Maryland Attorney General Opinion 95 OAG 095

Gen. 95] 95

COUNTIES

E LECTIONS – C HARTER H OME R ULE C OUNTIES – C OMMISSIONER

C OUNTIES – F EWER E LECTIONS A MEND M ENT –

A PPLICATION OF F EWER E LECTIONS A MENDMENT TO C ECIL

C OUNTY G OVERNING B ODY IF C OUNTY A DOPTS C HARTER

H OME R ULE

April 20, 2010

Ms. Joyce Bowlsbey

Chairman, Cecil County Charter Board

On behalf of the Cecil County Charter Board, you have

requested our opinion concerning the terms of office of a County

Executive and members of a County Council that would be created

by a prospective charter. The Charter Board’s questions each pertain

to the extent to which Article XVII of the Maryland Constitution,

known as the Quadrennial Elections Article or Fewer Elections

Amendment, would constrain the scheduling of elections under a

charter. In particular, the Charter Board is interested in the answers

to the following questions:

1 – May the staggered terms of office that now apply to the

Cecil County Commissioners also be applied to members of a Cecil

County Council upon adoption of a charter form of government?

2 – Alternatively, may the new charter dispense with staggered

terms of office for County Council members?

3 – May a Cecil County charter provide for the election of a

County Executive in 2012 and every four years thereafter?

4 – If the State Constitution would not permit off-year

elections of a County Executive, may a charter provide for the initial

election of a County Executive in 2012 as a transitional measure, a

subsequent election in 2014, and future elections every four years

thereafter?

96 [95 Op. Att’y

For the reasons set forth below,1 it is our opinion that:

1 – A Cecil County charter may provide for staggered terms for

members of a County Council.

2 – On the other hand, a County charter may supplant the

current local law and dispense with staggered terms for members of

a County Council.

3 – A Cecil County charter may provide for the election of a

County Executive in 2012 and every four years thereafter.

4 – Alternatively, a County charter may provide for the

initial election of a County Executive in 2012, a subsequent

election in 2014, and future elections every four years thereafter.

I

Background

Cecil County is currently governed by a five-member Board of

County Commissioners. Public Local Laws of Cecil County

(“PLL”), §15-1. The County Commissioners are each elected at

large, although each Commissioner is required to reside in a

different district. PLL §15-2.A and B. The terms of the five

Commissioners are staggered – two Commissioners are elected in

the year of the presidential election, while three are elected in

the year of the gubernatorial election. PLL §15-2.D.

The staggered terms of the Commissioners are permitted by

an exception to the general rule of Article XVII of the

State Constitution. The Fewer Elections Amendment generally

requires that all State and county officers be elected every four

years as part of the gubernatorial election. Maryland Constitution,

Article XVII, §2. However, there is an exception in the

Constitution for Cecil County:

1

In compliance with our policies concerning opinion requests from

local governments, you have provided the analysis of the Charter Board’s

counsel in two letters. Letter of Joyce Bowlsbey to Attorney General

Douglas F. Gansler (January 10, 2010); Letter of Victor K. Tervala,

Esquire, to Assistant Attorney General Robert N. McDonald (April 5,

2010). We have reviewed the information you have provided. We agree

with the conclusions of your counsel and elaborate in this opinion on the

reasons why.

Gen. 95] 97

Sections 1, 2, 3, and 5 of [the Fewer Elections

Amendment] do not apply or refer to ... the

Board of County Commissioners for Cecil

County.

Maryland Constitution, Article XVII, §7(2). This exception was

passed by the Legislature in 1999 and ratified by the voters in the

2000 election. Chapter 119, Laws of Maryland 1999. Upon

ratification, companion legislation creating staggered terms for the

Commissioners became effective. Chapter 380, Laws of Maryland

1999, later amended by Chapter 95, Laws of Maryland 2002, and

codified in PLL §15-2.D.

II

Analysis

Two of the Charter Board’s questions concern election of the

members of a prospective County Council under a new charter; two

questions concern election of a prospective County Executive.

A. County Council

The Charter Board has asked whether the staggered terms that

currently apply to the Cecil County Commissioners may be applied

to the members of a new County Council created under a charter.

This question is readily answered by reference to a provision of the

Maryland Constitution that concerns the adoption of home rule

charters by counties. That section provides, in relevant part:

Every charter so formed shall provide for an

elective legislative body in which shall be

vested the law-making power of said ...

County. Such legislative body ... in any

county shall be known as the County Council

of the County. The chief executive officer, if

any such charter shall provide for the election

of such executive officer, or the presiding

officer of said legislative body, if such charter

shall not provide for the election of a chief

executive officer, shall be known ... as the

President or Chairman of the County Council

of the County, and all references in the

Constitution and laws of this State to ... the

County Commissioners of the Counties, shall

98 [95 Op. Att’y

be construed to refer to ... the President or

Chairman and County Council herein

provided for whenever such construction

would be reasonable....

Maryland Constitution, Article XI-A, §3 (emphasis added).

Under this section, the reference to the County Commissioners

of Cecil County in Article XVII, §7(2) – the exception to the Fewer

Elections Amendment – would be construed to apply to a Cecil

County Council created by a new charter, if such a construction

would be reasonable. In our view, it would be reasonable to

construe this exception, which the General Assembly and the voters

of the State have authorized for the current governing body of the

County, to apply to the new governing body created when the voters

adopt charter home rule. Nothing in the legislative history of the

exception suggests otherwise.

The Charter Board has also asked whether a new charter could

dispense with staggered terms. The Cecil County exception in the

Fewer Elections Amendment of the State Constitution authorizes,

but does not mandate, the election of the County governing body on

a staggered schedule. The current staggered terms for County

Commissioners are set forth in a public local law that was enacted

by the General Assembly coincident with the constitutional

exception. However, given the lack of any public general law

governing the terms of Cecil County’s governing body, the proposed

charter may deviate from the current local law. Specification of the

terms of the local governing body clearly relate to the “form and

structure” of local government and are thus appropriately part of a

charter. See Save Our Streets v. Mitchell, 357 Md. 237, 248, 743

A.2d 748 (2000); Cheeks v. Cedlair Corp., 287 Md. 595, 606-7, 415

A.2d 255 (1980). Accordingly, a new charter could change the

staggering of terms, or eliminate it altogether.2

B. County Executive

The Charter Board has asked whether the exception to the

Fewer Elections Amendment for the Cecil County Commissioners

2

If the voters of Cecil County were to adopt charter home rule, the

County Council could formally repeal the inconsistent public local law

provisions under authority derived directly from Article XI-A of the State

Constitution. See City of Annapolis v. Anne Arundel County, 347 Md. 1,

15, 698 A.2d 523 (1997).

Gen. 95] 99

would extend to a County Executive created under a new charter.

More particularly, the Charter Board wishes to know whether the

charter could provide for the County Executive to be elected in

presidential election years – i.e., 2012, and every four years

thereafter. As indicated in the previous section, under Article XI-A,

§3, of the State Constitution, references to County Commissioners

in the State Constitution are to be construed to refer to a chief

executive officer of a county under a charter, as well as to a county

council, if such a construction would be reasonable. In our view,

such a construction would be reasonable for the same reasons set

forth above with respect to the prospective County Council.

In the alternative, the Charter Board asks whether a charter

may provide for the initial election of a County Executive in 2012

(presidential election year) as a transitional measure, a subsequent

election in 2014 (gubernatorial election year), and future elections

every four years thereafter. Even if our conclusion above is

incorrect and a County Executive would be subject to the Fewer

Elections Amendment, the charter may still provide for this scenario.

The charter, in effect, would provide for a special election with

respect to the County Executive’s initial term. The Court of Appeals

has held that a charter may provide for such an initial special

election as part of the transition to charter home rule. See County

Commissioners for Montgomery County v. Supervisors of Elections,

192 Md. 196, 63 A.2d 735 (1949) (new Montgomery County charter

could provide for an initial special election for the new County

Council in an off-year shortly after adoption of the charter and

subsequent regular elections in the years specified by Article XVII

of the State Constitution).

III

Conclusion

In sum, it is our opinion that:

1 – A Cecil County charter may provide for staggered terms for

members of a County Council.

2 – On the other hand, a County charter may supplant the

current local law and dispense with staggered terms for members of

a County Council.

100 [95 Op. Att’y

3 – A Cecil County charter may provide for the election of a

County Executive in 2012 and every four years thereafter.

4 – Alternatively, a County charter may provide for the initial

election of a County Executive in 2012, a subsequent election in

2014, and future elections every four years thereafter.

Douglas F. Gansler

Attorney General

Robert N. McDonald

Chief Counsel

Opinions and Advice*

*Assistant Attorney General William R. Varga contributed

significantly to the preparation of this opinion.