After Maryland's 1986 constitutional amendment, must a circuit court clerk's office payroll go through the state Central Payroll Bureau?

Plain-English summary

For most of Maryland's history, circuit court clerks' offices ran on the fees they collected rather than State appropriations, which kept them largely outside the ordinary state budget and payroll system. Voters approved a 1986 constitutional amendment converting the clerks' offices to State-budget funding instead, with their fee revenue now flowing to the State as general revenue. A Montgomery County circuit court clerk asked what this change meant in practice: would clerk's-office payroll now run through the Comptroller's Central Payroll Bureau, how much more oversight would the Comptroller have over clerks' finances, and would the circuit judges keep their traditional supervisory power over how the clerks ran their offices day to day?

The Attorney General concluded the clerks' payrolls now had to be processed through the Central Payroll Bureau (subject to a Governor-approved transition schedule), that the Comptroller's oversight of clerks' finances expanded to match the oversight the Comptroller already exercised over other appropriation-funded agencies, and that the circuit judges kept the visitorial powers over the clerks' offices that Article IV, §10 had always given them, since that part of the constitutional provision was untouched by the 1986 amendment.

Currency note

This opinion was issued in 1987. 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

Did the 1986 constitutional amendment change who supervises how a clerk's office is run day to day?
No. The opinion concluded that the circuit judges' visitorial power under Article IV, §10, including the right to set additional office hours and determine staffing needs, was untouched by the amendment, which addressed funding, not day-to-day supervision.

Why did clerks' office payroll have to move to the Central Payroll Bureau?
Because the Bureau's governing statute, Article 64A, §38A, required it to handle payroll for any state officer or employee paid from funds appropriated by the General Assembly, and after the amendment, clerks' office salaries were paid that way for the first time.

Did the Comptroller gain new power over clerks' offices, or just keep the powers it already had?
Both. The opinion concluded the Comptroller kept its pre-existing authority to review clerks' annual budgets and set employee compensation, but also gained new authority to oversee the clerks' expenditures and accounting procedures the same way it oversees other State agencies funded by appropriation rather than fees.

Background and statutory framework

Before 1986, Article IV, §10 of the Maryland Constitution entitled circuit court clerks to "the fees" generated by their offices, and a web of statutes (including CJ §2-205.1, keeping clerks' receipts out of the State Treasury, and CJ §2-504.1, providing for Comptroller-reviewed budgets with State supplements when fee revenue fell short) reflected that fee-office status. A 1982 legislative committee report and a Task Force on Clerks of the Court, created in response to inconsistent administration across clerks' offices, recommended converting the offices to State-budget funding to achieve more uniform financial oversight and stable funding. Chapter 722 of the Laws of Maryland 1986 proposed the constitutional amendment implementing that recommendation, and voters ratified it at the November 1986 general election, adding language providing that "[t]he offices of the Clerks shall be funded through the State budget" and that clerks' fees and revenues "shall be State revenues."

The opinion worked through the practical consequences: because clerks' revenues were now "State revenues" under Article VI, §3, they had to be deposited in the State Treasury and drawn only pursuant to an appropriation under Article III, §32, so the annual budget bill would now include clerks' offices as both a revenue estimate and an appropriated expenditure. CJ §2-504.1's existing budgeting procedures (Comptroller review, uniform budget format) remained in force since nothing in the amendment repealed them, but the fee-supplement mechanism in CJ §2-504.1(c) became obsolete. Because payroll for clerks' office employees would now be paid from an appropriation, Article 64A, §38A's Central Payroll Bureau requirement applied to them for the first time, subject to the Governor's authority under §38A(b) to set a transition date. Finally, the opinion confirmed that Article IV, §10's separate grant of "visitorial power" to circuit judges over the clerks' offices, including the power to prescribe additional office hours under CJ §2-204 and Maryland Rule 1215 and to determine deputy clerk staffing under Article IV, §26, was untouched by the amendment, citing Peter v. Prettyman for the judges' traditional supervisory role.

Citations

Statutes:

• Article IV, §10 (Clerks of the Circuit Courts, funding and visitorial power)
• Article IV, §2 (Comptroller's general oversight authority)
• Article IV, §26 (judges' authority over deputy clerk staffing)
• Article III, §32 (no money drawn from Treasury except by appropriation)
• Article III, §52 (appropriation procedures)
• Article VI, §3 (State revenues deposited in Treasury)
• Article XIV (constitutional amendment ratification procedure)
• Article XV, §1 (fee office recordkeeping and surplus remission)
• Article 64A, §38A(a) (Central Payroll Bureau duty to handle appropriated salaries)
• Article 64A, §38A(b) (Governor's authority to set transition date)
• Article 64A, §38A(c) (definition of "employee" for payroll purposes)
• Article 64A, §3 (classified service exceptions)
• CJ §2-204 (additional office hours)
• CJ §2-205 (annual account to Comptroller)
• CJ §2-205.1(a) (clerks' receipts deposited in State depository)
• CJ §2-205.1(b) (fee funds not part of State Treasury, pre-amendment)
• CJ §2-504.1(a) and (b) (clerks' budget submission procedure)
• CJ §2-504.1(b)(3) (Comptroller review of clerks' budgets)
• CJ §2-504.1(b)(4) (clerks' budgets part of executive branch budget)
• CJ §2-504.1(c) (State supplement to clerks' fee revenue, pre-amendment)
• CJ §2-505 (Comptroller authority over clerks' employee compensation)
• SF §7-202 (appropriation procedures)
• SF §§7-216 through 7-223 and 7-401 (Comptroller oversight of appropriated agencies)
• Maryland Rule 1215 (clerk's office hours)
• Chapter 722, Laws of Maryland 1986 (proposing the constitutional amendment)
• Chapter 81, Laws of Maryland 1984 (FY1985 budget bill, Task Force condition)

Cases:

• Peter v. Prettyman, 62 Md. 566 (1884)

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/1987/Volume72_1987.pdf

Original opinion text

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

CLERKS OF CIRCUIT COURT

Budgetary Administration—Comptroller—Central Payroll Bureau—Judiciary—Effect of Constitutional Amendment Changing Clerks' Offices from Fee Offices to Offices Funded by General Fund Appropriations.

May 11, 1987

The Honorable Howard M. Smith,
Clerk, Circuit Court for Montgomery County

You have requested our opinion concerning the ramifications of the recent constitutional amendment changing the offices of the Clerks of the Circuit Courts from fee offices to offices funded by General Fund appropriations. You have specifically asked whether, as a result of the constitutional amendment, the payment of salaries and wages for employees of each clerk's office now must be handled by the Central Payroll Bureau. More generally, you also have asked (i) what authority the Comptroller has over the clerks' offices by reason of the constitutional amendment, and (ii) whether the judges of the circuit courts retain their visitorial power over the clerks' offices.

For the reasons given below, we conclude that:

1. Payment of the salaries and wages for employees of the clerks' offices must be handled by the Central Payroll Bureau, subject to the Governor's authority to permit a delay in the conversion to the Bureau's payroll system.
2. The fiscal affairs of the clerks' offices are now subject to greater oversight by the Comptroller than before the ratification of the amendment. The Comptroller not only retains his previous authority to review the clerks' annual budgets, but also now has additional authority to superintend the expenditures and accounting procedures of the clerks' offices.
3. The judges of the circuit courts retain their visitorial power over the clerks' offices.

I
1986 Amendment of Article IV, §10

In 1986 the General Assembly determined that Article IV, §10 of the Maryland Constitution should be amended so as to provide for the funding of the offices of the Clerks of the Circuit Courts through the State budget, rather than by means of their respective revenues. Chapter 722, Laws of Maryland 1986. Pursuant to the requirements of Article XIV of the Constitution, the proposed amendment to Article IV, §10 was placed on the ballot for the November 6, 1986 general election for adoption or rejection by the qualified voters of this State. The amendment was adopted.

Prior to the 1986 amendment, Article IV, §10 provided that the clerks "shall... be allowed the fees" generated by their offices.1 The amendment deleted that phrase and added the following new language:

"(b) The offices of the Clerks shall be funded through the State budget. All fees, commissions, or other revenues established by law for these offices shall be State revenues, unless provided otherwise by the General Assembly."

The historical background of this constitutional amendment clearly indicates that one of the purposes of the amendment was to provide for State-level budgetary oversight of the clerks' offices. In the 1982 Report of the Chairmen of the Senate Budget and Taxation Committee and House Appropriations Committee, the Committee Narrative accompanying item 24.06.00.01, dealing with the budget supplement for the clerks of the court, stated:

"The Committees are concerned that the numerous provisions contained in the State Constitution and Code complicate the uniformity of administration and sound fiscal control that should exist in the offices of the Clerks of the Court. The Committees recommend that the Legislative Policy Committee appoint an appropriate committee or task force during the 1982 interim to study the various legal provisions pertaining to the Clerks, the variation in functions performed by the individual offices, and the variation in costs charged to the individual offices of the Clerks and to their respective jurisdictions. The purpose of this study would be to propose corrective legislation to obtain uniformity in services provided and the associated costs paid by each office of the Clerks of the Court."

Two years later, the General Assembly added to the budget bill for fiscal year 1985 language restricting expenditure of the appropriation to the clerks' offices "unless the Budget Committees shall receive and approve the report of the Task Force on Clerks of the Court. ..." Chapter 81, Laws of Maryland 1984 (item 24.06.00.01). The Task Force, which was established by the Legislative Policy Committee at the request of the Budget Committee Chairmen, examined three topics: "the funding basis of the clerks' offices, state level budgetary oversight of clerks' offices and functions of clerks' offices." Report of the Clerks of Court Task Force 1 (November 1984) ("Task Force Report") (emphasis added).2

After reviewing the issues and hearing testimony from the Office of the Attorney General, the Deputy Comptroller, the Clerks' Association, the Chief Judge of the Court of Appeals, the Secretary of Budget and Fiscal Planning, the Clerk of the Circuit Court for Baltimore City, the Clerk of the Circuit Court for Howard County, the Maryland Association of Counties, and the City of Baltimore, the Task Force recommended:

"That the State Constitution be amended to provide that clerks' offices shall no longer be funded from the fees of their office. Instead, revenues of the clerks should be revenues of the State and clerks' operations should be provided for through the State budget. This change would eliminate concentration on revenues of clerks' offices in evaluating their budgetary requirements, while providing state level oversight of the expenditure of public funds. It is anticipated that this mechanism will provide for stable funding of clerks' offices in accordance with their requirements." Task Force Report at 7 (emphasis in original).

Thus, the constitutional amendment eliminated the funding of clerks' offices from the fees collected by each office, as supplemented from the State budget pursuant to §2-504.1(c) of the Courts Article ("CJ" Article) when needed to augment revenues. Under Article IV, §10 of the Constitution, as amended, the clerks' offices "shall be funded through the State budget" with all revenues being turned over to the Treasurer.

II
State Fiscal Procedures

When the clerks' offices were fee offices, many of the laws governing the ordinary budget and appropriations process did not apply to them. CJ §2-205.1(a) required the clerks to deposit their receipts "in a State depository"; but these funds, to be "available to each . . . clerk as needed," were "not placed in the State treasury, or subject to appropriation by the General Assembly." CJ §2-205.1(b).

On the other hand, the clerks' offices were not free from regulation. Article XV, §1 of the Constitution imposed recordkeeping requirements on fee offices like the clerks' and required remission of any annual surplus to the State Treasury. Moreover, CJ §2-205 required each clerk to file annually with the Comptroller "an accurate account" of receipts and expenditures.

The General Assembly also provided a special statutory budgeting procedure for the clerks. Under CJ §2-504.1(b), each clerk's annual budget is required to provide certain data, is "submitted to the Comptroller in a uniform format as prescribed by the Secretary of Budget and Fiscal Planning," and is "subject to review by the Comptroller and the State Court Administrator . . . ." The clerks' budgets are "included in the State budget as part of the budget for the executive branch of State government." CJ §2-504.1(b)(4). The statute also authorizes the Governor to include in the budget funds to supplement the clerks' fee revenues. CJ §2-504.1(c).

As a consequence of the constitutional amendment, some of these requirements no longer are applicable. The revenues of the clerks' offices are expressly termed "State revenues." Article IV, §10(b). As such, the revenues are to be deposited in the State Treasury. Article VI, §3 of the Constitution.

Article III, §32 of the Constitution provides that "[n]o money shall be drawn from the Treasury of the State . . . except in accordance with an appropriation by Law."3 See also §7-202 of the State Finance and Procurement Article ("SF" Article). See generally 68 Opinions of the Attorney General 86 (1983).

Article III, §52 sets forth, in detail, the procedures by which an appropriation is to be made. In light of the amendment to Article IV, §10, the annual budget bill henceforth will include as State revenues the estimated fees and receipts of the clerks' offices for the fiscal year covered by the budget. The budget also will reflect, as an appropriation from State funds, the proposed expenditures by the clerks' offices. The provision authorizing a budgetary supplement to the clerks' fees, CJ §2-504.1(c), will no longer be effective.

However, CJ §2-504.1 has not been repealed, and there is no inconsistency between its procedural requirements and the constitutional amendment. We conclude that the clerks should continue to prepare their budgets in accordance with CJ §2-504.1(a) and (b). As before, their budgets will be "part of the budget for the executive branch . . . ." CJ §2-504.1(b)(4).

The Comptroller's authority under CJ §2-504.1(b)(3) to review the clerks' budgets is unaffected by the constitutional amendment. Likewise, the Comptroller retains the authority granted by CJ §2-505 over the compensation of the clerks' employees. At the same time, the constitutional amendment effectively augments the Comptroller's authority in one important respect: the expenditures and accounting procedures of the clerks' offices are now subject to the same oversight and superintendance as the Comptroller exercises over other agencies funded through appropriations instead of fees. See Article IV, §2 of the Constitution and SF §§7-216 through 7-223 and 7-401.

III
Payment of Salaries by Central Payroll Bureau

Article 64A, §38A(a) requires the Central Payroll Bureau of the Comptroller's Office to "handle and provide for the payment of all salaries and wages ... for and to all officers and employees of the State or any agency thereof whose salaries or wages are paid from funds appropriated by the General Assembly . . . ." Article 64A, §38A(c) provides that "the term 'employee' as used in this section shall include nonclassified employees as well as classified employees." Now that all of the expenditures of the clerks' offices, including salaries, will be funded by means of an appropriation, the provisions of Article 64A, §38A apply even though some officers and employees of the clerks' offices are excepted by Article 64A, §3 from the classified service system.4

Article 64A, §38A(b) provides that, "with respect to any officers or employees . . . whose salaries or wages are not, on July 1, 1973, handled by the Central Payroll Bureau, the Bureau shall commence such handling at such date or dates as may be designated by the Governor from time to time." The phrase "at such date ... as may be designated by the Governor" is somewhat ambiguous. It can be read to mean "if designated by the Governor", that is, an office outside the Bureau's purview on July 1, 1973 is to remain outside unless the Governor provides for inclusion. However, we read the phrase "the Bureau shall commence, such handling" as reflecting a legislative intent that even the "grandfathered" officers and employees be included in the Bureau's system. The grant of discretion to the Governor is intended, we think, simply to allow for an orderly transition to the Bureau's payroll system. Hence, we conclude that the payrolls of the clerks' offices are to be handled by the Bureau as soon as is practicable, subject to the Governor's authority to provide for a deferred effective date for the conversion.5

IV
Visitorial Power of Judges

Under Article IV, §10 of the Constitution, the office and business of the clerks are "subject to the visitorial power of the Judges of their respective Courts," who may "make, from time to time, 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 . . . ." This portion of Article IV, §10 was unaffected by the 1986 amendment.

Therefore, the judges retain their power of "supervision, regulation, and direction of how the Clerks are to perform their duties." 68 Opinions of the Attorney General 96, 97 (1983) (emphasis in original). See Peter v. Prettyman, 62 Md. 566 (1884). The judges also retain their right under Article IV, §26 of the Constitution to designate the number of deputy clerks needed in the office, their right under CJ §2-204 and Maryland Rule 1215 to prescribe additional hours and days on which the clerk's office shall be open, and any other rights over the clerk's office afforded by law. Of course, if the carrying out of the judges' direction would entail the expenditure of funds, that expenditure must be consistent with applicable State requirements. See Part II above. See generally 69 Opinions of the Attorney General 57 (1984).

V
Conclusion

In summary, it is our opinion that, as a result of the 1986 amendment to Article IV, §10 of the Constitution:

1. Payment of the salaries and wages for employees of the clerks' offices must be handled by the Central Payroll Bureau, subject to the Governor's authority to permit a delay in the conversion to the Bureau's payroll system.
2. The fiscal affairs of the clerks' offices are now subject to greater oversight by the Comptroller than before the ratification of the amendment. The Comptroller not only retains his previous authority to review the clerks' annual budgets, but also now has additional authority to superintend the expenditures and accounting procedures of the clerks' offices.
3. The judges of the circuit courts retain their visitorial power over the clerks' offices.

J. Joseph Curran, Jr., Attorney General
Julia M. Freit, Assistant Attorney General

Jack Schwartz,
Chief Counsel
Opinions and Advice

1 Former Article IV, §10 provided that: "The Clerks of the several Courts, created, or continued by this Constitution, . . . 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."

2 The Task Force highlighted some of the background of, and reasons for, State control over the clerks' budgets: "Related to the basis of funding is the matter of budgetary control. Under the Constitution, the clerks are Constitutional officers elected at the county level. In operation of their offices, they are subject to the 'visitorial' powers of local Circuit Court judges. Clerks may appoint as many employees as their judges deem necessary. The Comptroller, by statute, sets salaries for clerks' offices and must approve operating expenditures. The General Assembly has attempted to further supervise clerks' operations by requiring by general statute that clerks submit budgets for legislative approval and by budget language attempting, first, to empower the Comptroller (for fiscal years 1983 and 1984) and then the Budget Committees (for fiscal year 1985) to withhold approval of additional positions not budgeted. The Attorney General has determined that the legislature can require budgets to be submitted, but has no approval power over them. This is because the Constitution provides that clerks' offices are funded in the first instance by fees and commissions, which are not subject to state appropriation. Likewise, the Comptroller and the Budget Committees lack the power, despite the budget language, to prevent establishment of positions not in submitted budgets, at least where the clerks' office has sufficient revenues to support its operations. This issue recently came to a head when the Comptroller refused to set a salary for two additional employees a judge ordered the Clerk of Worcester County to appoint. The Attorney General has advised that the Comptroller must set salaries for those positions." Task Force Report at 2.

3 Article III, §32 provides, in full, as follows: "No money shall be drawn from the Treasury of the State, by any order or resolution, nor except in accordance with an appropriation by Law; and every such Law shall distinctly specify the sum appropriated, and the object, to which it shall be applied; provided, that nothing herein contained, shall prevent the General Assembly from placing a contingent fund at the disposal of the Executive, who shall report to the General Assembly, at each Session, the amount expended, and the purposes to which it was applied. An accurate statement of the receipts and expenditures of the public money, shall be attached to, and published with the Laws, after each regular Session of the General Assembly."

4 The change in the law brought about by the constitutional amendment supersedes this office's prior conclusion that the clerks' offices were not subject to mandatory inclusion in the Bureau's payroll system. 68 Opinions of the Attorney General 96 (1983).

5 As we understand it, a transition from the clerks' current payroll system to the Central Payroll Bureau can be effected without significant disruption or delay in any paycheck.