Can Maryland's Comptroller force county court clerks and registers of wills to pay their employees through the state's Central Payroll Bureau?

Plain-English summary

The Comptroller of the Treasury and two Baltimore County officials, a Register of Wills and a Clerk of the Circuit Court, asked the Attorney General whether the Comptroller could require Clerks of the Circuit Courts and Registers of Wills to pay their employees through the State's Central Payroll Bureau, even though the specific proposal that prompted the question had already been withdrawn. The opinion concluded the Comptroller lacked that authority. Clerks and Registers are constitutional officers paid from the fees of their own offices, not from funds the General Assembly appropriates from the State Treasury, and by statute those fees do not become "moneys of the State" (and so do not enter the budget and appropriation process) unless and until any year-end excess is turned over to the State Treasurer. Because the statute governing the Central Payroll Bureau limits mandatory participation to employees "paid from funds appropriated by the General Assembly," and Clerks', Registers', and their employees' salaries come from office fees instead, the Bureau's mandatory-use statute simply does not reach them, and the Comptroller's other statutory oversight powers over Clerks' and Registers' office expenses (setting employee compensation, approving office expenses) do not extend to dictating the payment method. The opinion noted, however, that nothing barred Clerks or Registers from voluntarily choosing to use the Central Payroll Bureau, and that several already did so without running afoul of the constitutional appropriation requirements, since the Bureau does not deposit those voluntarily routed funds into the State Treasury.

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.

Common questions

Could Maryland's Comptroller force a county Clerk of the Circuit Court to route employee paychecks through the state's Central Payroll Bureau in 1983?
No, according to this opinion. The Bureau's governing statute, Article 64A, §38A(a) of the Maryland Code, only mandated participation for employees paid from funds appropriated by the General Assembly, and the opinion found Clerks' and Registers' employees are paid from office fees instead, which are not appropriated funds.

Why weren't the fees collected by Clerks of the Circuit Courts considered "moneys of the State"?
Under Article XV, §1 of the Maryland Constitution, "feed" officers like Clerks and Registers of Wills were required to turn over only the excess of their office fees, if any, to the State Treasurer once a year, after paying salaries and office expenses. The opinion concluded the fees became "moneys of the State," subject to the budget process, only once that year-end excess reached the Treasurer, not before.

Did the Comptroller have any authority at all over how Clerks and Registers ran their offices?
Yes, but limited. The Comptroller could set the compensation of Clerks' office employees and approve office expenses, and had broader authority over Clerk-collected taxes and license fees that were genuinely state or local revenue. But nothing in the statutes gave the Comptroller power to dictate the specific method, such as requiring use of the Central Payroll Bureau, by which Clerks paid their own employees.

Could a Clerk or Register still choose to use the Central Payroll Bureau voluntarily?
Yes. The opinion found no statutory or constitutional barrier to a Clerk or Register voluntarily opting into the Bureau's services, and noted that several already did so, since the funds routed through the Bureau this way were not deposited into the State Treasury and so did not trigger the constitutional appropriation requirements.

Background and statutory framework

Clerks of the Circuit Courts and Registers of Wills are constitutional officers, elected countywide for four-year terms under Article IV, §25 and §41 of the Maryland Constitution. Clerks are subject to the "visitorial power" of the judges of their courts, who may issue rules governing performance of the Clerks' duties (rules that have the force of law unless changed by the General Assembly), and both offices are traditionally compensated from the fees collected for their official duties rather than from a legislative salary appropriation. Article XV, §1 of the Constitution requires such "feed" officers to keep account books, submit them yearly to the Comptroller, and pay over to the State Treasurer only the amount exceeding what the law allows them to retain for salary and office expenses. The opinion explained that this structure means Clerks' and Registers' fees become "moneys of the State," subject to the constitutional budget and appropriation process under Article III, §§32 and 52, only once any year-end excess reaches the Treasury, a point reinforced by the General Assembly's 1982 enactment (Chapter 907, codified at §2-205.1 of the Courts Article) specifying that Clerks' deposited receipts are "not placed in the State Treasury, or subject to appropriation by the General Assembly."

Turning to the specific dispute, the opinion reviewed the statute governing the Central Payroll Bureau, Article 64A, §38A(a) of the Maryland Code, which required the Bureau to "handle and provide for the payment of all salaries and wages ... for and to all officers and employees of the State ... whose salaries and wages are paid from funds appropriated by the General Assembly." Because Clerks' and Registers' employees are paid instead from the fees of those offices under statutes like §2-504(c) of the Courts Article (Clerks' salaries "payable biweekly from the fees, receipts, and emoluments of his office") and §2-205(d) of the Estates and Trusts Article (Registers' salaries paid "semimonthly from the fees and receipts of the office"), the Bureau's mandatory-participation requirement simply did not reach them. The opinion also reviewed the Comptroller's other statutory powers, including setting Clerks' employee compensation under §2-505(a) of the Courts Article and approving Clerks' office expenses under §2-202(b), and found none of them extended to dictating the payment method or mechanism, as opposed to the amount, of employee compensation. The opinion closed by noting that Clerks and Registers remained free to use the Central Payroll Bureau voluntarily, and that several already did, since those voluntarily routed funds bypassed the State Treasury and so raised no appropriation-clause concerns.

Citations

Statutes and constitutional provisions:

• Article IV, §25 and §41 of the Maryland Constitution (Clerks of the Circuit Courts and Registers of Wills as elected constitutional officers)
• Article IV, §10 (Clerks' duties, fees, and judicial visitorial power) and §26 (judicial authority over Clerk's deputies)
• Article XV, §1 (fee-officer accounting and year-end excess turnover to the Treasurer)
• Article III, §45 (General Assembly's duty to establish a uniform fee system for Clerks and Registers)
• Article VI, §2 and §3 (Comptroller's general fiscal superintendence; "moneys of the State" deposited with the Treasurer)
• Article III, §32 and §52 (appropriation and Executive Budget Amendment process)
• §2-205.1, §2-504.1, §2-505(a), §2-504(a), §2-505(c), §2-202(b), and §2-504(c) of the Courts Article, and §7-202 (State Court Administrator's authority to set circuit court costs and charges)
• §2-205(d), §2-205(e), §2-206, and §2-208(b) of the Estates and Trusts Article (Registers of Wills' fees, salaries, and deputies)
• Article 64A, §38A(a) of the Maryland Code (Central Payroll Bureau's mandatory-participation statute)
• Article 19, §26A of the Maryland Code (Comptroller's authority over Registers' deputy staffing)
• Article 56, §11 of the Maryland Code (Comptroller's oversight of Clerk-collected license fees); Article 17, §74 (Clerks' commission for collecting recordation and transfer taxes)
• §13-208 of the Transportation Article (vehicle security lien filing fees funding Clerk budget supplements)
• Chapter 907, Laws of Maryland 1982 (Clerks' deposit statute confirming funds are not part of the State Treasury)

Cases:

• Peter v. Prettyman, 62 Md. 566, 576 (1884)
• Murphy v. Yates, 276 Md. 475, 492 (1975)
• Comptroller v. Panitz, 267 Md. 296 (1972)
• Subsequent Injury Fund v. Park, 250 Md. 306 (1967)
• Wyatt v. State Roads Commission, 175 Md. 258 (1938)
• Baltimore v. O'Connor, 147 Md. 639 (1925)
• Smith v. Turner, 101 Md. 584, 591 (1905)

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.

BUDGETARY ADMINISTRATION

Personnel, Clerks Of Circuit Court, Registers Of Wills, Fees Of Office, Comptroller, Central Payroll Bureau, "Moneys Of The State", Comptroller May Not Require, But May Permit, Payment Of Clerks' And Registers' Employees Salaries Through Central Payroll.

October 31, 1983

The Honorable Louis L. Goldstein
Comptroller of the Treasury

The Honorable Peter J. Basilone
Register of Wills for Baltimore County

The Honorable Elmer H. Kahline, Jr.
Clerk of the Circuit Court for Baltimore County

You have requested our opinion on the authority of the State Comptroller to require Clerks of the Circuit Courts and Registers of Wills to pay their employees through the State's Central Payroll Bureau. Although the particular proposal that gave rise to your question has since been withdrawn, we nonetheless believe it appropriate to provide you with a response, if only to serve as future guidance on this and related, often recurring, questions about the Comptroller's authority over Clerks and Registers.

For the reasons given below, we have concluded that the Comptroller may not require the Clerks of the Circuit Courts and the Registers of Wills to pay their employees through the Central Payroll Bureau. The statute governing the Bureau's operations requires participation of only those public employees who, unlike Clerks, Registers, and their employees, are paid from funds appropriated by the General Assembly. In our view, the Comptroller's authority over Clerks and Registers is not so extensive as to permit him to require otherwise. However, there is nothing in the law that would preclude the Clerks and Registers from voluntarily agreeing to use the services of the Central Payroll Bureau, as recommended by the Comptroller.

I
Clerks of the Circuit Courts

A. Constitutional Provisions

The Clerks of the Circuit Courts are constitutional officers, elected by the voters of their respective counties for a term of four years. Article IV, §25. (Unless otherwise noted, all citations are to the Maryland Constitution.) They "shall have charge and custody of the records and other papers, shall perform all the duties, and be allowed the fees, which appertain to their several offices, as the same now are, or may hereafter be regulated by Law". Article IV, §10. Thus, the Clerks' various duties (except, presumably, the specific constitutional requirement that they "shall have charge and custody of" court records) may be enlarged or diminished "by Law", i.e., by the General Assembly. And, although the Clerks "shall ... be allowed the fees [that] appertain to their ... offices", these fees also may be changed (though, presumably, not totally eliminated) by the General Assembly.

Although the Clerks of the Courts are constitutional officers in their own right, the Constitution provides that they shall be subject to the "visitorial power of the Judges of their respective Courts, who shall exercise [that power] so as to insure the faithful performance of the duties [of the Clerks]". Id. This constitutional provision commits to the judges the supervision, regulation, and direction of how the Clerks are to perform their duties. Peter v. Prettyman, 62 Md. 566, 576 (1884). See also 58 Opinions of the Attorney General 69, 72-74 (1973). In furtherance of this judicial power and responsibility, the Constitution provides that "it shall be the duty of the Judges . . . to make . . . such rules and regulations as may be necessary and proper for the government of said Clerks, and for the performance of the duties of their offices". Article IV, §10. These rules and regulations "shall have the force of Law until repealed, or modified by the General Assembly". Id.

It thus appears that the framers of the Constitution intended to invest the General Assembly with authority over the Clerks, subject only to the following limitations: (1) the General Assembly may not eliminate the express powers reserved to the Clerks by Article IV, §10, e.g., the charge and custody of court records (the General Assembly may not effectively abolish a constitutional office by taking away all of the duties of that office. Murphy v. Yates, 276 Md. 475, 492 (1975). See also 62 Opinions of the Attorney General 166 (1976)) and the allowance of the fees of their offices (Article III, §45 of the Constitution provides for the establishment of these fees as follows: "The General Assembly shall provide a simple and uniform system of charges in the offices of Clerks of Courts and Registers of Wills . . . , and for the collection thereof; provided, the amount of compensation to any of the said officers . . . shall be such as may be prescribed by law." Thus, the framers of the Constitution have placed upon the General Assembly a two-fold responsibility: (1) establishing a uniform system of fees to be charged for the performance of their duties; and (2) setting the amount of those fees that may be retained by the Clerks as compensation); and (2) the General Assembly may not alter the responsibility of the Clerks in such a manner or to such a degree as to infringe upon the province of the Judiciary (see 65 Opinions of the Attorney General 309 (1980)).

Because the Constitution provides that the Clerks of the Circuit Courts are to be paid from the fees of their offices, the Clerks are subject to the provisions of Article XV, §1 of the Constitution. This section provides that "[e]very person holding any office created by, or existing under the Constitution, or Laws of the State . . . , whose pay, or compensation is derived from fees, or moneys coming into his hands for the discharge of his official duties, or, in any way, growing out of, or connected with his office" must:

1. Keep an account book of all money received as payment or compensation for his or her official duties.
2. Submit that book yearly to the Comptroller, for inspection by the Comptroller and the General Assembly.
3. Pay yearly to the State Treasurer any amount that exceeds the amount allowed by law to be retained as salary and for the expenses of his or her office.

If a Clerk fails to comply with these requirements, the Clerk's office is considered vacated and the Clerk is subject to suit for all money that should have been paid to the Treasurer. Id.

Article XV, §1 also establishes certain specific responsibilities for the Comptroller. Not only must the Comptroller inspect the books that the Clerks submit yearly, the Comptroller also must report to the General Assembly on which officers have complied or failed to comply with the requirements of the section. Finally, Article XV, §1 provides that the money paid to the Treasurer at the end of each year is subject to further "disposition ... as the General Assembly may direct".

Significantly, the Clerks are required by the Constitution to turn over their fees only once a year and, even then, only if there exists an excess after paying their salaries and the expenses of their offices. Once received by the State Treasurer, these excess fees are "moneys of the State", within the meaning of Article VI, §3; as such, they are subject to further "disposition ... as the General Assembly may direct" in accordance with Article III, §§32 and 52, which govern the appropriation and budgetary process. Conversely, however, the Clerks' fees of office are not "moneys of the State" unless, and until, any excess is turned over to the Treasurer at the end of the year pursuant to Article XV, §1. Cf. Comptroller v. Panitz, 267 Md. 296 (1972); Subsequent Injury Fund v. Park, 250 Md. 306 (1967); Wyatt v. State Roads Commission, 175 Md. 258 (1938); 68 Opinions of the Attorney General 86 (1983). Thus, none of these fees would be subject to appropriation under Article III, §§32 and 52 until they are turned over to the Treasurer, if ever. See Baltimore v. O'Connor, 147 Md. 639 (1925). (Similarly, the provisions of Article VI, §2, which set forth the basic powers and duties of the Comptroller, would have no application to fees of office received by the Clerks until those fees are turned over at the end of the year to the Treasurer. Article VI, §2 provides that the Comptroller, in addition to "perform[ing] such other duties as shall be prescribed by law", is charged with the "general superintendence of the fiscal affairs of the State", including the "prompt collection of all taxes and revenue". Arguably, the fees "allowed" the Clerks under Article IV, §10 are neither taxes nor revenue of the State within the meaning of this provision. See discussion in Part II B below. And, while the powers of the Comptroller are broad, they "are not without limitation". 63 Opinions of the Attorney General 492, 494 (1978).)

In a letter to the then Chairman of the House Appropriations Committee, Assistant Attorney General Richard E. Israel advised that "it is only those fees which exceed the salaries and office expenses of the clerks which must be deposited in the Treasury and are subject to appropriation in the Budget Bill". Letter from Richard E. Israel, Assistant Attorney General, to John R. Hargreaves, State Delegate (March 9, 1982). The General Assembly apparently acted on this advice: in later enacting a provision requiring the Clerks to deposit their receipts in certain approved financial institutions, the General Assembly specifically provided that the funds so deposited "[s]hall be available to each circuit court clerk as needed" and "are not placed in the State Treasury, or subject to appropriation by the General Assembly". Chapter 907, Laws of Maryland 1982, codified at §2-205.1 of the Courts Article. See also Letter from Richard E. Israel, Assistant Attorney General, to John R. Hargreaves, State Delegate (March 12, 1982).

(Nor do we believe that §2-504.1 of the Courts Article, also enacted in 1982, requires that the salaries and expenses of the Clerks' offices be appropriated by the General Assembly. Section 2-504.1 requires each Clerk to "submit annually a budget for the review and approval of the General Assembly". That budget first must be submitted to the Comptroller and is "subject to review by the Comptroller and the State Court Administrator". The approved budget then is to be "included in the State budget as part of the budget for the executive branch of State government". The Governor "may include in the State budget funds to supplement the fees and receipts of the clerks of the circuit courts". We previously advised the Governor that the legislative "approval" provisions of this enactment were "of doubtful effect", because "certain funds of the clerks are clearly not regarded as part of the State Treasury . . . and thus [are] not subject to the appropriation process". Bill Review Letter (S. B. 1103) from Stephen H. Sachs, Attorney General, to Harry Hughes, Governor (May 25, 1982). In contrast, the authorization to appropriate funds to "supplement" the fees and receipts of the Clerks is not constitutionally infirm: the money used to supplement the Clerks' receipts is not derived from the Clerks' fees but from vehicle security lien filing fees (§13-208 of the Transportation Article) and from general revenues. Indeed, for Fiscal Year 1984, the only appropriation by the General Assembly for the Clerks of the Circuit Courts was an appropriation for deficits in the Clerks' offices. See 1 Maryland State Budget for Fiscal Year 1984, 260 (1983).)

In summary, the Constitution provides as follows: The Clerks of the Circuit Courts are to perform the duties set forth in the Constitution and those additional duties as may be established by the General Assembly; they are subject to the rules established by the judges of their Courts, which rules have the force of law unless repealed or modified by the General Assembly; the Clerks are entitled to charge and receive the fees established by the General Assembly; they are authorized to pay their own salaries and the expenses of their offices from those fees; and they are required to return any excess fees to the State Treasurer. Although the Constitution provides that the State Comptroller has the general superintendence of the fiscal affairs of the State, especially the collection of State taxes and revenues, this does not appear to include superintendence over that money which the Clerks retain as the fees for their offices.

Nevertheless, because the framers of the Constitution gave the General Assembly the responsibility and power to provide further for the duties of both the Comptroller and the Clerks, we must consider the various statutory provisions relating to these offices.

B. Statutory Provisions

First, an examination of the provisions relating to the Clerks' fees is appropriate. Pursuant to its constitutional mandate, the General Assembly has provided for a system of fees and charges, from which the Clerks receive their compensation and pay the expenses of their offices. Significantly, those office expenses include the salaries of their deputies and employees. See Smith v. Turner, 101 Md. 584, 591 (1905).

Section 7-202 of the Courts Article provides that the State Court Administrator "shall determine the amount of all court costs and charges for the circuit courts of the counties with the approval of the Board of Public Works". Pursuant to this mandate, the State Court Administrator has established an extensive schedule of circuit court costs and charges, including filing fees, fees for issuing writs, and the like. These fees are intended to compensate the Clerks and provide for the expenses of their offices, for services relating to the administration of the judicial process.

In addition, the Clerks collect legislatively-established fees for performing other, essentially nonjudicial duties. Examples include marriage license fees (Article 62 of the Maryland Code), liquor license fees (Article 2B of the Maryland Code), and traders and other business license fees (Article 56 of the Maryland Code). A portion of these fees is retained by the Clerks for their services in issuing and recording the licenses and in paying over the remaining revenues to the State or appropriate political subdivision, as provided by law. The Clerks also collect recordation and transfer taxes and pay these taxes over to the State or appropriate political subdivision, as provided by law; the General Assembly has authorized the Clerks to retain a 5% commission for collecting and disbursing these taxes, as well as other public money. See Article 17, §74 of the Maryland Code. (This statute establishes a commission of less than 5% for certain subdivisions or under certain circumstances.)

We next turn to the statutory provisions governing the duties of the State Comptroller as they relate to Clerks of the Circuit Courts. As indicated above, it is evident that the Clerks have numerous statutory duties and responsibilities that are not directly related to the administration of the judicial process. For instance, the Clerks have the responsibility of issuing and collecting statutory fees for many types of licenses and for collecting recordation and transfer taxes. All are revenue-raising measures and, as discussed above, the money collected is paid over to either the State or one of its political subdivisions. As to these duties of the Clerks, the Comptroller's constitutional duty of "superintend[ing] and enforc[ing] the prompt collection of all taxes and revenue" certainly applies. Indeed, the General Assembly has expressly given the Comptroller responsibility over the Clerks in these areas. See, e.g., Article 56, §11 of the Maryland Code.

The General Assembly also has given the Comptroller certain oversight responsibilities pertaining to how the Clerks expend the fees of their offices. For instance, §2-505(a) of the Courts Article provides that, on application of a Clerk or on the Comptroller's own initiative, the Comptroller "may set the compensation of any employee of the Clerks' office". (There are two exceptions to the Comptroller's statutory authority over salaries: The Comptroller does not set the clerk's own salaries; these are set by the Board of Public Works. See §2-504(a) of the Courts Article; 68 Opinions of the Attorney General 352 (1983). Nor does the Comptroller set the salaries of the employees in the Washington County Clerk's office. See §2-505(c) of the Courts Article.) And §2-202(b) of the Courts Article provides that, while the "cost of office expenses and necessary equipment used by a clerk . . . shall be allowed as expenses of his office", these expenses are "subject to approval of the Comptroller".

Significantly, there is no statutory authorization for the Comptroller to establish the method by which employees of the Clerks' offices are to be paid. Thus, even though the Comptroller "may set the compensation of" the Clerks' employees and is given "approval" power over the expenses of the Clerks' offices, it appears that the Clerks retain the authority to determine the method by which their deputies and employees are paid, subject only to the visitorial powers of the judges of Court and the requirements, if any, enacted by the General Assembly. See Article IV, §10; Peter v. Prettyman, 62 Md. 566, 576 (1884). (Unlike the provisions relating to Registers of Wills [see note 11 below], the General Assembly has not given the Comptroller the authority to set the number of assistants or deputies that a Clerk may appoint. That decision is reserved for the Judges of the respective Courts. Article IV, §26. See also Smith v. Turner, 101 Md. 584, 590 (1905).)

In this regard, the General Assembly has expressly provided that "[t]he salary of a clerk is payable biweekly from the fees, receipts, and emoluments of his office after deducting the necessary expenses of the office". §2-504(c) of the Courts Article. Thus, from the fees collected by them, the Clerks should (i) deduct the salaries of their employees (which salaries, once set by the Comptroller, are among "the necessary expenses of" the Clerks' offices, see Smith v. Turner, 101 Md. 584, 591 (1905)), (ii) deduct the other expenses of their offices (as approved by the Comptroller), and (iii) then pay themselves the salaries to which they are entitled. This is the method established by the General Assembly. In our view, the Comptroller has no authority to change this method by requiring the Clerks to pay their employees through the Central Payroll Bureau.

II
Registers of Wills

Although much of what has been said above applies with equal force to the Registers of Wills, there are differences that deserve mention.

Like the Clerks of the Circuit Courts, the Registers of Wills are constitutional officers, elected by the voters of their respective counties for a term of four years. Article IV, §41. Unlike Clerks of the Circuit Courts, however, they are not constitutionally authorized to appoint deputies (by statute, the Comptroller is given the authority to "limit and fix the number and compensation of assistant clerks or deputies to be employed by any register of wills". Article 19, §26A of the Maryland Code. See also §2-208(b) of the Estates and Trusts Article); nor are they subject to any constitutional provision that they be compensated from the fees of their offices.

By statute, however, the General Assembly has provided that the salaries of the Registers of Wills "shall be paid semimonthly from the fees and receipts of the office, after deducting the expenses of the office". §2-205(d) of the Estates and Trusts Article. The various fees and commissions to which Registers are entitled are enumerated in §2-206 of the Estates and Trusts Article. From these receipts the Registers are to pay the necessary and customary expenses of doing business, including the salaries of their employees and, of course, their own salaries. (If the receipts are insufficient in any month to meet expenses, including authorized salaries, the Registers may deduct the deficiency "from the taxes due the State Comptroller" upon "written authority" of the Comptroller for the deduction. §2-205(e) of the Estates and Trusts Article. In the event that tax collections for the month are insufficient, the Comptroller "shall make up the deficit from funds provided in the state budget for this purpose". Id. It is our understanding that there has been no need for such budgetary appropriations for deficits in the Registers' offices. From time to time, however, the Comptroller has requested the Board of Public Works to approve payment from the State's emergency fund to pay deficits in certain offices.)

Consequently, Registers, like Clerks, are considered "feed" officers, subject to the provisions of Article XV, §1 of the Constitution. Therefore, Registers, like Clerks, need only turn over to the State Treasurer the excess fees, if any, remaining at the end of each year. Only at that time do these fees become part of the State Treasury, subject to the appropriation and budgetary provisions of Article III, §§32 and 52. Thus, the requirements and implications of Article XV, §1, as discussed with reference to the Clerks, apply with similar effect to the Registers of Wills.

III
Central Payroll Bureau

The Central Payroll Bureau, a unit of the Comptroller's Office, is required by statute to "handle and provide for the payment of all salaries and wages ... for and to all officers and employees of the State . . . whose salaries and wages are paid from funds appropriated by the General Assembly". Article 64A, §38A(a) of the Maryland Code. As explained above, the salaries of the Clerks and Registers and of their employees are not paid from funds appropriated by the General Assembly. Thus, the General Assembly has not mandated that the salaries of these employees be paid through the Central Payroll Bureau. Nor, for the reasons expressed above, do we believe that the Comptroller has authority to impose such a procedure on these employees.

This does not mean, however, that the Clerks and Registers are precluded from using this service, if both the Comptroller and they so wish. Although Article 64A, §38A requires that certain public employees be paid through the Central Payroll Bureau, the statute does not limit the availability of the services of the Bureau to those public employees alone. Thus, the Clerks and the Registers could elect to pay their employees and, indeed, themselves through the Central Payroll Bureau.

We understand that, in fact, several of these officers already are doing so, and the necessary mechanics for transferring funds from the fees of their offices to the Central Payroll Bureau have been worked out. For instance, we are advised that these funds are not deposited by the Bureau in the State Treasury; consequently, the voluntary procedures that have been implemented do not run afoul of Article III, §§32 and 52, requiring an appropriation by the General Assembly.

IV
Conclusion

In summary, it is our opinion that the State Comptroller does not have the authority, under present law, to require the Clerks of the Circuit Courts or the Registers of Will to pay their employees through the State's Central Payroll Bureau. (We believe that the conclusion reached here is consistent with a similar conclusion reached in 58 Opinions of the Attorney General 69 (1973), regarding a proposed uniform vacation and sick leave plan for Clerks of the Circuit Courts.) However, there is no statutory or constitutional impediment to permitting individual Clerks or Registers, if they so choose, to enjoy the services of the Central Payroll Bureau, as suggested by the Comptroller.

Stephen H. Sachs, Attorney General
James G. Klair, Assistant Attorney General
Catherine M. Shultz, Assistant Attorney General
Avery Aisenstark, Chief Counsel, Opinions and Advice