineligible for appointment as a “citizen”3 member of the planning

commission and thus never validly held the position. The

common law generally prohibits a body from appointing one of

its own members to a position on another body. Section 2-102 of

the Land Use Article provides an exception to the common law; it

authorizes a board of county commissioners to appoint one its

members to serve on the planning commission in an ex officio

capacity. It does not, however, authorize the county com-

missioners to appoint one of their own as a non-ex officio member

of the planning commission. Because the statutory provision is a

specific grant of authority that was enacted in derogation of

common law, it must be construed narrowly so as not to imply

additional powers. So construed, the statute does not give the

BOCC the power to appoint Mr. Young as a “citizen” member of

2

In his letter, Mr. Smith asserts that it is not appropriate for us to

issue an opinion here because “this matter is an actual, existing case

and controversy,” and because Mr. Smith did not “believe Article V of

the State Constitution authorizes such an opinion.” Letter from C. Paul

Smith to Douglas F. Gansler, Attorney General (Dec. 15, 2014). We

disagree. Although we generally will not issue an opinion on any

question that is the subject of current or imminent litigation, we are not

aware of any such litigation here. And while Article V, § 3 of the

Maryland Constitution does not require us to issue opinions in response

to local government requests, when resources allow, we provide

assistance to local governments to “help resolve legal matters involving

substantial issues of State law.” See “Frequently Asked Questions

About Opinions of the Attorney General; Can a local government

official request an Opinion of the Attorney General?” (available at

http://www.oag.state.md.us/Opinions/faq.htm). We have previously

issued opinions in response to requests from the Frederick County

Board of County Commissioners. See, e.g., 87 Opinions of the

Attorney General 66 (2002); 67 Opinions of the Attorney General 151

(1982); 71 Opinions of the Attorney General 128 (1986).

3

Participants in the November 24 BOCC meeting that resulted in

Mr. Young’s recent appointment used the term “citizen member” and

“five-year member” to describe a member of the planning commission

who does not serve in an ex officio capacity. We use the term “citizen”

member in that same sense.

244 [99 Op. Att’y

the planning commission. Mr. Young was thus ineligible for the

position, and his appointment was ineffective from the outset.

I

Background

The questions you pose require us to describe the law

governing the composition of local jurisdictions’ planning

commissions and the facts regarding the appointment of Mr.

Young to Frederick County’s planning commission. Also

relevant are the provisions of the Frederick County Code on the

compensation of members of the BOCC and the planning

commission.

A. Provisions Governing Planning Commission Membership

1. State Law

The Land Use Article of the Maryland Annotated Code

authorizes local jurisdictions to “establish by local law a planning

commission with the powers and duties set forth in [Division I of

the Land Use Article].” Md. Code Ann., Land Use (“LU”) § 2-

101; see also LU § 1-101(i) (defining “local jurisdiction” to

include “a county”).4 The Article also sets forth the parameters

applicable to a local jurisdiction’s establishment of a planning

commission, if it chooses to establish one. As relevant here, the

statute prescribes the composition of the planning commissions

that local jurisdictions may create: a planning commission may

consist of “three, five, or seven members,” and “[o]ne member

may be a member of the legislative body, who serves as an ex

officio member concurrent with the member’s legislative term.”

LU § 2-102(a). The statute also sets the term for the other,

“citizen,” members: “The term of a planning commission member

other than an ex officio member is: (i) 5 years; or (ii) until the

member’s successor takes office.” LU § 2-102(c)(1).

Planning commission members are appointed by the local

jurisdiction’s governing body or its designee under the applicable

local law, or, “if there is a single elected local executive,” by the

executive, subject to confirmation by the legislative body. LU

§ 2-102(b). The statute also provides for appointments in the

event of a mid-term vacancy: “If a vacancy occurs during the

4

Except as noted, all references to the Land Use Article are to the

2012 volume, with the 2014 Supplement.

Gen. 242] 245

term of an appointed member, the vacancy shall be filled for the

unexpired term in the same manner as is required for appointment

under [§ 2-102(b)].” LU § 2-102(e).

2. Local Law

Frederick County has elected to create a planning

commission. See Public Local Law for Frederick County,

Frederick County Code (“County Code”) § 1-13-16. Because the

ordinances that address the organization of the planning

commission do not explicitly identify what entity has the

authority to appoint members of the planning commission, see id.

§§ 1-13-16 through 1-13-21, the BOCC was by default the

appointing authority under LU § 2-102(b)(1) while Frederick

County operated under the commission form of governance. As

to vacancies, the County Code provides: “Vacancies occurring

otherwise than through the expiration of term shall be filled for

the unexpired term by the County Commissioners.” County Code

§ 1-13-18. Planning commission members are “eligible for

reappointment.” Id. Effective December 1, 2014, however, the

County Executive holds the power to appoint members to fill any

type of vacancy on the planning commission. Frederick County

Charter § 412(b).

As required by the County Code, the planning commission

has adopted rules that govern the transaction of business before it.

See Rules of Procedure of the Frederick County Planning

Commission (“Planning Commission Rules”); County Code § 1-

13-19 (requiring the planning commission to adopt rules).

Section 2.3 of those rules provides: “A designated member of the

County Commissioners may serve as a voting member or may be

a member of the [Planning] Commission having all the rights and

privileges of the regularly appointed members, and serve in an ex-

officio capacity concurrent with his or her official term, as

determined by the Board of County Commissioners.”

B. County Provisions on the Compensation of the Board of

County Commissioners and the Planning Commission

Section 2-2-18(a)(l) of the Frederick County Code provides:

“Each member of the board of county commissioners is entitled to

an annual salary of $45,000 as full compensation for services as a

member of the board of county commissioners or as a member of

any other county board or agency.” The County Attorney tells us

that members of the planning commission other than the ex officio

246 [99 Op. Att’y

member receive compensation of $75 per meeting. The ex officio

County Commissioner member receives no additional com-

pensation for service as a member of the planning commissioner.

See County Code § 2-2-18(a)(1).

C. The BOCC’s Appointment of Mr. Young to the Planning

Commission

Mr. Young served as the President of the BOCC from

December 2010 until the Frederick County Charter took effect on

December l, 2014. On that date, the BOCC ceased to exist.

Frederick County Charter §§ 802, 808. During his term of office,

the BOCC appointed Mr. Young to the planning commission as

the Board’s ex officio member, as permitted by LU § 2-102(a)(2)

and § 2.3 of the planning commission rules. Mr. Young was an

unsuccessful candidate for County Executive in the November

2014 election.

On November 24, 2014, the BOCC convened its last

scheduled public meeting before its dissolution. After the

conclusion of the items specified on the agenda, Mr. Young

announced his immediate resignation from the planning

commission as its ex officio member and read to the other Com-

missioners a letter of resignation to that effect. Commissioner

Smith moved to accept Mr. Young’s resignation and to appoint

Mr. Young to fill a new five-year term as a “citizen” member of

the planning commission effective November 30, 2014. The

motion was seconded by Commissioner Shreve. During the

debate that followed, Commissioner Gray expressed surprise at

the motion, which he ultimately opposed, and the County

Executive-Elect stated that the appointment of Mr. Young to a

new five-year term usurped the County Executive’s appointment

power. The motion was adopted by a 3-1 vote, with

Commissioner Gray voting against. At some point in the

proceedings, Mr. Young passed the gavel to Commissioner Smith

and did not vote on the motion.

The planning commission regularly meets on the second

Wednesday of each month but it may also hold additional

meetings as needed. The planning commission did not, however,

meet on November 30—the day on which Mr. Young purportedly

served as both County Commissioner and member of the planning

commission—and Mr. Young received no compensation for his

services as a member of the planning commission for that day.

County Attorney Opinion at 2.

Gen. 242] 247

II

Analysis

Hetrich v. County Commissioners of Anne Arundel County,

222 Md. 304 (1960), provides the analytical framework for

answering the questions you pose. There, the Court of Appeals

held that a county commissioner was ineligible for appointment

by the commissioners to the office of county business manager.

In reaching that holding, the Court described Article 35’s

prohibition on holding two “offices of profit,” the “incompatible

positions” doctrine, and the ramifications of holding two such

positions simultaneously. The Court also clarified that, where an

officer is appointed to a second position for which he is ineligible,

the appointment is “ineffective,” id. at 312, and a “nullity.” Id. at

309.

The ineligibility that makes an appointment to a second

office a “nullity” can be based on a constitutional, statutory, or

common law prohibition. Id. In Kimble v. Bender, for example,

the basis for the ineligibility was constitutional: Art. III, § 17 of

the Maryland Constitution prohibited a legislator from being

appointed to an office that was created by statute during his term

in the Legislature. 173 Md. 608, 612, 621-22 (1938). Here, the

circumstances implicate a common law prohibition: the rule that

“a member of an appointing board is ineligible for appointment

by the board even though the member’s vote is not essential to a

majority in favor of an appointment.” 67 C.J.S. Officers § 31, at

208 (2012); see also, e.g., 63C Am.Jur.2d Public Officers and

Employees § 93, at 563-64 (2009). This rule is based on the

rationale that “the appointing board cannot absolve itself of

ulterior motives if it appoints one of its own, whether or not his

vote was necessary to the appointment, since the opportunity

improperly to influence the other members of the board is there.”

Hetrich, 222 Md. at 309-10.

In Hetrich, the Court of Appeals stated, and then applied, the

common law rule that “a member of an appointing body is

ineligible for appointment to a conflicting office by that body,

even though his own vote is not essential to the appointment.”5

5

As we have previously explained, this passage in Hetrich could

be read to require that, in order for the rule of ineligibility to apply, the

two offices at issue must be “conflicting” offices. 76 Opinions of the

Attorney General 142, 144 n.1 (1991). We doubt that the Court of

248 [99 Op. Att’y

Hetrich, 222 Md. at 309-12. It therefore held that the appoint-

ment of a county commissioner by the board of county

commissioners to serve as acting county business manager was

“ineffective.” Id. at 312. The same rule would ordinarily apply

here to prohibit the County Commissioners from appointing one

of their own members to the planning commission.

However, as with common law rules generally, the rule of

ineligibility applied in Hetrich may be altered by legislation, see

76 Opinions of the Attorney General at 145 n.3, and the General

Assembly has done so in § 2-102 of the Land Use Article.

Section 2-102 states that “[o]ne member of the planning

commission may be a member of the legislative body, who serves

as an ex officio member concurrent with the member’s legislative

term.” LU § 2-102(a)(2). Pursuant to this provision, the Board

had the authority to appoint one of its own members to serve on

the planning commission, but that member was only allowed to

serve ex officio,6 with his term on the commission coinciding with

his legislative term.

Appeals meant that; “[n]either the rationale offered for the common

law rule of ineligibility in Hetrich, nor in caselaw generally, appears to

limit the rule to appointments to ‘conflicting’ positions.” Id. (internal

citations omitted). But even if the rule were so limited, the positions in

question here are “conflicting.” The County Commissioners had the

power to appoint members of the planning commission, remove them

for cause, and set their compensation. See County Attorney Opinion at

5; see also Hetrich, 222 Md. at 308 (“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.”).

6

Our office has “wrestled with the interaction of dual office

prohibitions and [§ 2-102’s] authorization of ‘ex officio’ service on a

planning commission by members of a county or municipal

corporation’s legislative body.” Letter of Advice from Robert A.

Zarnoch, Assistant Attorney General, to Del. Richard A. Sossi at 3

(Nov. 16, 2005). To some extent, the term “ex officio” is a misnomer

in this context; “[t]rue ‘ex officio’ service arises solely and

automatically by virtue of a person’s holding of a particular office, not

by the mechanism of a discretionary appointment.” Id.; see also 61

Opinions of the Attorney General 152, 163 (1976) (“[T]he ex-officio

position must arise directly from holding the first office.”). We need

not decide here if the County Commissioner serves on the planning

commission in a “true” ex officio capacity to conclude that LU § 2-102

Gen. 242] 249

Because the Land Use Article is a grant of authority, and a

very specific one, the authority provided in § 2-102 acts as a

mandatory limitation, and prohibits the county commissioners

from exercising their appointing authority in any other manner.

See Office & Professional Employees Intl. Union v. Mass Transit

Admin., 295 Md. 88, 96 (1982) (stating that, “where a statute

authorizes or permits a person or agency to take a certain type of

action in a particular manner, such manner becomes a mandatory

limitation, and the action must be taken in conformity with it”);

see also Mossburg v. Montgomery County, 329 Md. 494, 505

(1993) (applying the principle to a State zoning enabling

provision). And because LU § 2-102 was enacted in derogation

of the common law rule against a body appointing one of its own

members, it must be construed narrowly. See Walzer v. Osborne,

395 Md. 563, 573-74 (2006). As the Court of Appeals declared in

Gleaton v. State, “it is not to be presumed that the legislature by

creating statutory assaults intended to make any alteration in the

common law other than what has been specified and plainly

pronounced.” 235 Md. 271, 277 (1964) (quoted in Walzer, 395

Md. at 573-74); see also Witte v. Azarian, 369 Md. 518, 533

(2002) (requiring “clear legislative intent” to alter the common

law). Here, the clear, specific, and plain terms of the statute do

not authorize the BOCC to appoint one of its own members to

anything other than a single ex officio spot on the planning

commission. Accordingly, we conclude that the Board did not

have the authority to appoint one of its own as a “citizen” member

of the planning commission with a term that exceeds his

legislative term. Under Hetrich, then, the appointment of Mr.

Young was ineffective.7

must be viewed as a statute in derogation of common law. See Letter of

Advice from Robert A. Zarnoch, Assistant Attorney General, to Sen.

James C. Simpson and Del. John W. Quade, Jr. at 4 (March 22, 1979)

(concluding that § 3.02 of former Art. 66B—the predecessor to LU § 2-

102—abrogated the common law “incompatible positions” doctrine).

7

We recently addressed the relative roles of a planning

commission and the local governing body. See 99 Opinions of the

Attorney General 152 (2014). The statutory scheme does not suggest

that the governing body may effectively assume the planning

commission’s role by appointing multiple members of the governing

body to the planning commission as “citizen” members. See id. at 153-

56 (describing functions assigned to each body). Also in that Opinion,

we traced the legislative history of Maryland’s planning authorities

from their origins in the 1928 Standard City Planning Enabling Act to

250 [99 Op. Att’y

We agree with the County Attorney that the positions of

County Commissioner and member of the planning commission

are “offices of profit” and “incompatible positions,” but because

the Board’s attempted appointment of Mr. Young was void from

the outset, his occupation of the planning commission position

was only “illusory.” See Hetrich, 222 Md. at 308. As a result,

Mr. Young never actually held either a “second office of profit

within the meaning of Art. 35 of the Declaration of Rights, or an

incompatible office under the common-law rule.” Id. at 312.

There is thus no need for us to determine under the “office of

profit” and incompatible position doctrines whether Mr. Young

resigned his first office by accepting the second. Id. His

purported appointment to the second was void in the first place,

and he simply remained in his position as County Commissioner

as if the appointment had never happened.8 See id.

III

Conclusion

Maryland common law generally prohibits a body from

appointing one of its own members to a position on another body.

their recodification in the current Land Use Article. Id. at 161-67.

Throughout that history, every version of what is now LU § 2-102 has

provided that the local legislative body may appoint one of its members

to the planning commission, with that one member serving ex officio

and for a term that corresponds to the tenure of his elective office. See

1933 Md. Laws, ch. 599 (codified at Md. Ann. Code, art. 66B, § 3);

Md. Ann. Code art. 66B, § 12 (1935 Supp., 1957, 1967 Repl. Vol.);

Md. Ann. Code art. 66B, § 3.02 (1970 Repl. Vol., 2003 Repl. Vol.). As

described in the 1928 model planning act, the purpose of having the

local legislative body represented on the planning commission was so

that it could be “kept in touch with what the . . . planning commission

is doing.” U.S. Dep’t of Comm., The Advisory Committee on City

Planning and Zoning, “A Standard City Planning Enabling Act” at 10

n.15 (1928). “This can best be accomplished,” the committee stated, by

authorizing the legislative body to select “one of its own members” to

serve on the commission, id., in an “ex officio” capacity and with a

term that corresponds to the member’s “official tenure[].” Id. at 10-11.

8

Although we conclude that the Board did not have the authority

to appoint Mr. Young as a “citizen” member of the planning

commission, it did have the authority to appoint him—or, to be

accurate, re-appoint him—as the Board’s ex officio member of the

commission. As LU § 2-102 plainly provides, however, Mr. Young’s

term as an ex officio member expired when his term as county

commissioner ended on December 1.

Gen. 242] 251

Although LU § 2-102 provides an exception to the common law

for ex officio appointments, that exception, construed narrowly,

did not authorize the Board of County Commissioners to appoint

one of its own members as a non-ex officio member of the

planning commission. Mr. Young’s appointment as a “citizen”

member of the planning commission was thus ineffective.

Douglas F. Gansler

Attorney General of Maryland

Adam D. Snyder

Chief Counsel, Opinions & Advice