Could a Maryland county's Human Relations Department order an employer to reinstate a worker and pay back pay for discrimination without a specific state law allowing it?

Plain-English summary

Frederick County's own county attorney had already concluded that the Frederick County Commissioners lacked authority to let the county's Human Relations Commission or Human Relations Department order remedies like reinstatement and back pay against an employer found to have discriminated, and asked the Attorney General to weigh in. The Attorney General agreed. Frederick County is a "commissioner county" that has not adopted charter or code home rule, meaning it only has the powers the General Assembly has expressly given it (plus whatever is necessarily implied to carry out those express powers), and those grants of power are read narrowly rather than expansively.

The 1988 state law creating the Commission and Department, Chapter 224, let the County Commissioners set the two bodies' "functions and duties" by resolution, but the opinion read that as tied to the purposes the law itself defined: the Commission was to provide a forum for airing discrimination complaints, and the Department was to investigate complaints and make findings of discrimination or its absence. The statute said nothing about enforcing those findings. The opinion had already found, in an earlier unpublished opinion, that subpoena power was necessarily implied because the Department could not investigate without it, but concluded that imposing costly remedies on employers was a different, harder question: the General Assembly typically grants that kind of power explicitly when it means to, and nothing in this law's text or legislative history suggested it here.

The opinion reinforced its conclusion by comparing two other contexts. First, it noted that the state-level Maryland Human Relations Commission Act keeps its investigatory and enforcement provisions in separate sections, with enforcement reached only after conciliation fails, showing the General Assembly knows how to draft enforcement authority when it wants it. Second, it revisited a 1981 AG opinion on commissioner counties' power to enforce local ethics laws, which had found only limited implied enforcement authority (falling well short of fines or penalties) until the General Assembly stepped in a year later with an express grant, a sequence the opinion read as confirming that commissioner counties get enforcement powers of this kind only when the legislature spells them out. Because the Human Relations Department's power to impose remedies would similarly have to come from an express legislative grant, the opinion concluded Frederick County would need the General Assembly to act before its Human Relations Department or Commission could order reinstatement, back pay, or similar relief.

Currency note

This opinion was issued in 1991. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Frederick County's local human relations law and Maryland's Human Rights Act (the successor to Article 49B) have both been amended and recodified since this opinion issued; verify the current statutory text before relying on any specific rule described here.

Common questions

Could Frederick County's Human Relations Department in 1991 have ordered a company to rehire a fired worker and pay back wages for discrimination? No, according to the opinion. It concluded the 1988 state law creating the Department gave it power to investigate complaints and make findings of discrimination, but not to impose remedies like reinstatement or back pay, since the General Assembly had not expressly granted that enforcement power.

Why couldn't the county just decide on its own that its Human Relations Department needed remedial power to be effective? Because Frederick County is a commissioner county without home rule, the opinion explained, it only has the powers the General Assembly expressly gives it or that are necessarily implied to carry out an express power, and those grants are construed narrowly, so wanting a power to be effective is not the same as the legislature having granted it.

Had Maryland ever let a similar county body enforce its own rulings without a specific state law? The opinion pointed to a 1981 AG opinion on commissioner counties enforcing local ethics laws, which found only limited implied authority to enforce ordinances, but concluded that harsher enforcement tools like fines or penalties required an express legislative grant, a gap the General Assembly filled the following year with specific ethics-enforcement legislation.

Background and statutory framework

Frederick County has not adopted charter or code home rule, so under Gaver v. Frederick County Comm'rs, Frederick County Comm'rs v. Page, Chaney v. Comm'rs of Anne Arundel County, and Prince George's County Commissioners v. Mitchell, the General Assembly may regulate the county in virtually any manner it sees fit, and the county commissioners have only the powers expressly granted to them plus powers necessarily implied to perform their express duties, construed strictly under Walker v. Board of County Comm'rs of Talbot County. Chapter 224 (House Bill 932) of the Laws of Maryland 1988, codified as Article 11, §2-2-68 of the Public Local Laws of Frederick County, authorized the County Commissioners to establish the Human Relations Commission and Human Relations Department and to set their "functions and duties" by resolution under §2-2-68(a)(2), but the opinion read that authority as bounded by the purposes the statute itself defined: the Commission as a forum for discrimination complaints under §2-2-68(b), and the Department's role to investigate housing, public accommodations, and employment discrimination complaints and make findings under §2-2-68(c)(1) and (2).

The opinion built on its own earlier unpublished Opinion No. 89-029, which had found subpoena power necessarily implied from the Department's investigatory role, but distinguished that from the harder question of remedial power that imposes direct costs on employers, noting the General Assembly typically grants such remedies explicitly and had not done so here, nor did the legislative history (testimony before the Constitutional and Administrative Law Committee) discuss enforcement measures. It drew a structural comparison to the state Human Relations Commission Act, where Article 49B, §10 covers investigation and conciliation while a separate section, Article 49B, §11, provides enforcement only after conciliation fails (citing Banach v. State Comm'n on Human Relations), showing the General Assembly knows how to separate and expressly grant enforcement power when intended. It also revisited its own 1981 opinion on commissioner counties enforcing local public ethics laws under Article 40A, Title 6, which found some enforcement authority necessarily implied but concluded that fines, penalties, or forfeitures required express statutory authority, a gap the General Assembly filled the next year with Chapter 903 of the Laws of Maryland 1982 (codified at Article 25, §3(mm)). The opinion noted other examples of the General Assembly granting commissioner counties express penalty power, such as Frederick County's own unsafe-buildings penalty authority under Chapter 78, Laws of Maryland 1978, and similar provisions for Cecil and St. Mary's counties under Article 25, §§10(a) and 10D, and cited Gutwein v. Easton Publishing Co. for the parallel proposition that the state Human Relations Commission itself needed an express legislative grant, Chapter 937 of the Laws of Maryland 1977, before it could award compensatory damages for discrimination.

Citations and references

Statutes:

• Chapter 224 (House Bill 932) of the Laws of Maryland 1988, creating Frederick County's Human Relations Commission and Department
• Article 11, §2-2-68(a)(1) of Public Local Laws of Frederick County, establishing the Commission and Department
• §2-2-68(a)(2), letting the County Commissioners set the two bodies' functions and duties by resolution
• §2-2-68(b), defining the Commission's forum-for-complaints purpose
• §2-2-68(c)(1), the Department's investigatory role
• §2-2-68(c)(2), the Department's power to make findings of discrimination or lack of discrimination
• Article 49B, §10, the state Human Relations Commission's investigatory and conciliation function
• Article 49B, §11, the state Commission's separate enforcement provision
• Article 40A, Title 6, requiring commissioner counties to enact local public ethics provisions
• Chapter 903 of the Laws of Maryland 1982, expressly granting commissioner counties ethics-enforcement penalty power
• Article 25, §3(mm), codifying that express ethics-enforcement grant
• Chapter 78, Laws of Maryland 1978, Frederick County's express unsafe-buildings penalty authority
• Article 25, §10(a) and §10D, similar express building-code penalty authority for Cecil and St. Mary's counties
• Chapter 937 of the Laws of Maryland 1977, granting the state Human Relations Commission power to award compensatory damages

Cases:

• Gaver v. Frederick County Comm'rs, 175 Md. 639, 3 A.2d 463 (1939), on commissioner counties having only expressly granted and necessarily implied powers
• Frederick County Comm'rs v. Page, 163 Md. 619, 164 A. 182 (1933), same
• Chaney v. Comm'rs of Anne Arundel County, 119 Md. 385, 86 A. 1039 (1919), same
• Prince George's County Commissioners v. Mitchell, 55 Md. 330 (1903), same
• Walker v. Board of County Comm'rs of Talbot County, 208 Md. 72, 116 A.2d 393 (1955), on strictly construing powers granted to county commissioners
• Banach v. State Comm'n on Human Relations, 277 Md. 502, 356 A.2d 242 (1976), on the state Human Relations Commission's separate investigatory and enforcement sections
• Gutwein v. Easton Publishing Co., 272 Md. 563, 325 A.2d 740 (1974), holding the Commission's original cease-and-desist authority did not include compensatory damages absent an express grant

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/1991/Volume76_1991.pdf (this opinion appears at printed pages 137-141 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

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

COUNTIES

Commissioner Counties - Human Relations Commission - Clarifying Legislation Needed to Authorize Certain Remedial Powers

January 10, 1991

John S. Mathias, Esquire
County Attorney for Frederick County

You have requested our opinion concerning the authority of the Frederick County Commissioners to grant either the Frederick County Human Relations Commission or Human Relations Department the power to impose remedies like reinstatement and back pay against an employer found to have engaged in discrimination.

You have concluded that, under current law, the Frederick County Commissioners do not have this authority.1 Although the issue is a difficult one, we agree. We are unable to discern in the existing law a clear intention to authorize these remedies. Thus we urge enactment of clarifying legislation if the General Assembly intends that the county commissioners have that authority.

I

Discussion

Frederick County has not adopted either charter or code home rule.
"Consequently, ... the General Assembly may regulate [Frederick County] in virtually any manner it sees fit." 62 Opinions of the Attorney General 275, 279 (1977). Moreover, the county has only the powers expressly granted by the General Assembly, together with those implied powers necessary to enable the commissioners to perform the express duties imposed on them. See Gaver v. Frederick County Comm'rs, 175 Md. 639, 3 A.2d 463 (1939); Frederick County Comm'rs v. Page, 163 Md. 619, 164 A. 182 (1933); Chaney v. Comm'rs of Anne Arundel County, 119 Md. 385, 86 A. 1039 (1919); Prince George's County

1
You so advised the Director of the Human Relations Department in an opinion dated June 12, 1990.

Commissioners v. Mitchell, 55 Md. 330 (1903). And the powers expressly granted to the county commissioners are to be strictly construed. Walker v. Board of County Comm'rs of Talbot County, 208 Md. 72, 116 A.2d 393 (1955).

Chapter 224 (House Bill 932) of the Laws of Maryland 1988 authorizes the Frederick County Commissioners to establish both a Human Relations Commission (the "Commission") and a Human Relations Department (the "Department"). Article 11, §2-2-68(a)(1) of Public Local Laws of Frederick County.

The County Commissioners are empowered to set by resolution "[t]he functions and duties of the Commission and the Department." §2-2-68(a)(2) However, this provision is not a blank check, authorizing the County Commissioners to grant the two entities any conceivable power. Rather, the "functions and duties" of the Commission and the Department must be linked to their purposes, as identified in Chapter

224. See Opinion No. 89-029, at 3 (August 10, 1989) (unpublished).

     The purpose of the Commission is to "provide a forum for the
     presentation of problems concerning discrimination in the County." §2- 2-68(b). The Department's role is "to investigate complaints alleging discrimination as to race, color, religion ... in housing, public accommodations, and employment." §2-2-68(c)(1). Following investigation, the Department is directed to "make determinations of discrimination or lack of discrimination." §2-2-68(c)(2). However, the statute does not give the Department express power to enforce a determination that discrimination has occurred.2

     Thus, the County Commissioners would be empowered to authorize
     the imposition of remedies only if the express power to "make determinations of discrimination" necessarily implied the power to enforce compliance. And, indeed, in our earlier opinion about Chapter 224, we advised that the Department's investigatory responsibility by necessary implication included subpoena power. We reasoned as follows: "It is difficult to see how the Human Relations Department would be able to carry out its investigatory and adjudicatory duties if it did not have such power." Opinion No. 89-029, at 3-4.

     2
        A comparison to the Maryland Human Relations Commission Act is
     

     instructive. Article 49B, §10 details the investigatory function of the Maryland Human Relations Commission. That section contains a directive for parties to attempt conciliation. Enforcement mechanisms, however, are provided in another section, §11. Section 11 is only invoked if the conciliatory process fails. Banach v. State Comm'n on Human Relations, 277 Md. 502, 356 A.2d 242 (1976).

     The imposition of specific remedies that would impose direct costs
     on employers poses a harder problem, in our view.3 The General Assembly ordinarily authorizes such remedies quite explicitly, and it has not done so here. Nor does the legislative history contain any discussion of enforcement measures.4

     Unquestionably remedial powers would make the Department more
     effective in combatting discrimination. But it cannot be said that the power to impose a remedy is essential for the Department to "make determinations of discrimination or lack of discrimination." Perhaps the General Assembly, taking account of the Department's prior activities, judged that the Department's determination would itself serve as a sufficient incentive to conciliation between the parties in most cases. Should conciliation prove unsuccessful, the complainant could under most circumstances then seek appropriate relief under other State or federal law.

     In 66 Opinions of the Attorney General 197 (1981), this office
     addressed an analogous issue, the power of commissioner counties to enforce local public ethics laws. Under Article 40A, Title 6, each county is required to enact provisions dealing with conflict of interest, financial disclosure, and lobbying. However, "Article 40A contains no express language authorizing enforcement or administration of local public ethics provisions." 66 Opinions of the Attorney General at 197.

     3
        We cautioned in our earlier opinion that "our conclusion goes no further
     

     than an interpretation of the County Commissioners' authority to grant subpoena power to the Human Relations Department,"
     4
     Apparently the main objective of Chapter 224 was to provide a legal
     basis for entities that had existed for some years. See Statement of William Pinckney, Chairperson of the Frederick County Human Relations Council before the Constitutional and Administrative Law Committee (March 1, 1988). Although testimony of one supporter of the legislation suggested that Chapter 224 would enable the Department to "resolve" complaints, the testimony does not allude to the means by which this would be accomplished and elsewhere speaks of conciliation. Statement of Theodore W. Stephens, Director of the Frederick County Human Relations Department before the Constitutional and Administrative Law Committee (March 1, 1988).

     Attorney General Sachs concluded that "some enforcement authority
     is necessarily implied from Title 6 .... Nevertheless, the power of a local jurisdiction to levy a fine, penalty, or forfeiture - either civil or criminal - ... cannot, in our opinion, be implied but, rather, depends on an express grant from the General Assembly." Id. (emphasis added).

     Having said that, the Attorney General then turned to an
     examination of the various forms of local government to determine whether express enforcement powers existed in provisions outside of Article 40A. Both charter and code home rule counties were determined to have some express authority to enforce local ordinances through distinct provisions in legislation defining their scope of powers. 66 Opinions of the Attorney General at 199-201. However, "[t]here [were] no similar public general law provisions for commissioner counties." 66 Opinions of the Attorney General at 201-02.5

     The opinion reasoned that even without express authority, these
     counties must have some implied authority to enforce their ordinances. Without this authority, the ordinances would be largely meaningless. That implied power, however, in "one enforcement area ... must be confined within the bounds of express authority. We do not believe that a local jurisdiction may define violations of public ethics provisions as crimes, or that it may impose fines, penalties, or forfeitures, without or in excess of express statutory authority ...." 66 Opinions of the Attorney General at 203.

     The next year, the General Assembly enacted Chapter 903 of the
     Laws of Maryland 1982, which expressly authorized county commissioners to "enact laws or regulations designed to prevent conflicts of interest ... and to provide for penalties, including fines, forfeitures,

     5
         The opinion suggested that an examination of public local laws might
     

     identify express grants of enforcement authority for certain commissioner counties but did not undertake that canvass.

imprisonment .... " Article 25, §3(mm). This sequence of events supports our conclusion that when the General Assembly intends commissioner counties to have enforcement powers of the kind in question here, it generally does so by express grant.6

Examples in other contexts likewise support our conclusion.
Frederick County, for instance, has been given express power to impose penalties on those who maintain unsafe buildings. See Chapter 78, Laws of Maryland 1978. Cf. Article 25, §§10(a) (authorizing Cecil County "to provide penalties for the violation of the building code") and 10D (same as to St. Mary's County).

II

Conclusion

In summary, it is our opinion that Chapter 224 of the Laws of Maryland 1988 does not authorize the Frederick County Commissioners to grant the Frederick County Human Relations Commission or Department the power to impose remedies like reinstatement and back pay. Further authorization by the General Assembly would be necessary for the exercise of such remedial power.

J. Joseph Curran, Jr.
Attorney General

Mary O. Lunden
Staff Attorney

Jack Schwartz
Chief Counsel
Opinions & Advice

6
This same proposition has been applied to a State administrative agency, the Maryland Human Relations Commission. In Gutwein v. Easton Publishing Co., 272 Md. 563, 325 A.2d 740 (1974), the Court of Appeals held that the predecessor to the current enforcement provision of the Human Relations Commission Act, which authorized the Commission to issue cease and desist orders and to take "such affirmative action as will effectuate the purposes" of the Act, did not permit imposition of compensatory damages for unlawful discrimination. The power to award such relief was subsequently granted to the Commission by Chapter 937 of the Laws of Maryland 1977.