Can someone serve in Maryland's House of Delegates while also working as a state university police officer?

Plain-English summary

In 1987, the Speaker of Maryland's House of Delegates asked the Attorney General whether a person elected to the House of Delegates could continue serving as an officer of the University of Maryland Police Force after taking the oath of office as a Delegate.

The Attorney General concluded that simultaneous service in both positions was prohibited by Article 35 of the Maryland Declaration of Rights, which bars anyone from holding more than one "office of profit" at the same time. Applying the office's own five-part test for what counts as an "office of profit" (a position created by law with continuing duties, that performs an important public duty, that exercises some portion of the State's sovereign power, that has a defined term with a commission, bond, and oath, and that carries dignity and importance), the opinion found that a University of Maryland police officer clearly qualifies, since the officer holds all the powers of a peace and police officer in the state, takes an oath of office, and exercises a portion of the State's sovereignty through the daily authority to enforce the criminal law. Because members of the General Assembly already unquestionably hold an office of profit, the opinion concluded that a Delegate-elect who takes the oath of office automatically abandons the police officer position by operation of law, without the need for any separate resignation.

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

If a University of Maryland police officer won a seat in Maryland's House of Delegates in 1987, did they have to formally resign the police job?
No separate resignation was needed, according to this opinion. The Attorney General concluded that taking the oath of office as a Delegate automatically caused the officer to abandon the police position "by operation of law," since Maryland's Constitution bars holding two offices of profit at the same time.

Why did the Attorney General treat a university police officer as holding an "office of profit" in the constitutional sense, rather than just a regular job?
The opinion applied a five-factor test the office had used before: the position had to be created by law with continuing duties, involve an important public duty, exercise some part of the state's sovereign power, have a defined term with a commission, bond, and oath, and carry dignity and importance. The opinion found a police officer's authority to enforce criminal law on a daily basis, combined with the oath of office, satisfied all of these factors.

Does this same rule apply to any other combination of Maryland public offices, not just delegates and police officers?
This opinion addressed only the police officer and House of Delegates combination, since it already resolved the case based on the officer-of-profit conflict, but the underlying Article 35 principle applies generally: a person cannot hold two Maryland offices of profit created by the Constitution or state law at the same time, whatever those two offices happen to be.

Background and statutory framework

Article 35 of the Declaration of Rights provides that "no person shall hold, at the same time, more than one office of profit, created by the Constitution or Laws of this State." Maryland courts have long held that when someone holding one office of profit accepts a second, the first office is automatically deemed abandoned, without any need for a formal resignation.

This office had previously distilled a five-part test for identifying an "office of profit": the position must be created by law and involve continuing, not occasional, duties; the holder must perform an important public duty; the position must call for exercising some portion of the State's sovereign power; the position must have a definite term with a commission, bond, and oath; and the position must carry dignity and importance. Of these factors, the most important is whether the position exercises some of the sovereign powers of government for the public's benefit.

Members of the General Assembly indisputably hold an office of profit, so the only question was whether a University of Maryland police officer also does. Under §13-107(b)(1) of the Education Article, a University of Maryland police officer has all the powers of a peace and police officer in the state. The opinion found the officer satisfies every element of the test: the position is created by law, involves continuing duties, requires an oath of office, and, most importantly, involves exercising a portion of the State's sovereignty through the daily authority to enforce the criminal laws, quoting the Court of Special Appeals' observation that a police officer exercises some of the powers of the state on a daily, if not minute-to-minute, basis even without necessarily serving a fixed term. The officer also receives a salary, satisfying the "of profit" element. On that basis, the opinion concluded a sitting or newly elected Delegate cannot simultaneously hold a University of Maryland police officer position, and taking the legislative oath automatically ends the police position by operation of law.

Citations

Statutes:

• Article 35 of the Maryland Declaration of Rights (prohibition on holding more than one office of profit)
• §13-107(b)(1) of the Education Article (University of Maryland police officer's powers as a peace and police officer)
• Article III, §11 of the Maryland Constitution (separate constitutional restriction on dual office-holding by legislators, not reached in this opinion)

Cases:

• Hetrich v. County Commissioners, 222 Md. 304, 308 (1960)
• Truitt v. Collins, 122 Md. 526, 530 (1914)
• Board of Supervisors of Elections v. Attorney General, 246 Md. 417, 439 (1967)
• Duncan v. Koustenis, 260 Md. 98, 105 (1970)
• Macy v. Heverin, 44 Md. App. 358, 362 (1979)

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.

PUBLIC OFFICERS

"Office Of Profit"—General Assembly—Police Officer—Simultaneous Service As Member Of House Of Delegates And Officer Of University Of Maryland Police Force Prohibited.

January 13, 1987

The Honorable R. Clayton Mitchell, Jr.
Maryland House Of Delegates

You have requested our opinion on whether a person who has been elected to the House of Delegates may continue to serve as an officer of the University of Maryland Police Force after taking the oath of office as a Delegate.

For the reasons stated below, we conclude that simultaneous service as a member of the House of Delegates and an officer of the University of Maryland Police Force is prohibited by Article 35 of the Maryland Declaration of Rights. Accordingly, upon taking the oath of office as a Delegate, the member will have abandoned, by operation of law, his position as a police officer.

I
Discussion

Article 35 of the Declaration of Rights provides, in pertinent part, that "no person shall hold, at the same time, more than one office of profit, created by the Constitution or Laws of this State . . . ." When a person who holds one office of profit accepts a second office of profit, the first office is deemed to have been abandoned. Hetrich v. County Commissioners, 222 Md. 304, 308 (1960); Truitt v. Collins, 122 Md. 526, 530 (1914); 59 Opinions of the Attorney General 121, 127 (1974); 48 Opinions of the Attorney General 323, 324 (1963).

This office has summarized the criteria for determining an "office of profit" as follows:

"1. The position was created by law and involves continuing and not occasional duties.

2. The holder 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 and a bond and an oath are required.

5. The position is one of dignity and importance." 59 Opinions of the Attorney General 154, 156 (1974).

See Board of Supervisors of Elections v. Attorney General, 246 Md. 417, 439 (1967). See also, e.g., 65 Opinions of the Attorney General 285, 286 (1980). Of these tests, "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.'" 68 Opinions of the Attorney General 358, 361 (1983) (quoting Duncan v. Koustenis, 260 Md. 98, 105 (1970)).

Members of the General Assembly unquestionably hold an "office of profit." 50 Opinions of the Attorney General 57, 63 (1965). Therefore, the determinative question is whether an officer of the University of Maryland Police Force also holds an office of profit.1

Under §13-107(b)(1) of the Education Article, "[a] University of Maryland police officer is and has all the powers of a peace and police officer in this State." Applying the pertinent criteria, we have no doubt that a police officer, including a University of Maryland police officer, holds an office of profit.

A police officer exercises a portion of the sovereignty of the State through the authority to enforce the criminal laws. Moreover, an officer takes an oath of office and plainly performs important public duties that are continuing in nature. As the Court of Special Appeals observed:

"[A] police officer has been held to be a public official even though the officer does not generally serve for a fixed term . . . . The police officer does, however, take an oath, exercise on a daily, if not minute-to-minute basis, some of the powers of the State and exercises those powers for the benefit of the public." Macy v. Heverin, 44 Md. App. 358, 362 (1979).

See also 22 Opinions of the Attorney General 473 (1937) (constables, as "peace officers," hold office of profit); 22 Opinions of the Attorney General 470 (1937) (special policeman, "endowed with all the powers of common law constables and City policemen," holds office of profit).

II
Conclusion

In summary, it is our opinion that a police officer, including a University of Maryland police officer, holds an "office of profit," within the meaning of Article 35 of the Declaration of Rights. Therefore, simultaneous service as a member of the General Assembly and a University of Maryland police officer is prohibited. A police officer who takes the oath of office as a member of the General Assembly thereby abandons the former position.2

J. Joseph Curran, Jr., Attorney General

Jack Schwartz
Chief Counsel
Opinions and Advice

1 A University of Maryland police officer receives a salary. Therefore, the office is "of profit." See 60 Opinions of the Attorney General 121, 124 (1975).

2 In light of this conclusion, we need not consider another constitutional restriction on the holding of a second office by a member of the General Assembly. See Article III, §11. See generally 59 Opinions of the Attorney General 121 (1974).