Did serving on a Baltimore City park board or a Maryland county personnel board disqualify someone from serving on a judicial nominating commission?

Plain-English summary

The State Court Administrator asked the Attorney General whether a member of the Baltimore City Board of Recreation and Parks and a member of the Prince George's County Personnel Board held "an office of profit or trust under the Constitution or laws of this State," language that a 1982 gubernatorial Executive Order used to bar such officeholders from serving on Judicial Nominating Commissions. The opinion concluded that both positions qualified, meaning both office holders were barred from Commission service. It explained that the phrase "office of profit or trust" is a term of art rooted in the Maryland Constitution's Declaration of Rights and other provisions, long interpreted by the Court of Appeals to reach county and municipal officers, not just state officers, so long as the position exercises some portion of the state's sovereign power, regardless of whether the position pays a salary. Applying the traditional multi-factor test for a "public office," with special weight on whether the position exercises sovereignty and requires an oath, the opinion found that Baltimore City Charter provisions giving Board of Recreation and Parks members governmental authority over city parks, including police-type enforcement powers, made that unpaid position an "office of trust." It found the Prince George's County Personnel Board, whose members took an oath, received compensation, and exercised final, binding authority to decide personnel appeals as "the final administrative appeal authority for the county," to be a compensated "office of profit." Because the Executive Order's ban was written broadly to cover any office of profit or trust, without regard to whether the second position was actually incompatible with judicial nominating work, the opinion found both officeholders excluded regardless of any policy arguments to the contrary.

Currency note

This opinion was issued in 1983. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The opinion applied a specific 1982 gubernatorial Executive Order governing Judicial Nominating Commission eligibility, along with the Baltimore City Charter and Prince George's County Charter and Code provisions then in effect. Executive orders governing judicial nominating commissions, as well as the cited city and county charter and code provisions, are subject to amendment or replacement by later governors and local governments; verify the current Executive Order and current charter and code provisions before relying on any specific eligibility rule described here.

Common questions

Did a person have to be paid to hold a disqualifying "office of trust" under the Executive Order?
No, according to this opinion. It explained that an "office of trust" covers even uncompensated positions whose duties require the exercise of discretion, judgment, experience, and skill, distinguishing it from an "office of profit," which specifically requires that compensation be attached to the position, whether or not the individual officeholder actually accepts payment.

Why did an unpaid Baltimore City park board member count as holding a public office at all?
The opinion found that the Board of Recreation and Parks exercised real governmental authority under the Baltimore City Charter, including the duty to establish, maintain, and control city parks and to enforce park rules and share police-type jurisdiction over park sidewalks, functions Maryland courts had previously described as an exercise of "the sovereignty of the State," which is the most important test for whether a position is a public office.

Did it matter whether serving on the county Personnel Board actually created any real conflict of interest with serving on a Judicial Nominating Commission?
No, under this opinion's reading of the Executive Order. It found the order's ban on holding "any office of profit or trust" was written broadly, unlike narrower rules against holding two specifically "incompatible" positions, so it applied regardless of whether the two roles genuinely conflicted, following Maryland precedent holding that such broad dual-officeholding bans exist to prevent concentration of power and conflicts of interest generally, not just case-by-case incompatibility.

Background and statutory framework

The opinion read the Executive Order's "office of profit or trust under the Constitution or laws of this State" language as a term of art tracking similar phrases in the Maryland Constitution's Declaration of Rights, Articles 33 and 35, and in Article I, §9 and Article III, §11, provisions the Court of Appeals had long construed to reach county and municipal officers exercising a portion of state sovereignty, not merely state-level officers, citing cases like Truitt v. Collins and Hetrich v. County Commissioners of Anne Arundel Co. The opinion applied the traditional five-factor public office test from Board of Supervisors of Elections v. Attorney General (a position created by law with continuing duties, performing an important public duty, exercising sovereign power, having a definite term with oath and bond, and possessing dignity and importance), while emphasizing, per Gary v. Board of Trustees and Duncan v. Koustenis, that the exercise of sovereignty in the officeholder's "own right," as measured by the statute's grant of authority rather than the officeholder's actual day-to-day conduct, is the single most significant factor.

Applying this framework to the Baltimore City Board of Recreation and Parks, the opinion found members took an oath and served fixed terms under the City Charter, and that the Charter's grant of authority to "establish, maintain, operate and control" city parks and to enforce park rules alongside the Police Commissioner reflected a governmental, sovereign function, as the Court of Appeals had already recognized in Mayor and City Council of Baltimore v. State and Harris v. Mayor and City Council of Baltimore regarding park police officials. For the Prince George's County Personnel Board, the opinion found members took an oath, received statutory compensation under the County Code, and held sweeping, final authority under the County Charter and Code to decide personnel appeals with orders that "shall be final on all parties concerned," making membership a compensated "office of profit." The opinion closed by noting, citing Board of Supervisors of Elections v. Attorney General and Moser v. Howard County Board, that dual-officeholding bans like the one in the Executive Order serve broader purposes than avoiding case-specific incompatibility, protecting against conflicts of interest, self-aggrandizement, and concentration of power generally, so the ban applied to both positions regardless of whether either was factually incompatible with judicial nominating work.

Citations

Statutes:

• Md. Const. Declaration of Rights, art. 33 (judges barred from other office, trust, or employment)
• Md. Const. Declaration of Rights, art. 35 (bar on holding more than one office of profit)
• Md. Const. art. I, §9 (oath required for office of profit or trust)
• Md. Const. art. III, §11 (legislator barred from civil office of profit or trust)
• Baltimore City Charter art. IV, §6 (appointment of municipal officers)
• Baltimore City Charter art. IV, §6(g) (oath requirement)
• Baltimore City Charter art. VII, §§61-64 (Board of Recreation and Parks powers and duties)
• Baltimore City Charter art. VII, §63(a) (duty to establish, maintain, operate, and control parks)
• Baltimore City Charter art. VII, §63(h) and (i) (park rule enforcement and shared jurisdiction over sidewalks)
• Prince George's County Charter §906 (creation of the Personnel Board)
• Prince George's County Charter §907 (Personnel Board powers and duties)
• Prince George's County Code §16-104 (Personnel Board member compensation)
• Prince George's County Code §16-203(a) (Personnel Board as final administrative appeal authority)
• Executive Order 01.01.1982.05 (April 24, 1982) (Judicial Nominating Commission eligibility)

Cases:

• Truitt v. Collins, 122 Md. 526 (1914)
• Hetrich v. County Commissioners of Anne Arundel Co., 222 Md. 304 (1960)
• Howard County Metropolitan Commission v. Westphal, 232 Md. 334 (1963)
• Pressman v. D'Alesandro, 211 Md. 50 (1956)
• Board of Supervisors of Elections v. Attorney General, 246 Md. 417, 439 (1967)
• Gary v. Board of Trustees of the Employees' Retirement System, 223 Md. 446, 449 (1960)
• Duncan v. Koustenis, 260 Md. 98, 105 (1970)
• Moser v. Howard County Board, 235 Md. 279 (1964)
• Goodman v. Clerk, Circuit Court for Prince George's County, 291 Md. 325 (1981)
• Mayor and City Council of Baltimore v. State, 168 Md. 619, 628 (1935)
• Harris v. Mayor and City Council of Baltimore, 151 Md. 11 (1926)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1983/Volume68_1983.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Public Officers—Judicial Nominating Commission—Eligibility—Baltimore City Board of Recreation and Parks—P.G. County Personnel Board—City Park Board Member Holds "Office of Trust"—County Personnel Board Member Holds "Office of Profit".

August 11, 1983

Mr. James H. Norris, Jr.
State Court Administrator

You have requested our opinion on whether persons serving in certain public positions in Baltimore City and Prince George's County hold "an office of profit or trust under the Constitution or laws of this State" and are thus precluded from serving on the Judicial Nominating Commissions established by Executive Order 01.01.1982.05 (April 24, 1982). The persons in question are (i) a member of the Board of Recreation and Parks of Baltimore City and (ii) a member of the Personnel Board of Prince George's County.

For the reasons given below, we have concluded that a member of the Baltimore City Board of Recreation and Parks holds an "office of trust" and a member of the Prince George's County Personnel Board holds an "office of profit" within the meaning of the 1982 Executive Order. Consequently, under the terms of that Executive Order, they may not serve on a Judicial Nominating Commission.

I
"Office of Profit or Trust"

The 1982 Executive Order provides that a member of a Judicial Nominating Commission "may not hold an office of profit or trust under the Constitution or laws of this State or an office in a political party or be a full-time employee of the State". The language of the Executive Order, which expressly bars "employee[s] of the State", but not county or municipal employees, from serving on Judicial Nominating Commissions, perhaps suggests that a similar distinction might be drawn between State "officers" and county or municipal "officers".

However, the words "office of profit or trust under the Constitution or laws of this State" are words of art. In various forms, these words appear in numerous provisions of the Maryland Constitution. See, e.g., Article 33 of the Declaration of Rights (prohibiting judges from holding "any other office, civil or military, or political trust, or employment of any kind, whatsoever, under the Constitution or Laws of this State"); Article 35 of the Declaration of Rights (prohibiting any person from holding "more than one office of profit, created by the Constitution or Laws of this State"); Article I, §9 (requiring every person elected or appointed "to any office of profit or trust, under this Constitution, or under the Laws, made pursuant thereto" to take the prescribed oath); Article III, §11 (prohibiting a State legislator from holding "any civil office of profit, or trust, under this State"). The apparent intention of the 1982 Executive Order was to mirror these constitutional provisions and, in our view, the wealth of case law interpreting and applying them.

That case law makes it very clear that county and municipal "officers" exercise a portion of the sovereignty of the State and, as such, hold office "under the Constitution or Laws of this State". See Truitt v. Collins, 122 Md. 526 (1914) (Councilman of Snow Hill holds an "office of profit or trust" under Article I, §9); Hetrich v. County Commissioners of Anne Arundel Co., 222 Md. 304 (1960) (county business manager holds a public office and exercises State sovereignty); Howard County Metropolitan Commission v. Westphal, 232 Md. 334 (1963) (members of county sanitary commission hold offices of profit); Pressman v. D'Alesandro, 211 Md. 50 (1956) (certain officials of Baltimore City are public officers exercising the sovereignty of the State); 59 Opinions of the Attorney General 109, 119 (1974) (County Councilmen in charter county hold offices of profit). In light of this authority, we conclude that the Executive Order applies to county or municipal "officers" as well as State "officers".

We also note that, for purposes of the 1982 Executive Order, it makes no difference whether those persons receive compensation or not. To hold an office "of profit", of course, one must be entitled to receive compensation. 60 Opinions of the Attorney General 121, 124 (1975). However, the Executive Order also reaches holders of an office "of trust", and this term reaches uncompensated public officers. See 61 Opinions of the Attorney General 152, 160 (1976). See also F. R. Meachem, Public Offices and Officers §16 (1890), which defines an "office of trust" as follows: "An office whose duties and functions require the exercise of discretion, judgment, experience and skill is an office of trust, and it is not necessary that the officer should have the handling of public money or property, or the care and oversight of some pecuniary interest of the government." This definition stands in marked contrast to that of an "office of profit", which is simply an "office" to which "salary, compensation or fees are attached". Id. at §13.1

1 See also 65 Opinions of the Attorney General 285, 287 (1980) ("[T]he term 'public trust' is synonymous with the word 'office'".).

II
Tests of "Public Office"

Thus, your inquiry becomes whether the persons holding the positions in question are public officers within the tests established by the Court of Appeals.

The traditional tests of a public office were reiterated in Board of Supervisors of Elections v. Attorney General, 246 Md. 417, 439 (1967): "1. [T]he position was created by law and casts upon the incumbent duties which are continuing in nature and not occasional; 2. the incumbent performs an important public duty; 3. the position calls for the exercise of some portion of the sovereign power of the State; 4. the position has a definite term, for which a commission is issued, a bond required and an oath required; 5. the position is one of dignity and importance."

The Court of Appeals has stated that, of these five tests, the two usually deemed most significant are the requirement of an oath and the exercise of sovereignty. Gary v. Board of Trustees of the Employees' Retirement System, 223 Md. 446, 449 (1960). But persons have been found to hold public office even in the absence of a requirement to take an oath. See, e.g., Hetrich v. County Commissioners, 222 Md. 304, 306-07 (1960). And, in Duncan v. Koustenis, 260 Md. 98, 105 (1970), the Court of Appeals said that the single most important characteristic of a public officer is that the "public servant exercise[s] in his own right some of the sovereign powers of government for the benefit of the public".2

2 With respect to public boards or commissions, the Court has essentially rejected the earlier notion that an individual member of a board or commission only exercises sovereignty collectively, with the other members, and not "in his own right". See Howard County v. Westphal, 232 Md. 334, 341 (1963).

For purposes of determining whether the holder of a public position "exercises sovereignty", the critical factor is not what the alleged officeholder does, but what the statute or other legislative enactment authorizes or requires him or her to do. See Gary v. Board of Trustees, 223 Md. at 452-53 (whether the alleged officeholder is acting in "his own right" is determined by the officeholder's statutory powers and duties, rather than his or her actual functions); Howard County v. Westphal, 232 Md. 334, 340 (1963) (position is an office of "profit" if the statute authorizes compensation, regardless of whether in fact the incumbent accepts or rejects the emoluments of the office); Gary v. Board of Trustees, 223 Md. at 451 (taking of oath is not as important as whether the statute requires the taking of an oath).

And, for purposes of express bans against dual officeholding, it matters not whether the two offices are somehow incompatible or in potential conflict. To be sure, such bans are partially rooted in the common law incompatibility-of-positions doctrine, but their purposes and scope are in many respects far broader: "The need for and purpose of these provisions manifestly was to protect against conflicts of interest, self aggrandizement, concentration of power, and the blurring or obliteration of the doctrine of separation of powers". Board of Supervisors of Elections v. Attorney General, 246 Md. 417, 428 (1967). Thus, for example, Article 35 of the Declaration of Rights ("no person shall hold, at the same time, more than one office of profit") was violated when a member of the Howard County Metropolitan Commission accepted appointment to a second office, that of notary public. Moser v. Howard County Board, 235 Md. 279 (1964). See also 48 Opinions of the Attorney General 193 (1963) (member of General Assembly may not accept notary commission).3 Obviously, there is nothing inherently incompatible with being a notary public and at the same time, a legislator or metropolitan commission member.4 That the Executive Order here in question similarly intended a scope that reaches beyond mere conflicts of interest and incompatibility is evident from its very language: The Executive Order refers without qualification to any "office of profit or trust", not, for example, to any office that is "incompatible with" membership on a Judicial Nominating Commission.

3 As might be expected, Article 35 has since been amended to provide that "[t]he position of Notary Public shall not be considered an office of profit within the meaning of this Article".
4 For a review of the specific tests used to determine what constitutes an incompatibility of positions, see 65 Opinions of the Attorney General 285, 296-97 (1980).

We now examine the positions in question in light of these principles.

III
City Board of Recreation and Parks

The powers and duties of the Baltimore City Board of Recreation and Parks are set forth in Article VII, §§61 through 64 of the Baltimore City Charter. Board members are appointed pursuant to Article IV, §6 of the Charter ("Appointments of Municipal Officers"). They take an oath, Article IV, §6(g), and they serve a fixed term, Article VII, §61. However, they receive no compensation. Id.

Among the duties imposed by the Charter on the Board is the duty "to establish, maintain, operate and control [City] parks". Article VII, §63(a). In Mayor and City Council of Baltimore v. State, 168 Md. 619, 628 (1935), the Court of Appeals examined this provision and observed that "the maintenance, control, and operation of [a City park] ... is a governmental duty, discretionary in its nature, performed [by the Board] in its political and governmental capacity as an agency of the State".

The Board is also empowered to "enforce" rules and regulations for the preservation of order on park property and to share jurisdiction and control over park sidewalks with the Police Commissioner. Article VII, §63(h) and (i). In Harris v. Mayor and City Council of Baltimore, 151 Md. 11 (1926), the Court of Appeals held that a park policeman employed by the "Park Board of Baltimore City" was a public officer exercising State sovereignty. In so concluding, the Court stated: "[T]he maintenance of the parks under the control of the Park Board necessarily included the protection of the public who visited them, the control of traffic therein; the preservation of the public property, and the suppression of violence and disorder, and however the agents employed by them to discharge those highly important duties and functions may be designated, they can only be regarded as police officials exercising within the parks of Baltimore City a part of the police power of the State. . . ." 151 Md. at 19.

On the basis of these authorities, and in light of the powers and duties of the Board as set forth in the City Charter, we think it clear that members of the Baltimore City Board of Recreation and Parks are public officers who exercise some portion of the sovereign power of the State. They thus hold "an office of . . . trust under the Constitution or laws of this State". Consequently, they are precluded by the 1982 Executive Order from serving on a Judicial Nominating Commission.

IV
County Personnel Board

Section 906 of the Prince George's County Charter establishes a five-member Personnel Board, appointed by the County Executive "for terms coterminous with his". It is our understanding that Board members, like other appointees of the County Executive [see Goodman v. Clerk, Circuit Court for Prince George's County, 291 Md. 325 (1981)], take an oath of office. Members also are entitled to receive compensation. See Prince George's County Code, §16-104.

The powers and duties of the Personnel Board are set forth in §907 of the County Charter and in various sections of the County Code, such as §16-203. Section 907 of the County Charter requires the Board, with certain exceptions, to "hear appeals from employees in the classified service or appeals by any person who has taken or sought to take an examination concerning any action of the Personnel Officer or the appointing authority of the employee" and to "hear and decide for the County appeals from any action pertaining to the methods of examination, certification, or preparation of eligibility lists for appointment or promotion".

Section 16-203(a) of the County Code designates the Board, for purposes of certain appeals, as "the final administrative appeal authority for Prince George's County". It provides that, in the case of such appeals, "the decisions and orders of the Board shall be final on all parties concerned and may not be appealed to any other administrative board". This section also empowers the Board in its orders to "sustain, modify, or reverse the action or actions of an appointing authority, supervisor, or the Personnel Officer as the case may be, which gave rise to the appeal".

In light of these extensive powers and duties, we think it clear that members of the Personnel Board of Prince George's County are public officers who exercise some portion of the sovereign power of the State. Because they are also compensated, they hold "an office of profit . . . under the Constitution or laws of this State". Consequently, they are precluded by the 1982 Executive Order from serving on a Judicial Nominating Commission.

V
Conclusion

In summary, it is our opinion that, for purposes of Executive Order 01.01.1982.05 (April 24, 1982), governing service on Judicial Nominating Commissions: (i) a member of the Baltimore City Board of Recreation and Parks holds an "office of trust"; and (ii) a member of the Prince George's County Personnel Board holds an "office of profit". Whether, as a matter of public policy, such persons should be precluded from serving on a Judicial Nominating Commission is not for us to say. We can only note that the specific provision we are here asked to construe and apply has a hoary tradition that we are not free to ignore, even if policy might suggest a different result.

Stephen H. Sachs, Attorney General
Robert A. Zarnoch, Assistant Attorney General
Avery Aisenstark,
Chief Counsel
Opinions and Advice