Can a Maryland state prosecutor also serve as a special assistant state's attorney for a different county without giving up their regular job?

Plain-English summary

A Talbot County State's Attorney asked the Attorney General a set of questions prompted by the Court of Special Appeals' decision in Goldberg v. State, which had discussed, in passing, whether Assistant State's Attorneys, Deputy State's Attorneys, and Special Assistant State's Attorneys hold public office and whether combining these roles across jurisdictions might be legally incompatible. The questions covered whether these positions are "offices of profit," and whether a State's Attorney, an Assistant Attorney General, a State Prosecutor, a county council member, or a legislator would forfeit their existing post by also serving as a Special Assistant State's Attorney for another county.

The Attorney General concluded that Assistant and Deputy State's Attorneys, Assistant and Deputy Attorneys General, and Assistant and Deputy State Prosecutors are not public officers at all, chiefly because none of them exercise prosecutorial authority "in their own right"; they act under the direction and supervision of the State's Attorney, Attorney General, or State Prosecutor who appointed them. Because they hold no office of profit, none of them would be considered to have vacated their existing position by also serving as a Special Assistant State's Attorney elsewhere, and the common law rule against holding two incompatible positions was not violated either, since none of these roles supervises or controls another. The opinion flagged more serious concerns, without resolving them, about an Attorney General or an elected official such as a county council member or legislator taking on the same cross-appointment, given their own supervisory or budget-setting relationships with the State's Attorney's office.

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

Under this 1987 opinion, did an Assistant State's Attorney in one Maryland county lose that job by helping prosecute a case in another county as a Special Assistant State's Attorney?
No. The opinion concluded that none of these prosecutorial assistant positions, including the Special Assistant role, qualifies as a public "office of profit," so accepting the second position did not trigger Maryland's rule that holding a second office of profit automatically vacates the first.

Why did the Attorney General conclude that an Assistant State's Attorney is not a public officer at all?
The opinion applied the office's long-standing test, under which the key factor is whether a position lets someone exercise sovereign power "in his own right." Assistant and Deputy State's Attorneys act "under the direction" of the State's Attorney who appointed them, have no fixed term, post no bond, and are not required by law to take an oath, so the opinion found they are employees rather than officers.

Did the opinion say it would be fine for the Attorney General personally, or a sitting legislator, to take a Special Assistant State's Attorney role in another county?
No, it specifically declined to give a clear answer there. The opinion flagged that the Attorney General's constitutional role in recommending removal of State's Attorneys, and a legislator's or county council member's role in setting the State's Attorney's budget or salary, could create the kind of supervisory conflict that the incompatibility doctrine is meant to prevent, and recommended a separate ethics opinion before any such appointment.

Background and statutory framework

Article 35 of the Maryland Declaration of Rights bars anyone from holding, at the same time, more than one "office of profit" created by the Constitution or state law; when someone holding one office of profit accepts a second, the first office is automatically deemed abandoned. Separately, the common law doctrine of incompatibility, to the extent not altered by the State Public Ethics Law, bars a person from holding two positions where a present or prospective conflict of interest exists, such as when one position supervises, appoints, removes, or sets the pay of the other.

The opinion applied the Court of Appeals' traditional five-factor test for a public office from Board of Supervisors of Elections v. Attorney General, with the most important factor being whether the position lets its holder exercise sovereign power in his or her own right. Applying that test, and drawing on decades of the office's own prior opinions and Court of Appeals decisions including Gary v. Board of Trustees and Hammond v. Lancaster, the opinion found that Assistant and Deputy State's Attorneys, and by the same reasoning Assistant and Deputy Attorneys General and Assistant and Deputy State Prosecutors, act under the direction of their appointing prosecutor, hold no fixed term, need not post bond, and are not required by law to take an oath, so they are employees rather than public officers, even though some assistants do take an oath in practice and enjoy prosecutorial immunity under Imbler v. Pachtman. The opinion likewise found that a Special Assistant State's Attorney, a position the Court of Special Appeals had discussed in Goldberg v. State, is subject to the same control by the appointing State's Attorney and displays no greater indicia of public office than an ordinary assistant.

Because none of these positions is an office of profit, the opinion concluded that an Assistant or Deputy State's Attorney, Assistant or Deputy Attorney General, or Assistant or Deputy State Prosecutor could serve as a Special Assistant State's Attorney elsewhere without triggering Article 35's automatic-vacatur rule, and that the common law incompatibility doctrine was not violated either, since neither position supervises or controls the other. The opinion was more cautious about the Attorney General personally, or a County Council member or General Assembly member, taking such a role, given their separate constitutional or budgetary relationships to a State's Attorney's office, and recommended that an ethics opinion be sought before such an appointment was made. The opinion also discussed a new statute, Chapter 737 of the 1987 Laws of Maryland, which added language to Article 10, §40(u)(5) specific to Talbot County stating that a temporary Special Assistant State's Attorney there is not considered to hold an office of profit and does not vacate any other public office or employment by virtue of that service, while noting this legislative declaration would not bind a court but still evidenced the General Assembly's intent on the question.

Citations

Statutes:

• Article 35 of the Maryland Declaration of Rights (bar on holding more than one office of profit at the same time)
• Article 10, §34 of the Maryland Code (State's Attorney's duty to prosecute and defend cases of interest to the State)
• Article 10, §40 of the Maryland Code (county-specific provisions governing Deputy and Assistant State's Attorneys)
• Article V, §7 of the Maryland Constitution (Attorney General's duty to recommend removal of State's Attorneys)
• Article V, §9 of the Maryland Constitution (appointment of Deputy and Assistant State's Attorneys in Baltimore City)
• §2-102(b) of the Courts Article (court appointment of assistant counsel/special prosecutor)
• Chapter 737, Laws of Maryland 1987 (Talbot County provision on Special Assistant State's Attorneys)

Cases:

• Goldberg v. State, 69 Md. App. 702 (1987)
• Hetrich v. County Commissioners, 222 Md. 304 (1960)
• Board of Supervisors of Elections v. Attorney General, 246 Md. 417, 439 (1967)
• Carder v. Steiner, 225 Md. 271 (1961)
• Gary v. Board of Trustees, 223 Md. 446, 450-51 (1960)
• Duncan v. Koustenis, 260 Md. 98, 105 (1970)
• Hammond v. Lancaster, 194 Md. 462, 477 (1949)
• State v. Ensor, 277 Md. 529, 532, 548 (1976)
• Leese v. Baltimore County, 64 Md. App. 442, 479 (1985)
• Imbler v. Pachtman, 424 U.S. 409, 421-24 (1976)
• Moser v. Board of County Commissioners, 235 Md. 279, 284 (1964)

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"—Incompatible Positions—Deputy, Assistant, and Special Assistant State's Attorneys Do Not Hold Public Office.

November 9, 1987

The Honorable Philip Carey Foster
State's Attorney for Talbot County

You have requested our opinion on the applicability of dual office prohibitions to various positions, particularly those of Assistant State's Attorney, Deputy State's Attorney, and Special Assistant State's Attorney. Specifically, you have asked the following questions:

(1) Are the positions of Assistant State's Attorney and Deputy State's Attorney offices of profit or public offices?

(2) Is the position of Special Assistant State's Attorney an office of profit or public office?

(3) Do any of the following persons vacate the positions they hold if they serve as a Special Assistant State's Attorney:
(a) a State's Attorney;
(b) an Assistant or Deputy State's Attorney;
(c) the Attorney General;
(d) an Assistant or Deputy Attorney General;
(e) the State Prosecutor;
(f) an Assistant or Deputy State Prosecutor;
(g) any other elected official, for example, members of a county council or the General Assembly.

(4) Do any factors, such as the duration of the special appointment, whether compensation is paid for the special appointment, or the particular function to be performed, have any impact on any of the above questions?

(5) If the position of Special Assistant State's Attorney is an office of profit or if legal difficulties result from exchanging prosecutors between jurisdictions, does Chapter 737, Laws of Maryland 1987, solve these problems for Talbot County?

For reasons given below, we conclude in response to your principal questions that the positions of Assistant State's Attorney, Deputy State's Attorney, and Special Assistant State's Attorney are neither offices of profit nor public offices. Persons who hold these positions may serve as Special Assistant State's Attorneys. The answers to your remaining questions appear below under the appropriate heading.

I
Background

A. The Goldberg Decision

The primary stimulus for your inquiries is the opinion of the Court of Special Appeals in Goldberg v. State, 69 Md. App. 702 (1987), cert. granted 309 Md. 521 (1987). In this case, the defendant appealed a conviction principally on the ground that a Deputy or Assistant State Prosecutor could not be appointed or serve as a Special Assistant State's Attorney. In affirming the conviction, the Court of Special Appeals declined to rule on the issue of whether the positions in question were offices of profit. 69 Md. App. at 718. It also did not hold that the positions were incompatible. 69 Md. App. at 721. It simply stated that the consequence of holding two offices of profit or incompatible posts would be the vacating of the former positions, not the invalidation of either the appointment of the Special Assistant State's Attorney or the indictment obtained. 69 Md. App. at 718 and 721-22.

However, in dicta, the Goldberg opinion referred to all of the positions as "offices" and suggested that the positions might be incompatible. 69 Md. App. at 720-21. The Goldberg case is now pending in the Court of Appeals and the Attorney General's Office has asked the Court to clarify and correct the lower court's dicta.1

B. Dual Office Restrictions Generally

The general constitutional proscription against holding certain dual offices is found in Article 35 of the Maryland Declaration of Rights, which provides in relevant 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 . . . ."2 To the extent that it has not been altered by the State Public Ethics Law, Article 40A of the Maryland Code, the common law of Maryland also prohibits the holding of incompatible offices and positions. Hetrich v. County Commissioners, 222 Md. 304 (1960); 60 Opinions of the Attorney General 121, 133-34 (1975).

The initial issue to be considered in determining whether these prohibitions have been violated is whether either of the positions held by the person in question is an "office." The traditional criteria for a public office were set out by the Court of Appeals in Board of Supervisors of Elections v. Attorney General, 246 Md. 417, 439 (1967):

"1. the 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."

In terms of the weight to be given these factors, the Court of Appeals has ascribed the least significance to the "dignity and importance" component. See Carder v. Steiner, 225 Md. 271 (1961). Somewhat greater importance is given to the oath requirement. See Gary v. Board of Trustees, 223 Md. 446, 450-51 (1960). But of these criteria, "the single most important characteristic of a public officer is that the 'public servant exercises in his own right some of the sovereign power 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)). Almost invariably, if a person does not exercise sovereignty in his or her own right, that person will be found to be an "employee" and not a "public officer." See, e.g., Gary v. Board of Trustees, 223 Md. at 450.

Even if a position constitutes an "office" under these tests, it will not be an "office of profit" within the meaning of Article 35 of the Declaration of Rights unless compensation in the form of salaries, fees, or the like attaches to the office. See 60 Opinions of the Attorney General 121, 124 (1975); 24 Opinions of the Attorney General 618 (1939); 11 Opinions of the Attorney General 236 (1926).

Finally, in Hetrich v. County Commissioners, the Court of Appeals summarized the test for incompatibility as follows: "The fundamental test of incompatibility at common law is whether there is a present or prospective conflict of interest, as where one office is subordinate to the other or subject to supervision by the other, or where the incumbent of one office has the power to appoint or remove or to set the salary of the other." 222 Md. at 308. Because the incompatibility doctrine is a common law rule, it can be altered, modified, or abrogated by statute. See 60 Opinions of the Attorney General 121 at 134.

With these principles in mind, we turn to the questions you have raised.

II
Status of Deputy and Assistant State's Attorneys

In 44 Opinions of the Attorney General 110 (1959), Attorney General Sybert concluded that the position of Deputy State's Attorney in Frederick County, established by Senate Bill 90 of the 1959 Session of the General Assembly, was not a public office. The opinion noted that:

"Senate Bill No. 90 does not require that the Deputy State's Attorney for Frederick County post a bond or take the oath of office before assuming his duties, and we have found no other provisions in either the Constitution or the statutes of this State which require that he do so. The Bill provides for no definite term of office for the position, but simply provides that the Deputy State's Attorney shall be appointed by the State's Attorney with the approval of the resident Judge of the Circuit Court for Frederick County. There is no provision in the Bill that he receive a commission . . . . The only other question to be determined is whether or not, under the provisions of this Bill, the Deputy State's Attorney for Frederick County will exercise a part of the sovereignty of the State. We are of the opinion that he will not since the statute specifically provides that his duties shall be performed under the direction of the State's Attorney. This means that any decisions made will be those of the State's Attorney and the Deputy State's Attorney will simply carry them out under his supervision. He will be an employee and agent of the State's Attorney and simply act under his guidance. We have inquired and found that in the other counties of the State where the position of Deputy State's Attorney exists, the position has always been treated as a mere employment rather than as an office. . . ." 44 Opinions of the Attorney General at 111-12.

This conclusion was reaffirmed in later opinions. See, e.g., 59 Opinions of the Attorney General 121, 122 (1974); 57 Opinions of the Attorney General 595, 600 (1972). In 1963, Attorney General Finan reached a similar conclusion with respect to the position of Assistant State's Attorney. 48 Opinions of the Attorney General 323, 325 (1963).

Although a number of factors touching on the status of Deputy and Assistant State's Attorneys have changed since the issuance of these opinions, we see no reason to alter the office's earlier conclusions. For example, a quarter of a century ago, most State's Attorneys were not expressly authorized by Article 10, §40 of the Maryland Code to appoint deputies or assistants, though they impliedly had that power. Now Article 10, §40 contains a separate provision for each county State's Attorney's office, which typically governs the appointment of Deputy and Assistant State's Attorneys.3 In addition, these modern provisions in most cases specify the powers and duties of deputies and assistants, typically stating that they have "the same legal powers as the State's Attorney" to represent the State before grand juries in the trial of criminal proceedings and in other matters. See, e.g., Article 10, §40(d)(5) and (x)(2). As to some jurisdictions, §40 qualifies this grant of power by expressly stating what we believe is implied as to the others—that assistants and deputies exercise their powers "under the direction" of the State's Attorney. See, e.g., Article 10, §40(n)(6) and (p)(8).

In our view, these statutory provisions merely place some limits on numbers of assistants and obviate any question of their authority before the grand jury or in court. These provisions were not intended to make deputies and assistants independent of their respective State's Attorney or grant them discretionary power to be exercised in their own right. See Gary v. Board of Trustees, 223 Md. at 452-53.4 Nor do these provisions authorize deputies and assistants to "exercise police powers as conservators of peace." Duncan v. Koustenis, 260 Md. at 106.

We also note that §40 still does not accord deputies or assistants tenure or require a term, a commission, or the posting of a bond. Nor does the statute or the constitution require them to take an oath of office. We are fully aware that, in some counties and in Baltimore City, Assistant State's Attorneys take an oath. See State v. Ensor, 277 Md. 529, 532 (1976). But the major significance of an oath in determining whether a position is a public office lies in whether the oath is required by law. "It is not the taking of the oath that is decisive but rather the statutory requirement that it be taken, which offers legislative indication that the position is an office." Gary v. Board of Trustees, 223 Md. at 451. The law contains no such requirement for assistants and deputies. See Hammond v. Lancaster, 194 Md. 462, 477 (1949) (Assistant Attorneys General, who take no oath and serve at the pleasure of the Attorney General, are employees, not public officers.).

Finally, we do not believe that the status of assistants and deputies as "employees," rather than "officers," is undercut by the fact that these personnel enjoy prosecutorial immunity. That immunity is not grounded in Maryland's common law "official immunity," the test for which is similar to that for determining who is a public officer in other contexts. See Leese v. Baltimore County, 64 Md. App. 442, 479 (1985). Rather, the absolute prosecutorial immunity that is shared by assistant prosecutors is historically and qualitatively different from official immunity. See Imbler v. Pachtman, 424 U.S. 409, 421-24 (1976). Thus, the fact that assistants and deputies may assert prosecutorial immunity from liability does not mean that they are independent public officers, rather than employees subject to the control and direction of the State's Attorney. Because these persons are not officers, they do not hold "offices of profit," even though they are compensated for their services.

III
Status of Special Assistant State's Attorneys

State's Attorneys in some counties have explicit statutory authority to appoint "Special Assistant State's Attorneys." However, in Goldberg v. State, the Court of Special Appeals held that this power was implicit in the State's Attorney's statutory duty to prosecute and defend cases of interest to the State. 69 Md. App. at 711. See Article 10, §34.

Goldberg also distinguished the position of Special Assistant State's Attorney, appointed by the State's Attorney, from the post of "assistant counsel for the State" or "special prosecutor" appointed by a Circuit Court pursuant to §2-102(b) of the Courts Article:

"A Special Assistant State's Attorney is imbued with all the powers of a State's Attorney and may institute criminal proceedings, either by way of indictment or information. He is a member of the State's Attorney's staff, subject to the State's Attorney's control, and receives any compensation to which he is entitled from the State's Attorney. A Special Prosecutor in the form of assistant counsel for the State, however, is not a member of the State's Attorney's staff and operates independently of it. The Court, not the State's Attorney, determines the amount of compensation to which assistant counsel is entitled." 69 Md. App. at 715-716 (emphasis added).5

Thus, like other assistants, a Special Assistant State's Attorney's powers are subject to the control of the State's Attorney. Moreover, the post of Special Assistant displays no greater indicia of a public office than that of an ordinary assistant.6 Hence, it is our opinion that such a position is not a public office.7

IV
Service as Special Assistant State's Attorney

You have also asked about the consequences of service as a Special Assistant State's Attorney. Specifically, you inquire whether persons serving in various positions would vacate them if they served in the capacity of Special Assistant State's Attorney. Of the eleven positions you have mentioned, five are offices of profit—viz., State's Attorney, Attorney General, State Prosecutor, County Council member, and member of the General Assembly. The other positions—Assistant or Deputy State's Attorney, Assistant or Deputy Attorney General, and Assistant or Deputy State Prosecutor—are not.

Under Article 35 of the Declaration of Rights, a person holding an office of profit who assumes a second such office is deemed to have vacated the first. Moser v. Board of County Commissioners, 235 Md. 279, 284 (1964). However, Article 35 does not dictate that result if the second position is not an office of profit—as we have concluded is the case with regard to a Special Assistant State's Attorney.

In our view, more substantial questions are raised as to whether the appointment as Special Assistant State's Attorney of some of these persons is inconsistent with statute or violative of the common law rule of incompatibility of positions. For example, a major contention in the Goldberg case is that the State Prosecutor statute precludes the State Prosecutor, his deputy, and his assistants from serving as Special Assistant State's Attorneys. See Article 10, §§33A-33F. In addition, it also can be argued that statutory provisions requiring a State's Attorney or his assistant to "serve full time" might bar their appointment as a Special Assistant State's Attorney in another county.8 Although it is our position that these statutory provisions do not bar service as a Special Assistant State's Attorney, we prefer to await the outcome of Goldberg before giving more definite advice on the point.

Turning to the incompatibility issue, we noted earlier that the doctrine applies to "positions" as well as offices. See Part I B above. In addition, the same "penalty" that occurs when Article 35 is violated—the vacating of the initial position—can also be imposed when a second incompatible position is assumed. See Hetrich v. County Commissioners, 222 Md. at 308.

In Goldberg, the Court of Special Appeals strongly suggested that, even aside from difficulties with the State Prosecutor Law, the common law incompatibility rule might also be offended when an Assistant State Prosecutor serves as a Special Assistant State's Attorney. The Court noted that: "[A]n individual who is a member of both offices serves not one but two masters and is simultaneously subject to the supervisory control of both the State Prosecutor and the State's Attorney. We can only hypothesize the difficulties which might arise if the two masters had differing concepts respecting the prosecution of a particular cause." 69 Md. App. at 721.

However, in State v. Ensor, the Court of Appeals found it "immaterial" that an Assistant Attorney General was serving at the request of a State's Attorney as a Special Prosecutor: "A member of the bar with no such connection could have been approved in the same manner." 277 Md. at 548.

Even without the apparent authority of Ensor, we would not conclude that simultaneous service as a Special Assistant State's Attorney by Assistant and Deputy State Prosecutors, Assistant and Deputy Attorneys General, or Assistant or Deputy State's Attorneys from another jurisdiction breaches the incompatibility rule. As we see it, neither position is subordinated to the other or subject to the supervision of the other; nor are the quite similar functions of these posts "inherently inconsistent," "repugnant" to each other, or contrary to "public policy". See 63A Am. Jur.2d Public Officers and Employees §65, at 717-18 (1984); Mechem, The Law of Public Offices and Officers §422, at 269 (1890). Cf. Hetrich v. County Commissioners, 222 Md. at 308 (incompatibility found when the second office has appointment, removal, and salary-setting power over the first). In fact, such cooperation and sharing of resources among prosecutors serves a desirable public purpose. We reach the same conclusion as to service by a State's Attorney or the State Prosecutor as a Special Assistant State's Attorney, although it might be more prudent for these officers to use their staffs for such sharing arrangements.

On the other hand, incompatibility problems might well arise if the Attorney General were to serve as a Special Assistant State's Attorney, subject to the authority of a State's Attorney. Even this partial subordination might be considered incompatible with the Attorney General's duty under Article V, §7 of the Constitution to recommend removal of State's Attorneys. Similar problems might arise were a County Council member or a member of the General Assembly to serve in such a post. The counties approve the budget for the Office of State's Attorney, and the General Assembly in most cases sets the salary level for the State's Attorney and his or her assistants.9 We cannot say with certainty whether such service would or would not offend the incompatibility doctrine; in any event, we believe that an advisory opinion on the applicability of Ethics Law restrictions should be obtained before such an appointment is made.10

V
Talbot County Statute

In 1987, the General Assembly enacted Chapter 737, which added the following provision to Article 40, §10(u)(5):

"(i) The State's Attorney for Talbot County may appoint special assistant State's Attorneys as the State's Attorney for Talbot County deems necessary to serve in an investigation or a case. (ii) The compensation for a special assistant State's Attorney who is appointed under subparagraph (i) of this paragraph shall be paid by the Talbot County Council in the form and amount authorized by order of the Talbot County Circuit Court. (iii) A person who serves on a temporary basis as a special assistant State's Attorney for Talbot county may not be considered as holding an office for profit. (iv) A person may not be considered to have vacated any public office or employment in another State's Attorney's office by virtue of the person's service on a temporary basis as a special assistant State's Attorney for Talbot County. (v) A person who serves as a special assistant State's Attorney for Talbot County may not receive compensation as an employee of any other State's Attorney's office, the Office of the Attorney General, or the Office of the State Prosecutor."

The portions of this statute that seek to foreclose a finding that a Special Assistant State's Attorney does not hold an office of profit would not be binding on a court. See Bill Review Letter (House Bill 1357) from Attorney General Curran to Governor Schaefer at 2 (May 14, 1987). Nevertheless, §10(u)(5)(iv) and (v) evidence a legislative intent that the incompatibility doctrine or any potential statutory bar not be applied to an Assistant or Deputy State's Attorney, Attorney General, or State Prosecutor serving as a Special Assistant State's Attorney. In this regard, at least for Talbot County, Chapter 737 mitigates some of the legal problems we have noted.

VI
Conclusion

In summary, it is our opinion that a Deputy or Assistant State's Attorney, a Deputy or Assistant Attorney General, or a Deputy or Assistant State Prosecutor may serve as a Special Assistant State's Attorney without violating the constitutional prohibition against holding two offices of profit or the common law rule against holding two incompatible positions.

J. Joseph Curran, Jr., Attorney General
Robert A. Zarnoch, Assistant Attorney General

Jack Schwartz
Chief Counsel
Opinions and Advice

1 Ordinarily, this office refrains from issuing opinions on questions that are involved in pending litigation. However, because the practice under which one jurisdiction uses the services of another jurisdiction's prosecutors in special cases is widespread, we believe it appropriate to reiterate in this opinion—as we do in the brief in Goldberg—our view that the practice does not violate dual office prohibitions.

2 More stringent provisions governing dual office holding apply to specific classes of offices, such as legislators (Article III, §11 of the Constitution) and judges (Article 33 of the Declaration of Rights).

3 The appointment of a Deputy and Assistant State's Attorneys in Baltimore City is governed by Article V, §9 of the Maryland Constitution.

4 Only in one jurisdiction, Washington County, does the statute speak to the power of a deputy or assistant to act in the "absence" of the State's Attorney. See Article 10, §40(v)(4) ("Under the direction of the State's Attorney or in the absence of the State's Attorney, the deputy State's Attorney and the assistant State's Attorneys shall perform acts and duties in relation to all criminal proceedings, all having the same legal powers as the State's Attorney, to represent the State in all proceedings in relation to grand jury, circuit court, the District Court, boards, commissions or agencies of this State or any county or political subdivision.") Here again, we do not view this language as authorizing exercise of prosecutorial powers in the absence of prior instruction, subsequent review, and overall responsibility by the State's Attorney.

5 In 59 Opinions of the Attorney General 121, 125 (1974), this office stated that: "Ordinarily, . . . the status of the special prosecutor would be equivalent to that of a Deputy or Assistant State's Attorney, neither of whom is a holder of a public office in the constitutional sense. . . [But when] [g]iven the full authority of the State's Attorney the Special Prosecutor meets the test of exercising a portion of the sovereign power of the State. Should he in fact exercise the sovereign authority ordinarily exercised by the State's Attorney, it logically follows that a Special Prosecutor holds an office of profit. . . ." However, Goldberg's description of the independence of a Special Prosecutor, 69 Md. App. at 715, suggests that this position is in no way equivalent to that of an employee of a State's Attorney. The 1974 opinion on special prosecutors also did not appear to consider the issue of whether the "occasional" nature of the prosecutor's duties by itself removed the position from the category of public office. See Board of Supervisors of Elections v. Attorney General, 246 Md. at 439-40. Because you have raised no issue with respect to special prosecutors, there is no need to presently consider whether the 1974 opinion is correct in every respect.

6 In fact, unlike the duties of an ordinary Assistant State's Attorney, those of a Special Assistant are not "continuing in nature". See Board of Supervisors of Elections v. Attorney General, 246 Md. at 439-40.

7 Even if it were, it might not be an "office of profit." Typically, when an Assistant Attorney General or an Assistant State Prosecutor is appointed as a Special Assistant State's Attorney, he or she receives no additional compensation for that service. See Goldberg v. State, 69 Md. App. at 706.

8 A similar contention with respect to the State Prosecutor's duty of full time service is being made in Goldberg. See Article 10, §33B(k).

9 In 59 Opinions of the Attorney General 121, 127 (1974), this office stated that "we are unable to say with certainty" that appointment of a State Legislator as a special prosecutor "would not violate the separation of powers doctrine." Title 3 of the State Public Ethics Law, and county and city ordinances enacted pursuant to State law, regulate dual employment by officers and employees. However, even though there might be some overlapping between the Ethics Law restrictions and the common law rule of incompatibility, we cannot say that the entire common law doctrine has been statutorily abrogated. See 63A Am. Jur.2d Public Officers and Employees §65, at 717-18 ("The common law developed this doctrine of incompatibility to preclude a person from holding two public offices the duties of which could give rise to possible conflicts of governmental, as distinguished from personal or private, interests.").