Maryland Attorney General Opinion 106OAG067

Gen. 67] 67

PUBLIC OFFICERS AND EMPLOYEES

EDUCATION – WHETHER A STATE SUPERINTENDENT OF

SCHOOLS APPOINTED TO A VACANCY IN THE MIDDLE OF A

TERM SERVES FOR THE REMAINDER OF THE UNEXPIRED

TERM

April 21, 2021

Clarence C. Crawford

President, Maryland State Board of Education

You have asked for an opinion of the Attorney General on

whether, when the current State Superintendent of Schools (“State

Superintendent”) steps down on June 30, 2021, the Maryland State

Board of Education (the “State Board”) can offer a new State

Superintendent a full four-year term beginning on July 1, 2021,

instead of only the remaining three years in the term of the current

State Superintendent, which began on July 1, 2020. Although you

acknowledge in your request that § 2-302 of the Education Article

seems to provide that the State Superintendent’s successor must be

appointed to complete the remaining three years of the current

Superintendent’s term, you have asked us to consider whether the

State Board can nonetheless offer a full four-year term to the new

State Superintendent to begin on July 1, 2021. In the event that we

conclude that the State Board cannot offer a full four-year term to

the new State Superintendent, you have also asked for suggestions

as to legislative language that would permit the State Board to offer

a new full term to a State Superintendent hired to fill a vacancy in

the middle of a term.

For the reasons explained below, it is our opinion that,

assuming that the current State Superintendent resigns or retires in

June of 2021 before the expiration of her four-year term, the State

Board cannot offer the next State Superintendent a new four-year

term starting July 1, 2021. Rather, the statute expressly provides

that “[t]he State Board shall appoint a new State Superintendent

to fill a vacancy in that office for the remainder of the unexpired

term” and does not provide for any exceptions to that rule. Md.

Code Ann., Educ. (“ED”) § 2-302(e). Thus, the next appointee

must be appointed to serve the remainder of the current State

Superintendent’s term. While it is beyond our role to tell the

General Assembly the precise language that it should use if it wants

to permit the State Board to give a full four-year term to a State

Superintendent appointed to fill a mid-term vacancy under these

68 [106 Op. Att’y

circumstances, we are able to provide examples of statutes that

could be interpreted in that manner.

I

Background

Maryland law governing the appointment and term of the

State Superintendent dates back nearly 200 years. In 1825, the

General Assembly passed a law providing that “there shall be

constituted and appointed by the governor and council, an officer

to be known and distinguished as the superintendent of public

instruction.” 1825 Md. Laws, ch. 162, § 1. Almost forty years

later, during the Civil War, the delegates to the Constitutional

Convention of 1864 wrote the office of the State Superintendent

into Maryland’s Constitution. Although ultimately short-lived,

Article VIII, § 1 provided that “[t]he Governor shall, within thirty

days after the ratification by the people of this Constitution,

appoint, subject to the confirmation of the Senate, at its first session

thereafter, a State Superintendent of Public Instruction, who shall

hold his office for four years and until his successor shall have been

appointed and shall have qualified.” Md. Const., Art. VIII, § 1

(1864). Section 4 of the same Article required that the General

Assembly, at its first session after adoption of the 1864

Constitution, “provide a uniform system of Free Public Schools[.]”

Thus, in 1865, the Legislature established that system and provided

that supervision and control of public instruction would be vested

in a State Board of Education and “a State Superintendent of Public

Instruction, appointed by the Governor, subject to the confirmation

of the Senate.” 1865 Md. Laws, ch. 160.

In 1867, a constitutional convention met again and drafted a

fourth version of Maryland’s Constitution. This Constitution,

which was ratified in September 1867, contained a far less specific

education clause, leaving it to the Legislature to determine

questions of control and supervision. That new provision directed

that the General Assembly, at its first session after adoption of the

Constitution, “establish, throughout the State, a thorough and

efficient system of free public schools.” Md. Const., Art. VIII, § 1

(1867). The Constitution also provided that “[t]he system of public

schools, as now constituted, shall remain in force until the end of

the said first session of the General Assembly, and shall then

expire, except so far as adopted, or continued, by the General

Assembly.” Md. Const., Art. VIII, § 2. These same provisions are

contained in our current Constitution.

Gen. 67] 69

Freed from any specific constitutional prescriptions regarding

the structure, organization, and control of the public education

system, the General Assembly, in 1868, designed a body of public

education law that committed control entirely to local school

districts; there was no centralized supervision role for the State.

See 1868 Md. Laws, ch. 407 (providing that “[e]ducational matters

affecting a County shall be under the control of a Board of County

School Commissioners”). This scheme of local control lasted for

a few years, until 1872, when the General Assembly passed a law

that gave some control and supervision back to the State. See 1872

Md. Laws, ch. 377 (providing that “[e]ducational matters affecting

the State and the general care and supervision of public education

shall be entrusted to a State Board of Education”); see also Md.

Ann. Code, Art. 27, §§ 2-4 (1879) (providing supervisory roles for

a state board of education, a board of county school commissioners,

and district school trustees).

The role of State Superintendent reappeared in the State’s

education laws in 1900, when the General Assembly amended what

was by then Article 77 of the Maryland Code. The amendment

provided that “the Governor, by and with the advice and consent of

the Senate, shall appoint a competent person as Superintendent of

Public Education for the State of Maryland, who shall serve for a

term of four years, beginning on the first Monday in May next

ensuing his appointment, and until his successor has been

appointed and qualified according to law.” 1900 Md. Laws, ch.

428.

In 1914, the Legislature created a commission to conduct a

survey of public schools in Maryland. 1914 Md. Laws, ch. 844.

The commission was “directed to report its findings, with

recommendations to the Governor, which report shall be

transmitted by the Governor to the General Assembly at its session

of 1916.” Id. The resulting report made recommendations for

changes to the State Superintendent provisions. See Abraham

Flexner & Frank P. Bachman, Public Education in Maryland, A

Report to the Maryland Educational Survey Commission 22-29

(1916) (“Flexner & Bachman Report”). In particular, the report

noted that the current law provided that the State Superintendent

“holds office for four years—as does the Governor who appoints

him[,]” id. at 22, and recommended that the State Superintendent,

“who is the state’s educational executive, should be chosen, not by

the Governor, but by a board as far removed from political

influences as possible, for a term either indefinite or long enough

to avoid danger of political complications.” Id. at 23.

70 [106 Op. Att’y

Following the Flexner & Bachman Report, the General

Assembly adopted the commission’s recommendation that the

Governor be stripped of appointment authority but declined to alter

the length of the State Superintendent’s term. See 1916 Md. Laws,

ch. 506 (“The state superintendent of schools shall be appointed by

the state board of education for a term of four years. . . . In case of

vacancy due to any cause, the state board of education shall fill the

vacancy, and the appointment shall be for the unexpired term, and

until a successor shall qualify.”). This amendment also represented

the first time that the General Assembly explicitly addressed what

was to occur in the event of a vacancy in the position of the State

Superintendent.

The provision continued essentially unaltered in the Maryland

Code until 1969. See, e.g., Md. Ann. Code, Art. 77, § 27 (1939).

In that year, the Maryland General Assembly amended Article 77

by specifying that the State Superintendent’s four-year term was to

run “from the first day of July next succeeding his appointment.”

1969 Md. Laws, ch. 405. This change was recommended in the

1968 Report of the School Law Revision Commission. See Report

of the School Law Revision Commission 35 (Jan. 1, 1968) (“1968

Report”) (“This section establishes the beginning date of the term

of office of the State Superintendent of Schools. At present the law

is silent on the subject.”); see also 27 Opinions of the Attorney

General 113, 115-16 (1942) (advising that, before the 1969

revision, the State Superintendent’s term was to begin on June 1

every four years, starting from June 1, 1916).

Finally, in 1978, Article 77 was repealed and recodified as the

Education Article. See 1978 Md. Laws, ch. 22. The provisions

governing the appointment of the State Superintendent remained

substantively the same, with only minor changes for style and

clarity. See id. (Revisor’s Note). Under the relevant provision as

it exists today, “[t]he State Superintendent shall be appointed by

the State Board for a term of 4 years beginning on July 1 after the

Superintendent’s appointment and serves until a successor is

appointed and qualifies,” ED § 2-302(a), and “[t]he State Board

shall appoint a new State Superintendent to fill a vacancy in that

office for the remainder of the unexpired term,” ED § 2-302(e).

II

Analysis

Your question is one of statutory interpretation. Therefore,

we must determine the intent of the General Assembly in enacting

the current law governing the appointment and term of the State

Gen. 67] 71

Superintendent. Here, the relevant question is whether the General

Assembly intended that a State Superintendent appointed to fill a

mid-term vacancy be appointed to serve the remainder of the

previous Superintendent’s term or intended that a State

Superintendent would always begin a full four-year term on July 1

following the appointment regardless of whether the previous

Superintendent had been in the middle of a term.1

To ascertain the intent of the General Assembly, we first look

to the words of the statute and determine, if possible, their plain

meaning. Kushell v. Department of Nat. Res., 385 Md. 563, 576

(2005). “In construing the plain language, ‘[a] court may neither

add nor delete language so as to reflect an intent not evidenced in

the plain and unambiguous language of the statute; nor may it

construe the statute with forced or subtle interpretations that limit

or extend its application.’” Id. at 576-77 (quoting Price v. State,

378 Md. 378, 387 (2003)). If the language of the statute is

unambiguous, then effect must be given to the statute as written.

Id. at 577.

Turning to the language of ED § 2-302, the Legislature made

clear that a State Superintendent appointed to fill a mid-term

vacancy serves the remainder of the previous Superintendent’s

term. The General Assembly explicitly provided that, when a

vacancy occurs during a regular four-year term, “[t]he State Board

shall appoint a new State Superintendent to fill a vacancy in that

office for the remainder of the unexpired term.” ED § 2-302(e).

Such explicit language leaves no room for doubt that such an

appointee is to serve the remainder of the predecessor’s unexpired

term, rather than receiving a new four-year term. Cf. Sansbury v.

Middleton, 11 Md. 296, 313-14 (1857) (holding that a clerk

appointed to fill a mid-term vacancy was entitled to a full term but

contrasting the provision at issue there from other constitutional

provisions containing language, like that at issue here, explicitly

limiting service of mid-term successors to the remainder of an

unexpired term); accord Wilson v. Shaw, 188 N.W. 940, 943 (Iowa

1922) (“When a person is appointed to fill a vacancy for an

1

In some cases, courts frame this type of question as whether the term

is intended to run with the office (i.e., a new term of office begins every

four years on July 1) or with the officer (i.e., a new four-year term begins

with the appointment of a new officer, regardless of how long the

previous officer in that position served). See, e.g., People v. Nickel, 100

P. 1075, 1076 (Cal. Ct. App. 1909). For clarity and precision, we will

focus on the specific question asked rather than using this shorthand

here.

72 [106 Op. Att’y

unexpired term, the unambiguous meaning is that he is to hold for

the same term as the person whose place he takes.”); 67 Cal. Op.

Att’y Gen. 220 (1984) (“To hold that the terms run with the officer

would have the additional effect of rendering meaningless the

language . . . providing that vacancies will be filled only for the

balance of the unexpired term.”).

Although no Maryland appellate court has yet decided this

question under ED § 2-302, at least one case addressed a similar

provision. See Ash v. McVey, 85 Md. 119 (1897). That case

involved the appointment of George Biddle, in 1892, to a term on

the Board of School Commissioners for Cecil County. According

to the statute as it existed at the time, Mr. Biddle’s four-year term

began on the first day in August following his appointment. See Md.

Ann. Code, Art. 77, § 6 (1898 Suppl.), as amended by 1892 Md.

Laws, ch. 341. Mr. Biddle resigned, however, in December of

1892, during a recess of the Legislature. The statute provided that,

in the event of such a vacancy during a recess of the General

Assembly, “the Governor shall have power to appoint a qualified

person to fill the vacancy for the unexpired term[.]” Md. Ann.

Code, Art. 77, § 25 (1898 Suppl.) (emphasis added). The Governor

subsequently appointed George Ash to fill the vacancy, and the

Senate confirmed Mr. Ash at the next session of the Legislature, in

January of 1894. Then, in January of 1896, presumably in

anticipation of the upcoming expiration of Mr. Ash’s term on July

31, 1896, the Governor appointed S.G. Bye as Mr. Ash’s successor.

However, the Senate failed to confirm the new appointee before it

adjourned. Eventually, at the end of the four-year term that had

originally begun with Mr. Biddle, the Governor appointed George

McVey to succeed Mr. Ash.

The dispute before the Court of Appeals was essentially about

who had the right to occupy the seat on the Cecil County Board of

School Commissioners—Mr. Ash or Mr. McVey. The precise

question, which involved a constitutional provision governing

recess appointments, was different than the question you ask here,

but the Court’s interpretation of Article 77, §§ 6 and 25 in the

course of answering that other question is nevertheless instructive.

The Court found that it was “clear” that the appointment of Mr.

Ash as a school commissioner in December of 1892 was for the

unexpired term of his predecessor. Ash, 85 Md. at 119. Looking

at Article 77, § 25’s provision that “the governor shall have power

to appoint a qualified person to fill the vacancy for the unexpired

term,” the Court said that “[t]he plain meaning of this section of the

statute is that a person appointed to fill a vacancy holds for the same

term as the person whose place he takes.” Id.

Gen. 67] 73

Given the similarities between the statutory provisions at

issue in Ash and the statute here, that case suggests that the plain

meaning of ED § 2-302(e) is that “a person appointed to fill a

vacancy holds for the same term as the person whose place he

takes.” Ash, 85 Md. at 119. That conclusion is also consistent with

our characterization, in a 1942 opinion, of an earlier version of

what is now ED § 2-302 as establishing fixed terms for the State

Superintendent that ran every four years from a specific date in

1916. See 27 Opinions of the Attorney General at 115-16

(involving the version of the statute in place before the Legislature

expressly provided that the Superintendent’s term was to begin on

July 1 after the Superintendent’s appointment).

Although the language of ED § 2-302 is plain and we need

not go any further, we have also examined the legislative history of

the enactment as a “check” on the reading of a statute’s plain

language, Washington Gas Light Co. v. Maryland Pub. Serv.

Comm’n, 460 Md. 667, 686 (2018), and that history is consistent

with our interpretation. Beginning in 1900, the Legislature specified

that the State Superintendent’s term was to be four years, 1900 Md.

Laws, ch. 428, and then further amended the State Superintendent

provisions in 1916 to vest appointment power with the State Board

rather than the Governor, 1916 Md. Laws, ch. 506. The 1916

amendment was the result of a report that had recommended that

the State Superintendent be chosen “by a board as far removed

from political influences as possible, for a term either indefinite or

long enough to avoid danger of political complications.” Flexner

& Bachman Report at 23.

The 1916 amendment was also the first time that the

Legislature specified that, in case of a vacancy in the office of the

State Superintendent, an appointment to fill the vacancy “shall be

for the unexpired term,” which makes sense given the purpose of

the amendment to better insulate the State Superintendent from

politics. Id. After all, an office of State Superintendent that has a

defined, predictable term is consistent with an intention to keep that

office removed from political whims and influences. No matter

who holds the governorship—and which Governor’s appointees sit

on the State Board of Education—the State Superintendent holds a

four-year term that will begin and end on the same fixed dates and,

in the event of a vacancy, the new appointee simply fills out the

predecessor’s term. Such design presumably makes it more difficult

and less tempting for a Governor (through the Governor’s

appointees on the State Board) to try to force the ouster of a State

Superintendent before the Superintendent’s term ends and also

74 [106 Op. Att’y

provides a sense of stability within the leadership of Maryland’s

public education system.2 Thus, since at least 1916, the Legislature

has, by the words of the statute, indicated a clear intent that a State

Superintendent appointed to fill a mid-term vacancy is appointed to

serve the remainder of the previous Superintendent’s unexpired term.

The history of the statute is entirely in line with its plain language.

Finally, the historical practice under the statute aligns with

our interpretation of ED §§ 2-302(a) and 2-302(e). Starting in

1900—when the Legislature reintroduced the role of the State

Superintendent—there have been eleven individuals who have

served as State Superintendent for either a full or interim term, or

both, and the terms have run every four years from that first

appointment.

M. Bates Stephens served as State Superintendent from 1900

until 1920, i.e., five four-year terms. See Maryland Manual 1900

at 155 (listing M. Bates Stephens as State Superintendent and

indicating his first term expired in 1904); Maryland Manual 1920

at 127 (listing Mr. Stephens as State Superintendent). Albert S.

Cook, his successor, also served for a total of twenty years, or five

four-year terms. See Maryland Manual 1921 at 16 (listing Albert

S. Cook as State Superintendent). In 1940, Thomas G. Pullen, Jr.

was appointed State Superintendent and held the post until 1964,

or for six four-year terms. James A. Sensenbaugh followed from

1964 until 1976—three four-year terms. Starting in 1976, David

W. Hornbeck also served three four-year terms as State

Superintendent, from 1976 until 1988. See generally Editorial, Our

View: The Way Md. Picks Its State Superintendent Has Worked for

100 Years, Balt. Sun, Feb. 19, 2016, at 16A (detailing history of

State Superintendent appointments beginning with Mr. Cook,

including lengths of terms).

The same has been true more recently even when some State

Superintendents resigned before the end of their terms. Joseph L.

Shilling was appointed in 1988 and resigned three years into his

four-year term. See Amy Goldstein, Md. Selects School Chief After

One Interview; Ex-Hornbeck Aide Schilling [sic] to Succeed Him,

2

Members of the State Board of Education are appointed by the

Governor, with the advice and consent of the Senate, ED § 2-202(a), and

serve staggered terms of four years, ED § 2-202(d)(1). Thus, an

incoming Governor does not have the power to immediately appoint all

of the members of the State Board. The statute also provides limited

reasons for the State Board to remove a State Superintendent:

immorality, misconduct in office, insubordination, incompetency, and

willful neglect of duty. ED § 2-302(d).

Gen. 67] 75

Wash. Post, June 28, 1988. The State Board appointed Nancy

Grasmick to fill the vacancy for the remainder of Dr. Shilling’s

term, and after being reappointed she then served until 2011, when

she resigned the post three years into her fifth four-year term. Liz

Bowie et al., Grasmick Announces She’ll Retire in June, Balt. Sun,

Mar. 31, 2011, at 1A. Bernard J. Sadusky was then appointed

interim State Superintendent for the remainder of Dr. Grasmick’s

term, and in 2012, Lillian M. Lowery was appointed to a full four-

year term. Liz Bowie, Lowery to Head State’s Schools, Balt. Sun,

Apr. 21, 2012, at 1A. Dr. Lowery resigned in 2015. Jack R. Smith

then served as interim State Superintendent from 2015 until the end

of Dr. Lowery’s four-year term in 2016. Finally, in 2016, the

current State Superintendent, Karen B. Salmon, was appointed. Liz

Bowie, Salmon to Lead State’s Schools: Ex-Administrator on

Shore Appointed as Md. Superintendent, Balt. Sun, May 25, 2016,

at 1. Her four-year term ended in 2020. As you have indicated in

your request, though she was appointed to another four-year term

in 2020, she is expected to resign and leave the position on June

30, 2021.

Thus, it appears that the State Board has consistently adhered,

in practice, to § 2-302(e)’s requirement that a State Superintendent

appointed to fill a vacancy that occurs during a four-year term is

appointed for the unexpired portion of that four-year term. Given

all of the above—especially the unambiguous language of the

statute—it is clear that ED § 2-302 does not permit the State Board

to offer a full four-year term to the new State Superintendent

appointed to fill the mid-term vacancy that the State Board

anticipates will occur in June of this year.3

3

To be clear, there might be situations when the State Board could

appoint someone to fill a mid-term vacancy as State Superintendent (for

the remainder of the unexpired term) and also, at the same time,

prospectively appoint that same person to the full four-year term that is

to begin after the end of that unexpired term. It is generally “permissible

for an appointing authority to make appointments prospectively, i.e., to

announce and put in motion the appointment of a person to fill a

prospective vacancy before the vacancy actually occurs, so long as the

vacancy will, in fact, exist when the new appointment becomes

effective” and so long as “the vacancy to be filled by the prospective

appointment [is] certain to exist while the appointing authority is still

empowered to fill the vacancy.” Bryan v. Makosky, 380 Md. 603, 611-

12 (2004). The statute governing the appointment of the State

Superintendent also appears to contemplate that the State Board can

make prospective appointments under at least some circumstances, given

76 [106 Op. Att’y

You have provided us with four reasons why you nonetheless

believe the law should afford the State Board the flexibility to offer

the next State Superintendent a full four-year term instead of the

three years remaining on Dr. Salmon’s current term. First, you note

that the current State Superintendent’s tenure was extended

because of the COVID-19 pandemic, in order to allow her to

provide continuity and stable leadership to the Maryland State

Department of Education and the State Board. Second, you have

been advised to expect a “highly competitive search environment”

with more superintendent vacancies than usual, and you point out

that “top candidates tend to favor longer employment terms.”

Third, you state that, because Maryland is facing an unprecedented

education crisis due to the pandemic, the next State Superintendent

must be an “exceptional educational executive leader,” and you

worry that, without such a leader, many students will have to live

with lifetime economic and societal consequences of their learning

loss. Finally, you have indicated that, if Maryland does not

accelerate learning in the wake of the pandemic, the State will

suffer economic costs, including “a significant drop in GDP and

that it provides for a term “beginning on July 1 after the Superintendent’s

appointment,” ED § 2-302(a) (emphasis added)—a provision which

makes sense only if the State Board can make the appointment at some

point before the vacancy that is to occur on July 1. However, the State

Board cannot make a prospective appointment this far in advance to a

term that does not begin until July 1, 2024. Under the common law rule,

“a prospective appointment may not be made to fill a vacancy that is not

certain to occur during the term of office of the appointing authority.”

Bryan, 380 Md. at 612. Here, it appears that all of the members of the

current State Board have terms that will expire before July 1, 2024. It is

beyond the scope of this opinion to determine exactly when a multi-

member body like the State Board becomes the “appointing authority”

empowered to fill a prospective vacancy, see Letter from Sandra Benson

Brantley, Assistant Attorney General, to Del. Pamela D. Beidle at 3 (Apr.

26, 2016) (summarizing differing views of the law on that issue), but it

surely cannot qualify when all its members have terms of office that

expire before the date the vacancy is certain to occur. And even if that

were not the case, ED § 2-302(a) arguably permits the Board to make a

prospective appointment only in the year before the vacancy is certain to

arise—i.e., not before July 2, 2023, for a term that is to begin on July 1,

2024—even when the common law would allow the appointment.

Otherwise, the State Superintendent could not begin the term on the July

1 “after the Superintendent’s appointment,” as is contemplated by the

statute. Of course, nothing prevents the State Board, once it has the

power to do so, from reappointing the new State Superintendent to the

full four-year term that will begin on July 1, 2024. But it cannot bind

itself to do that now.

Gen. 67] 77

decreased competitiveness in [its] ability to attract and maintain

high paying industries.”

None of those reasons, however, allow for an exception to the

plain language of the statute. Though it is true that “the plain-

meaning rule is not rigid[,]” Kaczorowski v. Mayor & City Council

of Baltimore, 309 Md. 505, 513 (1987), the types of considerations

that you have raised are generally relevant only when the statute is

“susceptible of more than one meaning.” Id. (quoting Tucker v.

Fireman’s Fund Ins. Co., 308 Md. 69, 75 (1986)). That is not the

case here, as the statutory language is clear and does not admit of

any exceptions. In light of the plain language of the statute, the

policy concerns you cite are more properly directed to the General

Assembly.

As a final matter, you ask for suggestions as to how the statute

could be amended to permit the State Board to offer a new, full

term to a State Superintendent hired to fill a vacancy in the middle

of a term. There are likely several different ways that such a change

could be accomplished, and it is beyond our role to favor any one

approach over another from a policy perspective. Some possible

approaches include that ED § 2-302(e) could be amended to

expressly provide that a State Superintendent appointed to fill a

mid-term vacancy is appointed for a full term of four years, to

expressly allow for exceptions to the statute’s current mid-term

vacancy rule in certain specified circumstances, or to expressly

provide for the appointment of an interim State Superintendent who

serves only until the next July 1, when the State Board is to appoint

a State Superintendent to a full four-year term. Cf. ED § 4-201(d)

(providing, as to county superintendents of schools, that “[i]f a

vacancy occurs in the office of county superintendent, the county

board shall appoint an interim county superintendent who serves

until July 1 after the interim county superintendent’s

appointment”).4

Alternatively, ED § 2-302(e) could be deleted in its entirety,

and the statute could be amended to look more like other provisions

that have been interpreted to afford each new appointee a full term

regardless of whether the predecessor in that position had been in

the middle of a term. See, e.g., Letter from Patrick B. Hughes,

4

We do not purport here to definitively interpret ED § 4-201 in its

entirety, as that would be outside the scope of your opinion request. We

merely cite the provision to point out an example of alternative language

that the General Assembly might consider using.

78 [106 Op. Att’y

Chief Counsel for Opinions & Advice, to Christopher Mincher,

Deputy Legal Counsel to the Governor (Feb. 14, 2020) (“Hughes

Letter”) (interpreting §§ 14-102(c) and 14-104 of the Criminal

Procedure Article to provide that each new State Prosecutor is

appointed for a term of six years and is not required to serve out

the unexpired portion of the predecessor State Prosecutor’s six-

year term); cf. Sansbury, 11 Md. at 313-17 (interpreting a

constitutional provision stating that, in case of a vacancy in the

office of clerk of the circuit court, a judge shall appoint a clerk to

serve until the next election, and concluding that the clerk

subsequently elected was entitled to a full six-year term); Marshall

v. Harwood, 5 Md. 423, 431-32 (1854) (examining a constitutional

provision stating that the State Librarian was to be elected by the

Legislature for a term of two years and concluding that a librarian

elected after the office became vacant four months into his

predecessor’s term was entitled to hold office for a full two years

after the successor’s election, not the remainder of the prior

librarian’s term, because there is “no intimation in express terms in

the constitution, nor can we infer by analogy from any of its other

provisions, that it was the duty of the legislature to regard the term

of . . . the former incumbent, as still subsisting at the time of the

election of [the current librarian]”).

More specifically, when a provision does not expressly state

that the person appointed to fill a mid-term vacancy serves for the

remainder of the unexpired term and also does not imply as much

by, for example, fixing the dates for the beginning or end of the

term or providing for staggered terms, the general rule seems to be

that the person appointed to that mid-term vacancy may receive a

full term. See, e.g., Marvel v. Camden County, 57 A.2d 455, 458

(N.J. Ct. Err. & App. 1948) (“Where no time is fixed for the

beginning or end of the period during which a public office is to be

occupied and the duration of such period is alone designated, a

person selected to fill a vacancy in such office may serve the full

term and not merely the unexpired balance of the prior incumbent’s

term.” (internal quotation omitted)); State v. Malone, 174 S.W.

257, 262 (Tenn. 1915) (“[T]he rule is general that when the length

of the term, merely, is fixed, with no set time for its beginning, or

no date for its ending, and no reference to an unexpired term, or to

a vacancy in the term of office, as distinguished from a vacancy in

the office itself, it is considered that upon the happening of a

vacancy the office reverts to the people, or sovereign, and when

again vested it is not for an unexpired term, but for the full term.”);

Clark v. State, 59 So. 259, 262 (Ala. 1912) (explaining that,

generally, a mid-term appointee receives a full term when “no

express provision is made for filling vacancies, or where provision

Gen. 67] 79

is made for filling vacancies by appointment, but without fixing the

duration of authority of persons so appointed” and that, generally,

a mid-term appointee serves only for the unexpired portion of the

predecessor’s term when the statute “expressly provide[s] for, or

necessarily contemplate[s] the existence and filling of, unexpired

terms”); Nickel, 100 P. at 1075; Hughes v. Buckingham, 5 Smedes

& M. 632 (Miss. 1846); 70 Cal. Op. Att’y Gen. 168 (1987); 29 Or.

Op. Att’y Gen. 58 (1958); 67 C.J.S. Officers § 183; 63C Am. Jur.

2d Public Officers and Employees § 146; Throop, Public Officers

§§ 319, 320 (1892).5

That is not an absolute rule, of course. See McQuillin,

Municipal Corporations § 12:164 (declining to lay down a

definitive rule “as to the duration or length of the term of one

appointed or chosen to fill a vacancy in office”).6 “[W]hen dealing

with an office created by the General Assembly, the question will

always be one of legislative intent, and it will thus always be

necessary to examine all aspects of the statutory scheme to

determine what the General Assembly intended with respect to the

particular office at issue.” Hughes Letter at 6.

5

Although our Office issued three opinions in the early 1900s

concluding that county commissioners appointed to fill a vacancy in the

middle of a term under a particular statute served for the unexpired term,

those opinions did not provide much in the way of analysis for why that

was the case, and we do not read them as setting an overarching rule for

when mid-term appointees serve for the unexpired term of their

predecessors or for a new, full term. See 8 Opinions of the Attorney

General 132 (1923); 2 Opinions of the Attorney General 345 (1917); 2

Opinions of the Attorney General 347 (1917). In any event, for what it

is worth, the result in those opinions seems consistent with the general

rule stated in the above paragraph, in that the county commissioners

appear to have been serving staggered terms at the time, which (under

the general rule) implies that a person appointed to a mid-term vacancy

is to serve for the remainder of the unexpired term. See 1894 Md. Laws,

ch. 305 (Frederick County); 1892 Md. Laws, ch. 249 (Caroline County);

1892 Md. Laws, ch. 569 (Charles County). It also appears that, in the

1923 opinion, the Attorney General may have analyzed the wrong

statute, as there was a provision in the Public Local Laws that provided

a special procedure for filling mid-term vacancies in the office of county

commissioner in Caroline County. See Code of Public Local Laws of

Maryland, Art. 6, § 100 (1930).

6

We do not discuss here, for example, a statute that expressly

provides for a temporary appointment until an appointee can be chosen,

either for the remainder of an unexpired term or a full, new term.

80 [106 Op. Att’y

We can say, however, that it is more likely that a mid-term

appointee would be entitled to a full term if the statute does not

expressly provide that an individual appointed to fill a vacancy

serves for the unexpired term, does not fix the dates for the

beginning or end of the term, does not provide for staggered terms,

and does not refer to a vacancy in the term, as opposed to a vacancy

in the office.7 For example, Title 14 of the Criminal Procedure

Article provides that “[t]he term of the State Prosecutor is 6 years,”

Md. Code Ann., Crim. Proc. (“CP”) § 14-102(c)(2), and that when

a vacancy in the office occurs, the State Prosecutor Selection and

Disabilities Commission must begin a search process for

prospective nominees, CP § 14-104(a), and nominate one or more

legally and professionally qualified candidates to the Governor, CP

§ 14-104(b)(2). That statutory scheme “does not include any

reference to unexpired terms and does not, either explicitly or

implicitly, fix the dates for the beginning or end of the term,” but

rather “merely fixes the duration of the term.” Hughes Letter at 3.

The statute also refers to a vacancy in the “position” of State

Prosecutor, rather than in the officer’s term. Id. at 5. Thus, based

on the precedent cited above, our Office advised that “a new State

Prosecutor appointed to fill a vacancy in the office is entitled to a

full six-year term, not just the remainder of an unexpired term.” Id.

at 5. If the General Assembly were to amend ED § 2-302 to look

more like the statute governing the State Prosecutor’s term,

7

We note that, under ED § 2-302(a), the General Assembly has

specified a fixed calendar date for the State Superintendent’s term to

begin—the first day of July. ED § 2-302(a). Even assuming that

subsection (e) of the statute were deleted, therefore, that might not by

itself make it clear that an appointee to a mid-term vacancy receives a

new full term. See, e.g., 67 C.J.S. Officers § 183 (“When the duration of

the term is fixed, and also the beginning or ending, or both, a vacancy, if

it occurs, is in the term of office as distinct from being in the office itself.

An appointment to fill such vacancy can be only for the unexpired

portion, and the successor does not serve an independent term of his or

her own.”). In the absence of subsection (e), there would likely be some

ambiguity in the statute. Although a fixed start date for a term generally

suggests that a mid-term appointee to a vacancy serves for the unexpired

portion of the term, subsection (a) says that a new State Superintendent

serves for a term of four years “beginning on July 1 after the

Superintendent’s appointment,” ED § 2-302(a) (emphasis added). That

language, in the hypothetical absence of subsection (e), could suggest

that each new appointee receives a full four-year term beginning on July

1 after the appointment. We have no need to definitively decide how

that hypothetical statute, without subsection (e), would be interpreted.

But it would be advisable for the General Assembly to be clearer about

its intent if it were to decide to provide each new mid-term appointee

with a full term.

Gen. 67] 81

therefore, the statute would likely be read to allow a State

Superintendent appointed to fill a mid-term vacancy to serve a full

four-year term.

III

Conclusion

In our opinion, under the statute as it currently exists, the State

Board may not offer a full four-year term to the new State

Superintendent who will be appointed to fill the anticipated

vacancy in the current State Superintendent’s four-year term.

Instead, assuming the current State Superintendent leaves office on

June 30, 2021, as expected, the State Board may only appoint a new

State Superintendent to serve the remaining three years of the

current State Superintendent’s term, and the statute does not allow

for any exceptions to that rule.

Brian E. Frosh

Attorney General of Maryland

Sara Klemm

Assistant Attorney General

Patrick B. Hughes

Chief Counsel, Opinions and Advice