Maryland Attorney General Opinion 99OAG133

Gen. 133] 133

OFFICE OF PROFIT

LABOR LAW – STATUS OF LABOR RELATIONS

ADMINISTRATORS FOR PURPOSES OF PROHIBITION ON

DUAL OFFICE-HOLDING

August 25, 2014

The Honorable Isiah Leggett

County Executive

You have requested our opinion on whether Maryland law

precludes a person from simultaneously serving as a Labor

Relations Administrator for Montgomery County, a member of

the “Impasse Panel” of the Prince George’s County Public

Employee Relations Board, and a Labor Relations Administrator

for the Washington Suburban Sanitary Commission. Specifically,

you ask whether two or more of these positions constitute an

“office of profit” within the meaning of Article 35 of the

Maryland Declaration of Rights such that a person could not serve

in more than one of these roles at the same time.

In our opinion, a member of the Impasse Panel of the Prince

George’s County Public Employee Relations Board does not hold

an office of profit. The Labor Relations Administrator for

Montgomery County, however, does hold an office of profit, as

does the Labor Relations Administrator for the Washington

Suburban Sanitary Commission. Accordingly, a person could

serve on the Impasse Panel and as a Labor Relations

Administrator, but could not concurrently serve as a Labor

Relations Administrator for both Montgomery County and the

Washington Suburban Sanitary Commission.

I

Background1

Article 35 of the Maryland Declaration of Rights provides,

in pertinent part, that “no person shall hold, at the same time,

1

In accordance with the rules governing the process of requesting

an opinion, you have provided us with the County Attorney’s

memorandum on the question posed here. The Montgomery County

Career Fire Fighters Association, by its counsel, has also submitted a

memorandum.

134 [99 Op. Att’y

more than one office of profit, created by the Constitution or

Laws of this State.” Your question arises because a Labor

Relations Administrator (“LRA”) appointed to enforce and

administer Montgomery County’s Fire and Rescue collective

bargaining law has also been appointed to serve on the Impasse

Panel of the Prince George’s County Public Employee Relations

Board and is under consideration for appointment as an LRA for

the Washington Suburban Sanitary Commission.

A. Montgomery County’s LRA

Montgomery County’s LRA enforces and administers the

Fire and Rescue collective bargaining law under sections 33-147

through 33-157 of the Montgomery County Code (“MCC”). The

LRA has the authority to “hold hearings and make inquiries,

administer oaths and affirmations, examine witnesses and

documents, take testimony and receive evidence, and compel by

issuance of subpoenas the attendance of witnesses and the

production of relevant documents.” MCC § 33-149(a)(3). The

LRA has the authority to issue a final decision on any prohibited

practices specified in the County Code, which decision may be

appealed to the Circuit Court for Montgomery County. MCC

§ 33-154(e)-(g). The LRA serves for a five-year term. MCC

§ 33-149(c). An incumbent LRA is automatically reappointed for

another five-year term unless the certified union representative or

employer objects before the initial term expires. Id. The LRA is

paid a daily fee while handling collective bargaining matters and

is reimbursed for expenses. MCC § 33-149(e).

B. WSSC’s LRA

The LRA for the Washington Suburban Sanitary

Commission (“WSSC”) enforces and administers the collective

bargaining laws that apply to WSSC’s employees. The LRA has

authority over the process by which employees choose an

exclusive representative for collective bargaining purposes. Md.

Code Ann., Pub. Util. (“PU”) § 18-205 (2010, 2013 Supp.). The

LRA may also resolve disputes over the eligibility of employees

for inclusion in a bargaining unit and may hold evidentiary

hearings and issue final decisions in those matters. PU § 18-206.

The LRA determines the propriety of disciplinary action imposed

on employees who engage in a strike, work stoppage, or

slowdown and may conduct a hearing on whether to revoke the

certification of an employee organization found to have assisted

or authorized such actions. PU § 18-215. The LRA also has

authority to adjudicate unfair labor practice charges filed against

the Commission or an employee organization, including the

Gen. 133] 135

ability to conduct hearings. In this capacity, the LRA may issue

findings of facts and conclusions of law, issue cease and desist

orders to parties found to have engaged in an unfair labor

practice, and order relief necessary to remedy any violations. PU

§ 18-216(d). Remedies could include reinstatement, restitution,

back pay, or any other remedy designed to restore the employee,

employee organization, or WSSC to the place it had been in

before the violation. Id. The LRA’s decision is final; an

aggrieved party’s only recourse is judicial review. PU § 18-

216(g).

The LRAs for WSSC serve for designated terms, generally

three years.2 PU § 18-203(a) and (b). The statute does not

expressly provide for the compensation of LRAs. Instead, it

states only that costs in certain matters are to be shared equally

between WSSC and the employee organization. See PU §§ 18-

205(g) (elections), 18-206(d) (eligibility hearings), 18-216(h)

(unfair labor practice proceedings). WSSC counsel has stated,

however, that LRAs are compensated for the work they do when

they preside over a hearing or otherwise exercise their authority.

See Memorandum of Montgomery County Attorney Marc P.

Hansen to Hon. Isiah Leggett, Montgomery County Executive, at

9 (Dec. 11, 2013).

C. Member of the Prince George’s County PERB Impasse

Panel

The Prince George’s County Public Employee Relations

Board (“PERB”) is composed of three separate panels with

responsibility over (a) representation matters; (b) unfair labor

practices and negotiability disputes; and (c) impasse disputes,

respectively. Prince George’s County Code (“PGCC”) § 13A-

104(a). The panels do not “act as single bodies except for the

purposes of electing their chairmen and to make, amend, and

2

The Revisor’s Note to PU § 18-203 states that the Washington

Suburban Sanitary Commission’s Law Review Committee has notified

the General Assembly of its view that the statutory language on the

length of an LRA’s initial term is “vague.” The WSSC committee

pointed out for the General Assembly’s consideration that it is

“unclear” whether all LRAs must have an initial one-year term before

being reappointed to a three-year term or whether the one-year term

provision applies only to the initial LRA. The ambiguity does not

affect our analysis here.

136 [99 Op. Att’y

rescind such rules and regulations as may be necessary to carry

out” the collective bargaining law. Id. § 13A-104(b). “At all

other times each panel serves merely as the list of third parties

eligible to deal with the disputes.” Id.

Members of the Impasse Panel are called upon to mediate

disputes that occur when an employer and the representative of an

employee organization fail to reach a collective bargaining

agreement. Each panel member has the authority to hold hearings

and “make inquiries as he deems necessary to carry out properly

his functions and powers.” PGCC § 13A-104(e). This includes

the authority to “administer oaths and affirmation[s], examine

witnesses and documents, take testimony and receive evidence,

[and] compel attendance of witnesses and the production of

documents by the issuance of subpoenas.” Id. Panel members

lack the authority to “impose a final and binding settlement on the

parties” except in limited circumstances, and even then the

settlement must be submitted to the County Council for approval.

PGCC § 13A-111(a)(2). By contrast, the other two panels within

the PERB—those that handle representation matters and unfair

labor practices and negotiability disputes—render decisions that

are not referred to the County Council for final approval. See

PGCC §§ 13A-105 through 107; 13A-114(e).

Members of the Impasse Panel are appointed by the County

Executive and confirmed by the County Council. PGCC § 13A-

104(a). They serve a two-year term and may be reappointed for

additional terms. Id. Panel members are “compensated at a rate

to be determined by contract between the members and the

County.” Id.

II

Analysis

Article 35 of the Declaration of Rights is one of several

Maryland constitutional provisions that limit dual office-holding.

See, e.g., Md. Decl. of Rights, Art. 33; Md. Const., Art. I, § 9,

Art. III, § 11; see also Report of the Task Force to Study Dual

Office Holding (“Task Force Report”), at 5-10 (1995) (listing and

discussing Maryland’s dual office prohibitions). The purpose of

these provisions is “to protect against conflicts of interest, self

aggrandizement, concentration of power, and the blurring or

obliteration of the doctrine of separation of powers in the

performance by the agents of the people of their delegated

authorities to exercise the executive, legislative and judicial

functions

Gen. 133] 137

of the organized government.” Board of Supervisors v. Attorney

General, 246 Md. 417, 428 (1967).3

The Court of Appeals has approached Article 35 questions

by posing two separate inquiries: First, is the position one “of

profit?”; and, second, does the position constitute an “office?”

See, e.g., Howard County Metropolitan Comm. v. Westphal, 232

Md. 334, 339 (1963).

A. Position “of Profit”

The Court of Appeals has defined the term “of profit”

broadly to mean any office to which “fees, salary or other

compensation is attached.” Moser v. Board of County Comm’rs,

235 Md. 279, 283 (1964). It does not matter whether the person

actually receives compensation, only whether the position is one

that would normally convey payment. Westphal, 232 Md. at 340.

Any amount of compensation is sufficient to make the office one

of profit; “[t]he amount received is immaterial.” Moser, 235 Md.

at 283.

The Montgomery County LRA and a Prince George’s

County Impasse Panel member plainly hold positions “of profit.”

Both are entitled to compensation under their respective County

Codes, and both are paid from county funds. See MCC § 33-

149(e); PGCC § 13A-104(a); Letter from Molly A. Elkin,

Counsel to the Montgomery County Career Fire Fighters

Association to Attorney General Douglas F. Gansler at 3 (Dec.

11, 2013).

WSSC’s LRA also holds a position of profit. Although the

Public Utilities Article of the Maryland Code does not explicitly

state whether WSSC’s LRA is entitled to compensation, it does

require the parties to share the costs of certain matters. See PU §§

18-205(g) (elections), 18-206(d) (eligibility hearings), 18-216(h)

3

The common law incompatible position doctrine similarly

prohibits dual office-holding, but is not applicable here. The

incompatible position doctrine looks to “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). There is no indication that any of these positions

would be subordinate to one another in any respect.

138 [99 Op. Att’y

(unfair labor practice proceedings). According to WSSC’s

counsel, the LRA receives compensation for the times during

which he or she presides at a hearing. All three positions are thus

positions “of profit.”

B. Position that is an “Office”

The Court of Appeals has addressed the question of whether

a position constitutes an “office,” both for Article 35 and for other

purposes, through four “guidelines”: (1) whether the position

“was created by law and involves duties continuing and not

occasional”; (2) whether the incumbent “performs an important

public duty”; (3) whether the position “calls for the exercise of

some portion of the sovereign power of the State”; and (4)

whether the position has “a definite term, for which a commission

is issued and a bond and oath are required.” Muthukumarana v.

Montgomery County, 370 Md. 447, 479 (2002); see also Conaway

v. State, 108 Md. App. 475, 494 (1996) (noting that the Court has

used the guidelines for both sovereign immunity and Article 35

purposes). These guidelines are not “conclusive,” D’Aoust v.

Diamond, 424 Md. 549, 587-88 (2012); rather, the determination

of whether a position constitutes an “office” must be made in light

of “the facts and circumstances in each case and the nature and

effect of the particular provision of law by which the office was

created.” Moser, 235 Md. at 281; see also de la Puente v. County

Comm’rs, 386 Md. 505, 512 (2005) (for purposes of common-law

immunity, stating that “[t]hese four guidelines . . . are employed

using the specific facts and circumstances of each individual’s

position”).

Still, the Court has considered the “ultimate test” to be

whether the position “has been created by law and casts upon the

incumbent duties which are continuing in their nature and not

occasional and call for the exercise of some portion of the

sovereignty of the State.” Hetrich, 222 Md. at 307. We therefore

begin with these two guidelines, which we discuss in three parts:

whether the position was created by law; whether it involves

duties that are continuing; and whether it calls for the exercise of

sovereignty.

1. Whether the Position Was Created By Law, and,

Specifically, By “the Constitution or Laws of this

State”

The Court’s first “guideline” is that the position be “created

by law.” This guideline pertains to the requirement in Article 35

that the “office of profit” be “created by the Constitution or Laws

Gen. 133] 139

of this State.” The position of LRA for the Washington Suburban

Sanitary Commission is unquestionably established under State

law: the Public Utilities Article of the Maryland Code. See PU §

18-203. The other two positions are established under county

law: the Montgomery and Prince George’s County codes.

The courts have not addressed whether Article 35 applies to

positions created under local government enactments, as opposed

to Acts of the General Assembly. Read in a vacuum, the phrase

“Laws of this State” could be interpreted to exclude laws enacted

by local governments, especially when the phrase, as used

elsewhere in the Constitution, refers only to Acts of the General

Assembly. See, e.g., Md. Const. Art. III, § 29 (providing that

“[t]he style of all Laws of this State shall be, ‘Be it enacted by the

General Assembly of Maryland.’”). For purposes of sovereign

immunity under the common law, however, the Court has stated

that “law” refers more generally to “Constitutional or legislative

enactment, such as a statute or local ordinance . . . .” de la

Puente, 386 Md. at 512. Accordingly, in applying the guideline

to determine whether a defendant was a “public officer” for

sovereign immunity purposes, both appellate courts have

recognized positions created by county codes as positions

“created by law.” Id. at 513 n.8 (stating that the position of

commissioner of the Frederick County Parks and Recreation

Commission “may be said to have been created by law, to wit, the

County Code”); Biser v. Deibel, 128 Md. App. 670, 679 (1999)

(holding that two positions established by the Town Code of Bel

Air were “created by law”).

We see little reason why the analysis of what constitutes an

“office” under Article 35 should be any different from that which

applies within the context of sovereign immunity. The Court of

Appeals typically applies the same guidelines when evaluating

any of the constitutional provisions that hinge on a person’s status

as a public office-holder. See, e.g., Conaway, 108 Md. App. at

494 (comparing James v. Prince George’s County, 288 Md. 315,

324 (1980) (applying guidelines in context of sovereign

immunity), and Nesbitt v. Fallon, 203 Md. 534, 544 (1954)

(applying guidelines to determine whether position is a “civil

office” under Article II, §§ 10 and 13)).

Moreover, recent legislative treatment of Article 35 suggests

that the phrase “Laws of this State” has traditionally been

understood to encompass offices created by local law. In 1995,

the General Assembly adopted a Joint Resolution that noted the

140 [99 Op. Att’y

“inherent unfairness” of the constitutional dual-office prohibitions

and stated that the prohibitions “place an onerous burden on

people who have chosen careers of protecting lives and fighting

fires, and on municipal officers.” Joint Resolution No. 7 (1995

Session) (emphasis added). The Legislature therefore asked the

Governor to appoint a task force to study the need for a

constitutional amendment and report its findings to the Governor

and General Assembly. Id. In its report, the resulting Task Force

to Study Dual Office Holding explained the effect that had been

given to the phrase “created by the Constitution or Laws of this

State”:

To a small degree, this language limits the

reach of [the Article 35] dual office

prohibition, viz., to posts of statutory or

constitutional origin. It has been relied upon

to exclude common law officers, such as

deputy sheriffs, and singular positions, such

as delegates to a constitutional convention,

from the operation of Article 35. It does not

mean that only State, as opposed to local,

officers are covered by the ban.

Task Force Report at 10, n.6 (emphasis added). Attached as

appendices to the report were advice letters in which then-

Counsel to the General Assembly Robert A. Zarnoch variously

advised that a county police officer, a county firefighter, and

certain town managers held “offices of profit” for purposes of

Article 35. Letter to Sen. Nancy L. Murphy (March 17, 1993);

Letter to Delegate-Elect James E. Malone (Dec. 14, 1994); Letter

to Sen. Idamae Garrott (Sept. 15, 1993).

In 1996, the General Assembly adopted, and the electorate

ratified, an amendment to Article 35 to provide that “[n]onelected

membership . . . in a law enforcement agency, a fire department

or agency, or rescue squad shall not be considered an office of

profit within the meaning of this Article . . . .” 1996 Md. Laws,

ch. 80 (ratified Nov. 5, 1996). The General Assembly thus

understood Article 35 to apply to positions created by the

enactments of local governments, and the amendment it adopted

reflected its preferences, later ratified by the voters, as to which

local positions should be exempt from the dual-office-holding

prohibition stated by the article.

The General Assembly’s understanding in 1995 and 1996

that Article 35 applies to local positions merely continued the

long-standing effect of the prohibition. Before the Constitution

Gen. 133] 141

was amended to grant certain home-rule powers to counties and

municipalities, non-constitutional local positions that were created

“by law” were created by an enactment of the General Assembly,4

and so Article 35 applied to many local officers. See, e.g,

Hetrich, 222 Md. at 307 (noting that the position of county

business manager was created by an act of the General Assembly

and holding that it was an office of profit). We have seen nothing

to suggest that the home-rule amendments were intended to

license local officers to occupy multiple offices of profit; to the

contrary, when the General Assembly has wished to exempt

certain classes of officers from the article, it has adopted (and the

voters have ratified) exemptions that do so expressly.5 Moreover,

it does not appear to us that the concerns that led to the retention

of the dual-office prohibitions in the Maryland Constitution since

1776—“conflicts of interest, self aggrandizement, concentration

of power,” and the “blurring” of the doctrine of the separation of

powers—would evaporate for officials whose positions are

created by local ordinance. See Board of Supervisors, 246 Md. at

428. It has therefore long been our view that an “office of profit”

created by a local government’s enactment is subject to Article

35. See, e.g., Opinion No. 94-001, 21:8 Md. Reg. 619 (Jan. 5,

1994), 1994 Md. AG LEXIS 72, *2, 14 (unpublished)

(“concur[ring] entirely” with conclusion reached by the Anne

Arundel County Attorney that “the inhibitions of Article 35 of the

Declaration of Rights apply equally to offices of profit created by

counties and municipalities”); 68 Opinions of the Attorney

General 358, 359 (1983); 59 Opinions of the Attorney General

4

Some positions were instead created under the common law and

hence were not subject to Article 35. See, e.g., Turner v. Holtzman, 54

Md. 148, 159 (1880) (“office of deputy or under sheriff is a common

law office”); 27 Opinions of the Attorney General 287 (1942) (holding

that the deputy sheriff in Dorchester County held a position created by

common law).

5

Article 35 has been amended over the years to specify that certain

positions are not “offices of profit.” For example, after the Court of

Appeals held that the article disqualified a notary public from serving

as a member of a metropolitan commission, Moser, 235 Md. at 280, the

General Assembly amended Article 35 to provide that the “position of

Notary Public shall not be considered an office of profit within the

meaning of this Article.” 1964 Md. Laws, ch. 129 (ratified Nov. 3,

1964). None of the positions about which you ask falls within the

exclusions.

142 [99 Op. Att’y

109, 119 (1974).6 We therefore conclude that all three positions

meet the “created by law” criterion.

2. The Second Part of the “Ultimate Test”: The

Continuing Nature of the Position

The Maryland courts have often recited the requirement that

an office must involve duties that are “continuing in nature and

not occasional,” but only once has a position been deemed so

“occasional” as to fail the test. In Board of Supervisors, the Court

of Appeals likened a delegate to the 1967 constitutional

convention to a “male honeybee” in that the delegate “performs

his creative duty and then ceases to exist as a public functionary.”

246 Md. at 439-40. Noting the rarity of constitutional

conventions in Maryland history, the Court stated that “the

making of a constitution which, like the century plant, has taken a

hundred years to bloom may fairly be said to be occasional.” Id.

at 440. The Court concluded that “[t]he idea of continuity

contemplated by the ordinary test for an office is lacking.” Id. at

439-40. In other contexts, the Court has distinguished the

continuity and permanency of the office itself from the amount of

time a specific individual spends exercising the duties of the

office. See Lilly v. Jones, 158 Md. 260, 268-69 (1930) (noting

that, in the context of the incompatibility of offices doctrine, the

focus is “not upon what is done, or likely to be done, by the

6

On the suggestion of counsel for the Montgomery County Career

Fire Fighters’ Association, we compared Article 35 of the Declaration

of Rights to Article 15 to consider whether the inclusion of counties in

Article 15, but not in Article 35, could shed light on whether the

framers considered the phrase “created by the . . . Laws of this State” to

include laws passed by the counties and municipalities. This

comparison was ultimately unhelpful. When Articles 15 and 35 were

originally drafted, neither included a reference to counties. Article 15

originally applied to taxes “to be levied by the State,” and it was

amended in 1914 to apply also to taxes levied “by the Counties.” 1914

Md. Laws, ch. 390. That year, the General Assembly also adopted, and

the voters ratified, the constitutional amendment that granted home rule

powers to counties that chose to adopt a charter. Id., ch. 416; Md.

Const. Art. XI-A. In our view, the fact that the General Assembly did

not also adopt a change to Article 35 to reflect the possibility of local

enactments does not indicate its intent to exclude locally-created

officers from the prohibition. Instead, that fact, along with the 1996

amendments to exclude some local officers, could lead to an inference

that the General Assembly did not consider such a change necessary to

continue the applicability of the prohibition to local offices.

Gen. 133] 143

incumbent in the performance of his duties, but what he may do

under the power conferred upon him”).

We applied these principles in 65 Opinions of the Attorney

General 381 (1980), where we concluded that the position of

election judge met the “continuity test” because the election

judges had set terms of office and were on call for any election

during their terms. Id. at 383. In arriving at that conclusion, we

turned to a treatise for guidance in applying the “continuity test”:

The elements of tenure and duration as

requisites of a public office have been held to

relate to the office itself, and not to the

incumbent. In other words, the requirement

that the position have some permanency and

continuity has been considered to mean

merely that the office itself have some

permanency and continuity.

Id. (quoting 67 C.J.S. Officers § 8, which now appears at

§ 15 of the 2012 edition). The Task Force to Study Dual Office

Holding summarized the rule succinctly: “[T]he actual exercise of

[the] powers is irrelevant to the public office inquiry. Rather, the

focus is on what the law authorizes the position to do.” Task

Force Report at 11, n.7.

The three positions at issue here clearly are not full-time

positions, and the duties they involve might seem to be

“occasional” in the ordinary sense of that word. Generally, the

incumbents’ duties involve addressing labor disputes. If no

disputes are pending, then there are no duties to be performed. As

a result, the frequency with which the incumbents perform their

duties will necessarily vary. However, the question is not the

frequency with which the incumbents actually perform their

duties, but the continuity of what each “may do under the power

conferred on him.” See Lilly, 158 Md. at 268-69. Unlike the

constitutional convention delegate who “cease[d] to exist as a

public functionary” after the convention, the three incumbents of

these positions hold terms for a set period of time and have varied

duties depending on the nature of the issues that arise. Like the

election judges whose positions we addressed in 65 Opinions of

the Attorney General 381, these officers are continuously

available, during their terms, to perform duties when the need

144 [99 Op. Att’y

arises. The respective roles as LRAs and Impasse Panel members

are thus continuing, whether or not the need arises.7

We conclude that the incumbents of all three positions

perform duties that are continuing in nature and not occasional.

In our view, all three positions meet this guideline.

3. The “Most Important Characteristic”: Whether the

Incumbent “Exercises Some Portion of the Sovereign

Power of the State”

The Court of Appeals has instructed that “[t]he most

important characteristic of a public office, as distinguished from

any other employment, is the fact that the incumbent is entrusted

with a part of the sovereign power to exercise some of the

functions of government for the benefit of the people.” Buchholtz

v. Hill, 178 Md. 280, 283 (1940); see also Nesbitt, 203 Md. at 544

(same). The Court has broadly defined the concept of “sovereign

power” as “any part of the sovereignty delegated by the people

through their constitution to the executive, legislative or judicial

branches of the government.” Board of Supervisors, 246 Md. at

440.

An individual exercises “sovereign power” when he or she

exercises some function of government “that can be validly

performed only pursuant to a specific grant of government

power.” 79 Opinions of the Attorney General 378, 380 (1994)

(citations and quotation marks omitted). The position must not be

“purely ministerial”; it must be substantive and call for the

7

In a previous Opinion concluding that membership on the State

Prosecutor Selection and Disabilities Commission constituted an

“office of profit” subject to Article 35, we acknowledged that “[w]e

might be constrained to conclude that the duties of a member of the

Commission are occasional rather than continuing if the only duty of

the Commission were to nominate the State Prosecutor since this duty

occurs only in the event of an actual or imminent vacancy in the office

and upon notification to the Commission by the Governor.” 60

Opinions of the Attorney General 121, 128 (1975). Ultimately,

however, we quoted and followed Lilly: “The question . . . should be

determined, not upon what is done, or likely to be done, by the

incumbent in the performance of his duties, but what he may do under

the power conferred upon him.” Id. at 129 (quoting Lilly, 158 Md. at

268-69). In any event, the officers we discuss here, when called upon,

exercise powers of greater duration than the occasional—and likely

one-time—nomination power we hypothesized in our earlier opinion.

Gen. 133] 145

exercise of judgment and discretion. Id. Moreover, a person

must exercise sovereignty “in his own right” (i.e., not “under the

direction and control of superiors,” Westphal, 232 Md. at 340)

and “for the benefit of the public,” 57 Opinions of the Attorney

General 266, 269 (1972).

The Court of Appeals has held that the statutes applicable to

a deputy State auditor did not delegate any part of the State’s

sovereignty to him because the statutes made only one “mention

or indication of the deputy acting in his own official right or

name,” and even in that instance provided that “he is to act only

under the direction of his superior.” Gary v. Board of Trustees of

Employees’ Retirement System, 223 Md. 446, 452 (1960). We too

have applied these principles to particular positions, and our

opinions have frequently turned on the nature of the decisions that

the person may make “in his own right.” For example, we

concluded that a county attorney for Anne Arundel County held

an office of profit because the attorney had the authority to

administer oaths, issue subpoenas, and administer the county’s

self-insurance fund, including the ability to adopt rules and

regulations for the operation of that fund. 79 Opinions of the

Attorney General at 381-82; see also 60 Opinions of the Attorney

General 530, 531 (1975) (presiding at disciplinary hearings and

conducting hearings related to personnel grievances with “full

authority to make decisions” is sovereign); 57 Opinions of the

Attorney General 595, 601-03 (1972) (rulemaking power is “an

authority of sovereign dimensions”). By contrast, we advised that

a State personnel hearing officer who also had the authority to

issue subpoenas, administer oaths, and “adjudicate” disciplinary

matters did not exercise sovereign power because that employee

worked under the supervision of another State employee, and his

decisions were subject to “approval, rejection or modification” by

the department secretary. 57 Opinions of the Attorney General at

268; see also 72 Opinions of the Attorney General 281, 284

(1987) (standing examiner appointed by circuit court not an

“office of profit or trust,” despite having the power to issue

subpoenas, when examiner “renders no final decisions”).

Here, both of the LRAs may make final decisions in their

own right, subject only to judicial review. See MCC § 33-154(e)-

(g) (Montgomery County LRA); PU § 18-206 (WSSC LRA). We

therefore conclude that they exercise a part of the State’s

146 [99 Op. Att’y

sovereign powers.8 By contrast, a member of the Impasse Panel

of the Prince George’s County PERB lacks the authority, except

in limited circumstances, to impose a binding and final settlement

on the parties. PGCC § 13A-111(a)(2). Those circumstances are

when the parties mutually agree to a settlement or the Impasse

Panel has denied a labor organization the right to strike and has

required the parties to undergo compulsory arbitration. Id. Even

then, the Impasse Panel’s decision must be submitted to the

County Council for approval. Id.

That the Impasse Panel does not have authority to render

final and binding settlements suggests that a panel member—like

the State personnel hearing officer whose decisions were subject

to the department secretary’s approval, see 57 Opinions of the

Attorney General 266—does not meet the “most important

characteristic” of having been “entrusted with a part of the

sovereign power.” Cf. Nesbitt, 203 Md. at 544. In reaching this

conclusion, we recognize that a panel member does not serve

under the “direction and control” of an agency supervisor in the

same manner as the hearing officer in our earlier opinion. 57

Opinions of the Attorney General at 268-69. We believe,

however, that the lack of authority to render a final and binding

decision is the more important consideration here. See Cohen v.

Goldstein, 58 Md. App. 699, 714 (1984) (noting that the

conclusion in Matter of Anderson, 272 Md. 85 (1974), that circuit

court masters are empowered only to make recommendations to a

judge, “wiped away” the notion that the master is “an official of

the State”); 72 Opinions of the Attorney General at 284 n.4

(stating that, in light of Anderson and Cohen, our prior opinion

8

Although we recognize that the LRAs perform much the same

role as do third-party mediators in private sector labor disputes, that

fact is not material. Private entities can offer and perform services that

governments perform, but so long as a government entity has been

charged with a particular function, its authority to perform those duties

stems from its sovereignty. Cf. Rios v. Montgomery County, 386 Md.

104, 128-29 (2005) (citing Mayor of Baltimore v. Blueford, 173 Md.

267, 276 (1937)) (outlining the difference between governmental and

proprietary functions for purposes of governmental immunity as being

whether an act is “sanctioned by legislative authority” and solely

benefits the public as opposed to generating profit or private interest for

the government). Because the LRA positions here are “sanctioned by

legislative authority,” they exercise sovereignty even though their

occupants perform the same functions when acting as private

mediators.

Gen. 133] 147

concluding that the examiner-master is an “office of profit,” see

50 Opinions of the Attorney General 57 (1965), was overruled).

We also wish to distinguish the conclusion in our earlier

opinion that personnel hearing officers, because they only

presided over internal matters involving State classified

employees, did not perform their duties “for the benefit of the

public.” 57 Opinions of the Attorney General at 269. We reach a

different conclusion here for two reasons. First, as a factual

matter, the public sector labor disputes that LRAs are called upon

to resolve—particularly those involving fire and rescue or water

and sanitation employees—have a greater potential to affect the

general public than the individual employee grievances heard by

the State personnel hearing officer. Given the local legislative

declarations of how avoiding labor unrest benefits the public, see

infra at 14-15, we cannot say that the work of the mediators “has

no bearing on, nor directly affects, any portion of the general

public.” Cf. 57 Opinions of the Attorney General at 269. More

importantly, because we had already concluded in our earlier

opinion that the State hearing officer did not exercise sovereignty

“in his own right,” we did not express the view there that a

position with duties that have only an “indirect” effect on the

general public cannot qualify as an “office of profit” for purposes

of Article 35. In fact, we are not aware of any instance in which

we or a Maryland court has found this consideration dispositive.

That the LRAs render final decisions that are binding on the

parties is the more important consideration and here suggests that

the positions are “offices of profit.”

4. The Remaining Guidelines: The Importance of the

Duty; the Term of Office, Oath, and Bond

a. “Important public duty”

The Court has not defined the “important public duty”

guideline, which is closely related to the now disused inquiry into

whether the position is one of “dignity and importance.” See

Duncan v. Koustenis, 260 Md. 98, 105 (1970) (noting that the

“dignity of office” guideline “has been greatly depreciated if not

abandoned”). Further, the Court has remarked that the “intangible

attributes of dignity and importance” are “relative and their

precise values as tests of office somewhat elusive.” Gary, 223

Md. at 450. Nonetheless, the Court has considered whether

certain public positions involve important public duties. See, e.g.,

Board of Supervisors, 246 Md. at 439 (“Certainly a delegate to a

148 [99 Op. Att’y

constitutional convention performs a highly important public duty

of great dignity.”); Moser, 235 Md. at 283 (noting that notary

publics are “required to perform essential and important duties

with integrity”); Gary, 223 Md. at 450 (stating that deputy state

auditor holds a position of dignity and importance); de la Puente,

386 Md. at 513 (accepting parties’ concession that county director

of parks, capital improvement administrator, recreation

superintendent, park superintendent, and safety inspector perform

important public duties). The Court did not elaborate on the

attributes that made these positions important.

The Montgomery County Code states the County’s policy on

the importance of bargaining collectively with fire and rescue

employees and resolving disputes promptly. See MCC § 33-147.

As relevant here, MCC § 33-147 declares the County’s policy

that, “[s]ince unresolved disputes in the fire and rescue service

harm the public and fire and rescue employees, adequate means

should be available to prevent disputes and resolve them when

they occur.” Id. “To that end,” the ordinance declares, “it is in

the public interest that fire and rescue employees have the

opportunity to bargain collectively over wages, hours, and other

terms and conditions of employment . . . .” Id. The County

Attorney’s memorandum states that the “authority and

responsibilities accorded the Montgomery County LRA . . .

demonstrate the dignity and importance of the functions that [the

incumbent performs],” and we see no reason to disagree.

The Prince George’s County Code contains a similar policy

statement, and the Impasse Panel members’ purview extends to

all employees, with certain exceptions relating to elected officials

and those in management. PGCC §§ 13A-101; 13A-102(g). In

adopting the policy, the County Council concluded that, “where

public employees have been granted the right to share in the

decision-making process affecting wages and working conditions,

they have become more responsive and better able to exchange

ideas and information on operations with their administrators.”

Id., § 13A-101(a). As a result, “government is made more

effective.” Id. As with the Montgomery County LRA, we see no

reason to question the importance of the duties performed by

Impasse Panel members.

The Public Utilities Article does not contain a similar

statement of purpose, but WSSC’s LRA performs duties that are

analogous to those of the Montgomery County LRA. The work

of WSSC employees also involves essential services; WSSC

provides water and sanitation services to customers in Prince

George’s and Montgomery counties.

Gen. 133] 149

The resolution of labor disputes, although ostensibly

pertaining only to the employer and the affected employees, can

have long-standing impacts on county governments, county

employees, and the public that funds their salaries. The LRAs

address matters implicating these essential public services; the

Impasse Panel members’ broader purview includes such matters;

and all three have the authority to address collective bargaining

matters that affect the employees who provide such services. In

our view, all three positions require individuals to perform an

important public duty.

b. Definite Term for which a Commission is Issued,

Bond, and Oath

The “definite term” inquiry focuses on whether the person

holds a “term of office fixed by statute or ordinance.” See, e.g.,

Jackson v. Cosby, 179 Md. 671, 675 (1941) (noting the lack of a

fixed term as one indication that a city engineer was not a “public

officer”); 65 Opinions of the Attorney General 381 (concluding

that election judges hold offices of profit, in part, because they

have a statutory term of office). Here, all three positions have a

set “definite term.” The Montgomery County LRA has a five-

year term, the Prince George’s County Impasse Panel member has

a two-year term, and the Washington Suburban Sanitary

Commission LRA serves either a one-year or a three-year term, as

applicable to the particular appointment. The definite nature of

these terms suggests that the positions constitute offices.

None of the three offices requires an oath or bond, which

would seem to weigh against the conclusion that they are “offices

of profit.” But the Court of Appeals has not placed much

emphasis on the requirement of a commission, oath, or bond. In

Westphal, for instance, the Court concluded that members of the

Howard County Metropolitan Commission held an office of profit

even without having taken an oath, given a bond, or received a

commission because they exercised “a large portion of the

sovereign power of government.” 232 Md. at 340. A few years

later, the Court did not address the “commission, bond, or oath”

factor at all when it held that a delegate to a constitutional

convention did not hold an office. Board of Supervisors, 246 Md.

at 439-40.

The application of this guideline points slightly towards

public officer status, as the fact that these positions carry definite

150 [99 Op. Att’y

terms likely weighs more heavily than the fact that none requires

an oath or bond.

5. Summary and Policy Considerations

Several factors might indicate that an Impasse Panel member

of the Prince George’s County PERB holds an office of profit:

the position is created by law, the incumbent performs an

important public duty, and the position is a continuing and not

occasional one. The most important factor to be considered,

however, is whether the individual exercises some portion of

government sovereignty. Impasse Panel members have the

authority to hold hearings, administer oaths, issue subpoenas, and

compel the attendance of witnesses, but the decisions the

members issue are recommendations only; they do not become

final unless and until the Prince George’s County Council

approves them. Impasse Panel members thus do not themselves

exercise the governmental power to resolve labor disputes. For

this reason principally, it is our opinion that a member of the

Impasse Panel does not hold an office of profit.

In contrast, it is our opinion that the LRAs for Montgomery

County and the Washington Suburban Sanitary Commission do

hold offices of profit. Their positions were created by law, they

exercise some portion of government sovereignty in their own

right by presiding over labor disputes and issuing final opinions,

and they perform important public duties that are potentially

continuing and not occasional. Although their positions do not

require a commission, oath, or bond, those characteristics are not

determinative. Because the LRAs qualify as offices of profit, a

person may not hold two such positions at the same time.

We think this conclusion furthers the policies that lie behind

the prohibition on dual office-holding. Although simultaneously

serving as the LRA in multiple jurisdictions may not raise

conflicts of interest or “blur[]” the lines between the executive,

legislative, and judicial branches, Board of Supervisors, 246 Md.

at 428, it would tend to concentrate influence over public sector

labor relations. And without a principle limiting such service, one

person could, theoretically, serve as the LRA in all Maryland

jurisdictions. Such a result would allow for the very “self

aggrandizement” and “concentration of power” that Article 35

was intended to protect against. Id. The conclusion we reach

here, though it may require local jurisdictions to expand their

search for qualified neutrals, best effectuates the legislative intent

by providing a diversity of perspective that might otherwise be

lacking.

Gen. 133] 151

III

Conclusion

The LRAs for Montgomery County and the Washington

Suburban Sanitary Commission hold offices of profit while the

Impasse Panel members of the Prince George’s County PERB do

not. Therefore, a person may not serve as an LRA for both

Montgomery County and the Washington Suburban Sanitary

Commission. A person who is an LRA for one of those entities,

however, may also serve on the Impasse Panel of the Prince

George’s County PERB.

Douglas F. Gansler

Attorney General of Maryland

Derek Simmonsen

Assistant Attorney General

Adam D. Snyder

Chief Counsel, Opinions & Advice