Can a Maryland state commission adopt a bylaw requiring a stricter voting majority than the one set in its governing statute?

Plain-English summary

In 1988, a Maryland state senator asked the Attorney General whether the Chesapeake Bay Critical Area Commission could enforce its own bylaw requiring a stricter voting majority than what state law set. The Commission's bylaw, adopted in 1984, required a majority of all 26 voting members (at least 14 votes) to approve any action. But a 1986 law had set a lower bar: a majority of whatever quorum was present, which could be as few as 8 votes. The opinion concluded the Commission's stricter bylaw could not be enforced. It reasoned that once the General Assembly wrote a specific voting requirement into the Commission's governing statute, the Commission, like a municipal legislative body under long-standing Maryland case law, lost the power to require more votes than the statute demanded, even if the Commission believed a stricter rule better served the law's goal of encouraging broad participation.

Currency note

This opinion was issued in 1988. 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 Chesapeake Bay Critical Area Commission require more votes to act than the law required?
No, according to this 1988 opinion. It concluded a 1986 statute set the Commission's voting and quorum requirements, and the Commission's own bylaw demanding a stricter majority could not be enforced once the statute spoke to the issue.

Why couldn't the Commission just adopt a stricter internal rule if it thought that was better policy?
Because the opinion found that once the General Assembly set a voting standard by statute, that standard became both a floor and a ceiling: an administrative body created by the legislature cannot use its own rulemaking power to require more than the statute demands, the same principle Maryland courts had already applied to city councils and other municipal bodies.

Did the opinion think the Commission's bylaw was written in bad faith?
No. The opinion described the bylaw as a good-faith effort by the Commission to encourage broader participation in its decisions, but concluded good intentions did not give the Commission legal authority to override the statute's own voting rule.

Background and statutory framework

The Chesapeake Bay Critical Area Commission was created by Chapter 794 of the Laws of Maryland 1984 and originally had no statutory quorum or voting requirements beyond a minimum attendance rule under Natural Resources Article §8-1804(a). In 1986, the General Assembly passed Chapter 601 (House Bill 1345), adding a quorum requirement of "one member more than a majority of the full authorized membership" and a voting rule that the Commission could not act without support from "a majority of the members who are present and eligible to vote," codified at Natural Resources Article §8-1804(e)(1) and (e)(4)(ii). The opinion found this codified the common-law default rule that a simple majority of a quorum can act for a body, citing Gemeny v. Prince George's County and Zeiler v. Central Railway Co., and noted the same rule applies to administrative agencies, citing FTC v. Flotill Products, Inc.

The Commission's own bylaws, adopted in 1984, set a stricter standard: a majority of all 26 voting members, at least 14 votes, was needed to approve any action, compared to as few as 8 votes under the statutory quorum-based standard. The opinion traced a line of Maryland and out-of-state cases holding that legislative bodies cannot adopt quorum or voting rules stricter than the common law or an applicable statute permits. In Heiskel v. City of Baltimore, the Court of Appeals held the Baltimore City Council could not raise its own quorum to two-thirds because the Council could not "deprive itself by its own action of the powers that are granted to it." In Murdoch v. Strange, the Court held the Annapolis City Council could not treat a blank ballot as a dissenting vote contrary to the common-law rule. The opinion also cited out-of-state authority applying the same principle, including Borough of Florham Park v. Dept. of Health, Traino v. McCoy, and Barnett v. City of Paterson.

Applying that reasoning, the opinion concluded that because administrative agencies, like municipal corporations, derive their power from the legislature and cannot act in excess of a statutory grant (citing Annapolis v. Annapolis Waterfront Co.), the Commission's authority to adopt its own procedural rules under Natural Resources Article §8-1806 did not let it contravene the specific voting standard the 1986 law had set. The opinion acknowledged the Commission's bylaw reflected a good-faith effort to build consensus and that the Commission had operated with few contested votes since adopting it, but concluded the bylaw could no longer be given legal effect.

Citations and references

Statutes:

• Natural Resources Article §8-1804(a)
• Natural Resources Article §8-1808(d)
• Natural Resources Article §8-1809(d)
• Natural Resources Article §8-1809(b)
• Natural Resources Article §8-1811(b)
• Natural Resources Article §8-1815
• Natural Resources Article §8-1804(a)(2) and (3)
• Natural Resources Article §8-1804(c)(6)
• Natural Resources Article §8-1804(e)(1)
• Natural Resources Article §8-1804(e)(4)(ii)
• Natural Resources Article §8-1804(e)(3)
• Natural Resources Article §8-1806
• Natural Resources Article §8-1804(a)(4)
• Chapter 794 of the Laws of Maryland 1984
• Chapter 601 (House Bill 1345) of the Laws of Maryland 1986
• Chapter 306, Laws of Maryland 1987

Cases:

• Gemeny v. Prince George's County, 264 Md. 85, 88, 285 A.2d 602 (1972)
• Zeiler v. Central Railway Co., 84 Md. 304, 322-323 (1896)
• FTC v. Flotill Products, Inc., 389 U.S. 179, 184-85 (1967)
• Heiskel v. City of Baltimore, 65 Md. 125, 149 (1886)
• Murdoch v. Strange, 99 Md. 89 (1904)
• Borough of Florham Park v. Dept. of Health, 146 A. 354 (N.J. 1929)
• Traino v. McCoy, 455 A.2d 602, 607 (N.J. Super. 1982)
• Barnett v. City of Paterson, 6 A. 15 (N.J. 1886)
• Annapolis v. Annapolis Waterfront Co., 284 Md. 383, 394, 396 A.2d 1080 (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/1988/Volume73_1988.pdf

Original opinion text

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

ADMINISTRATIVE LAW

Voting Procedures—Chesapeake Bay Critical Area Commission—Commission May Not Set Voting Requirement Different From That In Statute.

October 7, 1988

The Honorable Walter M. Baker
Senate of Maryland

You have asked for our opinion concerning the scope of the Chesapeake Bay Critical Area Commission's authority to adopt rules concerning its voting procedures. Specifically, you have asked whether the Commission has the authority to adopt a voting requirement stricter than that provided by statute.

For the reasons stated below, we conclude that the Commission may not apply a voting requirement different from the requirement set out in the statute.

I

Background

The Chesapeake Bay Critical Area Commission, created by Chapter 794 of the Laws of Maryland 1984, consists of 26 voting members appointed by the Governor. §8-1804(a) of the Natural Resources Article ("NR" Article).1 It has the authority to develop criteria for local programs to protect the Chesapeake Bay, NR §8-1808(d); to review local programs, NR §8-1809(d); to develop programs for those local jurisdictions that fail to do so themselves, NR §8-1809(b); to review certain project approvals, NR §8-1811(b); and to enforce the subtitle, NR §8-1815.

The General Assembly provided for geographic and interest group diversity in the Commission's composition. NR §8-1804(a)(2) and (3). Moreover, the General Assembly sought to assure active participation by the members, through the device of a minimum attendance requirement. NR §8-1804(c)(6). See Opinion No. 86-024, at 4 (April 2, 1986) (unpublished). However, the original statute had no quorum or voting requirements.

Two years after the Commission was created, the General Assembly enacted Chapter 601 (House Bill 1345) of the Laws of Maryland 1986, setting quorum and voting requirements for the Commission. NR §8-1804(e)(1) provides that a quorum "consists of one member more than a majority of the full authorized membership of the Commission." Thus, the statute increased the number previously required for a quorum under the common law.2 In addition, the law now provides that the Commission may not take any action unless it is supported by "a majority of the members who are present and eligible to vote." NR §8-1804(e)(4)(ii).3

This latter provision merely codifies the common law rule. Gemeny v. Prince George's County, 264 Md. 85, 88, 285 A.2d 602 (1972). A majority of the members present can act for the body if a quorum is present, unless the organic law which created the body provides otherwise. Zeiler v. Central Railway Co., 84 Md. 304, 322-323 (1896). This rule applies to administrative bodies. FTC v. Flotill Products, Inc., 389 U.S. 179, 184-85 (1967).

The legislative history of Chapter 601 reveals that it was enacted in response to complaints from those who, believing that attendance by Commission members at public hearings was inadequate, argued that if more members attended, they might have a better understanding of local concerns.4 Thus, the primary concern of the General Assembly was to assure that citizens affected by the decisions of the Commission be afforded more fully attended hearings at which to express their concerns.5 The bill's title recites that its purpose was, in part, to "prevent[] the Commission or a panel of the Commission from holding a public hearing unless a quorum is present." The bill was opposed by the Commission, which argued that the requirement of a quorum at every hearing was too "cumbersome." In addition, the Commission contended that the bill's requirement for majority decisionmaking was "simply ... not needed," given the voting requirement in the Commission's bylaws discussed in Part II below.6

II

The Commission's Bylaw

The Commission adopted its bylaws shortly after its creation in 1984. Article V of the bylaws provides:

A quorum shall be a majority of all the voting members. On all issues, other than amendment of the by-laws, a simple majority of the voting members shall decide the question.

This voting requirement is stricter than that in NR §8-1804(e)(4)(ii). Under the bylaw, at least 14 votes, a majority of the 26 members entitled to vote, are necessary to approve an action. Under the statute, as few as 8 votes, a majority of the minimum possible quorum, would suffice. In forming its bylaws, the Commission obviously believed that the potential for action by so few members might frustrate the statute's objective of broad participation in the Commission's decisionmaking.7

During the 1986 Session, the Commission asked for advice concerning the effect of House Bill 1345 on its voting requirement bylaw. The Commission's counsel concluded that the purpose of the legislation was to assure that minimum due process procedures were established and to give the Commission guidance concerning its public hearing hearing and decisionmaking procedures. In the view of its counsel, the Commission's stricter voting requirement was in harmony with the overall intent of the bill, to strengthen the Commission's procedural safeguards. Thus, counsel advised that the stricter voting requirement could remain in effect if the bill passed. Upon further analysis, we conclude that the bylaw may not be given effect.

III

Analysis

The Court of Appeals has held that the legislative bodies of municipalities lack power to adopt quorum or voting requirements stricter than the common law. For example, in Heiskel v. City of Baltimore, 65 Md. 125 (1886), the Court held that City Council could not set its quorum at two-thirds, rather than a simple majority:

The City Council is the creature of the Legislature, and if it can exercise no powers not expressly granted to it, neither can it deprive itself by its own action of the powers that are granted to it. We have shown before that a majority of the Council constituted the legal body, and competent to do every act that the Council could do. It would be an anomaly indeed if the Council itself could deprive itself of the right that it admittedly had.

65 Md. at 151-52 (emphasis in original).8

Similarly, in Murdoch v. Strange, 99 Md. 89 (1904), the Court held that the City Council of Annapolis could not adopt a rule treating a blank ballot as a vote in dissent when, under the common law, a blank ballot was treated as a nullity and those who cast such a ballot are considered to have acquiesced in the action of the majority. 99 Md. at 110. The Court specifically held that: "[N]o rule can be established by custom or otherwise, that will substantially affect the determination of the majority, otherwise than according to the principles of the common law." 99 Md. at 107.

This reasoning has been extended to a situation quite similar to that at hand. In Barnett v. City of Paterson, 6 A. 15 (N.J. 1886), the New Jersey Supreme Court held that a city council could not, by rule, require a two-thirds majority for passage of items involving money, where, under the common law, a simple majority was all that was required.9

These cases stand for the proposition that common law quorum or voting requirements, and, it must follow, statutory requirements that codify or change the common law, establish not only minimum standards, but also maximum ones. The standard establishes the power of the municipal body to act or decide once that standard is met; the body may not, by rule, divest itself of that power.

This background underscores the General Assembly's decision in 1986 to insert in the Commission's governing statute the common law decisional principle that a simple majority of the quorum controls. Administrative agencies, like municipal corporations, derive their power from the Legislature and may not act in excess of a statutory grant. Annapolis v. Annapolis Waterfront Co., 284 Md. 383, 394, 396 A.2d 1080 (1979). While the Commission has the power to adopt rules of procedure governing its conduct [NR §8-1806], it may not contravene the statute, in this instance, by adopting a more rigorous majority requirement.

We believe that the Commission's bylaw was a good-faith effort to fashion a consensus-building tool in harmony with the intent of the original statute. The Commission retained the bylaw in the belief that the General Assembly's 1986 enactment merely provided a statutory minimum. For the reasons stated above, however, the Commission's bylaw may no longer be applied.10

IV

Conclusion

In summary, it is our opinion that the Chesapeake Bay Critical Area Commission may not apply a bylaw that varies from the voting requirement in NR §8-1804(e)(4)(ii).

J. Joseph Curran, Jr., Attorney General
Kathryn M. Rowe, Assistant Attorney General

Jack Schwartz
Chief Counsel
Opinions & Advice

1 Originally, the Commission consisted of 25 voting members. The Commission gained a new member when the former Department of Economic and Community Development was bifurcated. Chapter 306, Laws of Maryland 1987. See NR §8-1804(a)(4).

2 Under the common law, a quorum consists of a simple majority of the membership. Heiskel v. City of Baltimore, 65 Md. 125, 149 (1886). See text accompanying note 8 below.

3 NR §8-1804(e)(3) also provides that neither the Commission nor a panel of members may hold a public hearing "unless a quorum is present."

4 See Testimony of the Maryland Association of Counties, Inc. and the State of Maryland Institute of Home Builders, Inc. on Senate Bill 528 (1986 Session).

5 See Testimony of the Honorable Richard Colburn before the Environmental Matters Committee, and the Committee Report for House Bill 1345 (1986 Session).

6 See Testimony of Solomon Liss and Sarah J. Taylor on House Bill 1345 and Senate Bill 528. The bill was also opposed by the Chesapeake Bay Commission, a tri-state legislative advisory group, which testified that the proposal would impose an undue burden on the membership of the Commission and would delay implementation of the critical areas programs. See Testimony of Chesapeake Bay Commission, February 19, 1986.

7 At the time that the bylaw was adopted, the Commission consisted of 25 members, so that application of the common law principle would have allowed a mere 7 members, a bare majority of the minimum possible quorum of 13, to act for the Commission.

8 See also Borough of Florham Park v. Dept. of Health, 146 A. 354 (N.J. 1929); Traino v. McCoy, 455 A.2d 602, 607 (N.J. Super. 1982); 4 McQuillan, Municipal Corporations §13.27, at 698 (3rd ed. 1985).

9 But see 62 C.J.S. Municipal Corporations §404a, at 764 (1949), which indicates that a municipal body may determine for itself the number of votes required to elect an officer or pass a particular measure. The cases cited, however, involve election of officers and procedural rule changes and not the passage of ordinances or other measures affecting the public.

10 We are advised by Commission Chairman Liss that the Commission has operated with a remarkable degree of consensus, dissenting votes being non-existent or few in number. Indeed, we understand that in dozens of Commission meetings since the bylaw was adopted, no vote of the Commission has succeeded or failed by a margin that called the bylaw into question, save for one vote on a matter that became moot soon after the vote was taken.