Was a Maryland county legally required to fund its local election board at the staffing level the board said it needed to run elections?

Plain-English summary

During the 1991 recession, county governments across Maryland looked for ways to cut spending, and some ordered local boards of supervisors of elections to reduce their budgets by a fixed percentage or dollar amount. Local election boards tried in good faith to comply while preserving basic services, but in a few cases counties pushed for cuts so deep that boards would have had to reduce operating hours or cut staff below levels the boards and the State Administrative Board of Election Laws (SABEL) considered necessary to run fair and efficient elections. The State Administrator of Election Laws asked the Attorney General whether a county governing body could override a local election board's own determination, made with SABEL's agreement, of what staffing and service level was essential.

The opinion concluded that a county governing body was legally required to provide sufficient funds to let a local board sustain the level of service that the board, with SABEL's approval, determined was essential. It reasoned that the conduct of elections was exclusively a State function under both the State and federal constitutions, with SABEL supervising elections statewide and local boards charged with running elections and voter registration locally, while counties bore the statutory duty to fund "all ... necessary and reasonable expenses" of their local boards. Drawing on earlier opinions addressing analogous funding disputes between counties and sheriffs' offices, the opinion described a two-way obligation: the county had an implied duty to provide the board, within reasonable limits, the funds needed to meet its constitutional and statutory obligations, while the board had a reciprocal duty to request only the funding it genuinely needed. If a county and its local board could not agree, the opinion directed that the impasse be resolved by SABEL, the state agency charged with supervising elections, and that once SABEL agreed a given staffing level was "absolutely necessary" for the board to perform its functions, the county was legally required to fund it. A later editor's note recorded that a Talbot County circuit court affirmed this conclusion the following year.

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. Maryland's election statutes have since been substantially recodified from Article 33 of the Maryland Code into the modern Election Law Article; verify the current statutory citations and any newer case law on county funding of local election administration before relying on any specific rule described here.

Common questions

Could a Maryland county cut its local election board's budget below the level the board said it needed?
According to this 1991 opinion, no. The Attorney General concluded a county governing body was legally required to fund the level of service that the local board, with SABEL's approval, determined was essential, even during a county-wide budget crunch.

Who decided what level of election-office staffing was actually necessary?
Under this opinion, that determination belonged first to the local board itself, with the State Administrative Board of Election Laws (SABEL) as the ultimate authority if the board and county could not agree. The opinion described a two-way duty of good faith: the board was expected to request only the funding it genuinely needed, while SABEL's agreement that a staffing level was "absolutely necessary" made county funding of it legally mandatory.

Why couldn't a county treat its election board like any other county department during a budget crunch?
Because, per the opinion, election administration was not treated as an ordinary county function. The opinion characterized the conduct of elections as an exclusively State function under the Maryland and federal constitutions, so a county's general budget and fiscal authority over the local board did not extend to overriding the board's and SABEL's own determination of essential service levels.

Background and statutory framework

The recession's impact on tax revenues forced counties, like the State, to search for ways to cut expenditures, and some county governing bodies required local election boards to reduce their budgets by a fixed percentage or dollar amount. Local boards made good-faith efforts to comply while preserving basic services, but in a few cases counties pushed for cuts deep enough to require reducing operating hours or cutting full-time staff, which the boards and SABEL viewed as jeopardizing the fair and efficient conduct of registration and elections mandated by the Election Code.

The opinion began from the premise that the conduct of elections is a State function, "regulated uniformly by the general laws of the State" and "an important exercise of the State's sovereign powers," 58 Opinions of the Attorney General 285, 290 (1973), reinforced by the Court of Appeals' description of "pervasive State administrative control of the election process, on both the statewide and local levels," as showing the General Assembly did not intend local governments to enact election laws, County Council v. Montgomery Ass'n, 274 Md. 52, 62, 333 A.2d 596 (1975). State law gave SABEL supervisory power over the conduct of elections statewide, Article 33, §1A-1(e)(1), while charging local boards with running "all elections" in their jurisdictions, Article 33, §2-9(a), including setting registration days and hours subject to statutory minimums, §3-2(a). Local boards also had authority to appoint and remove employees under Article 33, §2-6, though most local-board employees were in the State's classified service under Article 64A, §9G(a) (with Allegany, Calvert, Montgomery, and Prince George's Counties' employees instead covered by their own county merit systems under the local-option provision, Article 64A, §9G(f)), leaving counties with no significant control over those employees.

Counties, in turn, were required to fund "all ... necessary and reasonable expenses" of their local boards, Article 33, §2-4(b), even though each board was also "subject to the budget and fiscal policies ... of the county in which it is located," Article 24, §8-101(1); see also Article 64A, §9G(b). The opinion traced this tension through earlier opinions, including a 1972 opinion concluding Baltimore City could not use its own budget procedures to deprive election employees of salaries the State merit system entitled them to, 57 Opinions of the Attorney General 225, 230 (1972), citing Kenneweg v. Allegany County, 102 Md. 119, 129, 62 A. 249 (1905) (county required to levy taxes for a State-mandated primary election). It found the fullest exploration of this kind of funding obligation in opinions addressing sheriffs' offices, whose salaries and expenses counties have paid since 1945 even though sheriffs are State officers governed by State law, see generally Rucker v. Harford County, 316 Md. 275, 558 A.2d 399 (1989), and CJ §2-309(a-1) requiring each county government to "pay the necessary expenses" of the sheriff's office. Those earlier sheriff-funding opinions, including a 1972 opinion requiring Baltimore City to fund a State-mandated salary increase under then-Article 87, §37, and a later opinion describing a "good faith working relationship" duty under CJ Section 2-309(w) in which the county has an implied obligation to fund reasonable sheriff's-office needs while the sheriff has a duty to request only what is genuinely necessary, supplied the template the opinion applied to election boards. The opinion also noted that requiring counties to fund State offices raises no constitutional issue, since counties are "mere instruments of government ... subject to the control of the Legislature," Howard County v. Matthews, 146 Md. 553, 561, 127 A. 118 (1924).

Citations and references

Statutes:

• Article 33, §1A-1(e)(1), SABEL's supervisory power over the conduct of elections
• Article 33, §2-9(a), local boards' charge over elections in their jurisdiction
• §3-2(a), minimum voter-registration hours local boards must maintain
• Article 33, §2-6, local board authority to appoint and remove employees
• Article 64A, §9G(a), local-board employees in the State's classified service
• Article 64A, §9G(f), local option for counties to cover local-board employees under a county merit system
• Article 33, §2-4(b), county obligation to fund "necessary and reasonable expenses" of local election boards
• Article 24, §8-101(1), local board subject to county budget and fiscal policies
• Article 64A, §9G(b), related county budget and fiscal authority over local boards
• Former Article 87, §37, prior statute mandating sheriff's-office salary levels
• CJ §2-309(a-1), county obligation to pay necessary expenses of the sheriff's office
• CJ Section 2-309(w), duty of good-faith negotiation between sheriff and county commissioners

Cases:

• County Council v. Montgomery Ass'n, 274 Md. 52, 62, 333 A.2d 596 (1975), on exclusive State control of elections
• Kenneweg v. Allegany County, 102 Md. 119, 129, 62 A. 249 (1905), on county obligation to fund a State-mandated primary election
• Rucker v. Harford County, 316 Md. 275, 558 A.2d 399 (1989), on the history of county funding of sheriffs' offices
• Howard County v. Matthews, 146 Md. 553, 561, 127 A. 118 (1924), on counties as instruments of the State subject to legislative control
• SABEL and Board of Supervisors of Elections of Talbot County v. Talbot County, Maryland, Case No. CG1622 (May 27, 1992), Circuit Court for Talbot County decision affirming this opinion's conclusion (per the opinion's editor's note)

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 194-199 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.

ELECTIONS

Election Boards and Judges - Counties - Obligation To Fund
Essential Election Board Functions

                           June 12, 1991

Mr. Gene M. Raynor
State Administrator of Election Laws

You have requested our opinion concerning the authority of county

governing bodies to exercise their budgetary powers in such a way as to
override decisions about levels of staffing and operational requirements
made by local boards of supervisors of elections ("local boards") in
conjunction with the State Administrative Board of Election Laws
("SABEL").

 For the reasons stated below, we conclude as follows: A county

governing body is legally required to provide sufficient funds to enable
a local board to sustain the level of service that the local board, with the
approval of SABEL, determines to be essential.1

                                   I

                            Background

 The recession's impact on tax revenues has forced the counties, like

the State, to search for all possible ways to cut expenditures. Some
county governing bodies have required local boards to reduce their
budgets by a fixed percentage or a fixed dollar amount. The local
boards have made a good faith effort to comply while preserving basic
election board services.

    1
      Thus, this opinion affirms the advice of counsel previously provided to

you on this issue. Letter of advice dated May 30, 1991. That letter also
addressed certain other issues regarding the employees of local boards. Should
you desire that these other questions also be treated in an Attorney General's
opinion, please let us know.

 However, in a few cases counties have attempted to achieve further

savings by in effect ordering local boards to reduce their hours of
operation or to cut substantially the hours worked by full-time
employees. The more extreme budget reduction attempts are not
acceptable to the local boards and SABEL, because in their view the
resulting loss of services to voters poses a risk to the fair and efficient
conduct of registration and elections mandated in the Election Code.

                                 II

                   State Control of Elections

We begin with the fact that the State has exclusive control over the

conduct of elections:

          In our opinion, the conduct of elections is a State
     function, regulated uniformly by the general laws of
     the State. The regulation of elections is an important
     exercise of the State's sovereign powers recognized
     under both State and federal constitutions.

58 Opinions of the Attorney General 285, 290 (1973). A county may
not impose its own decisions about the conduct of elections or the
provision of related services to the electorate. As the Court of Appeals
has written, the "pervasive State administrative control of the election
process, on both the statewide and local levels, is a compelling
indication that the General Assembly did not intend that local
governments should enact election laws, but rather intended that the
conduct and regulation of elections be strictly a state function." County
Council v. Montgomery Ass'n, 274 Md. 52, 62, 333 A.2d 596 (1975).

 State law invests in SABEL the power to "exercis[e] supervision

over the conduct of elections in the State." Article 33, §1A-1(e)(1) of
the Maryland Code. Local boards are to "have charge of and make
provision of all elections" in their respective jurisdictions. Article 33,
§2-9(a). Further, each local board is to "open for [voter] registration on
such days and during such hours as each board may prescribe," subject
to the minimum number of open days specified in the statute. §3-2(a).

 In addition, a local board has the power to appoint and remove

employees, subject to applicable merit system provisions. Article 33,
§2-6. Under Article 64A, §9G(a), employees of most local boards are
in the classified service of the State and are subject to the jurisdiction of
the Secretary of Personnel.2 The county has no significant control over
these employees. 58 Opinions of the Attorney General at 294.

 For example, in 56 Opinions of the Attorney General 203 (1971),

this office concluded that the County Commissioners of St. Mary's
County could not take the head clerk of the local board away from her
duties as head clerk to perform county duties inconsistent with her
election duties: "If the county commissioners, by assigning the head
clerk to other duties, force her to be absent from the Election Office
thereby leaving it unattended at times when the board has designated that
it be open, such action is unauthorized and improper." Id.

                                III

               County Budgetary Responsibility

 Counties are legally required to fund "all ... necessary and

reasonable expenses" of the local boards. Article 33, §2-4(b) provides
in full as follows:

          The expenses incurred by each board in furnishing
     supplies and equipment as provided in subsection (a)
     and all other necessary and reasonable expenses of
     each board shall be an expenditure of the county or
     Baltimore City in which the board is located, and shall
     be payable as other expenses are payable by the county
     commissioners, county councils, or the Mayor and
     City Council of Baltimore, as the case may be.

(Emphasis added.) At the same time, each local board "is subject to the
budget and fiscal policies ... of the county in which it is located."
Article 24, §8-101(1). See also Article 64A, §9G(b).

    2
      Article 64A, §9G(f) gave local boards the option of including their

employees in a local merit system. The employees of the local boards in
Allegany, Calvert, Montgomery, and Prince George's Counties are covered by
the merit system of their respective counties.

The fiscal relationship between a county and its local board of

elections was explored by our office in 1972, shortly after the statute
was passed placing all continuously employed permanent employees of
election boards in the State's classified service (unless a local board
opted to join the county merit system). Attorney General Burch was
asked whether the Board of Supervisors of Elections of Baltimore City
(the "Baltimore City Board") could refuse to pay employees who passed
the State qualifying examination at the level called for by the State merit
system salary scale. Baltimore City initially refused to fund the
Baltimore City Board employees at the higher level set by the State
because the City had not provided for the increased level of funding in
its budget.

 While recognizing that the predecessor of Article 24, §8-101 made

the Baltimore City Board "subject to the budget and fiscal procedures of
Baltimore City," Attorney General Burch nonetheless advised "that
Baltimore City cannot, in good faith, avail itself of those procedures to
deprive election employees of the salaries to which they are entitled
under State law." 57 Opinions of the Attorney General 225, 230 (1972).
Citing Article 33, §2-4(b), the Attorney General wrote that the City was
obligated to pay those salaries, although they were higher than those of
comparable City employees. 57 Opinion of the Attorney General at 227.
Cf. Kenneweg v. Allegany County, 102 Md. 119, 129, 62 A. 249 (1905)
(county required to levy taxes to pay cost of primary election mandated
by State law).

 The fullest exploration of a county's funding obligations under a

statute comparable to Article 33, §2-4(b) has been undertaken in
opinions involving the funding of sheriff's offices. The sheriff and
deputy sheriffs are State officers or employees, and the sheriff's duties
are determined by State law. Nevertheless, since 1945, the salaries and
many of the expenses of sheriffs' offices have been paid directly by the
counties. See generally Rucker v. Harford County, 316 Md. 275, 558
A.2d 399 (1989). Under §2-309(a-1) of the Courts Article ("CJ"
Article), "[t]he government of each county shall ... pay the necessary
expenses ..." of the sheriff's office.

 In 57 Opinions of the Attorney General 626 (1972), Attorney

General Burch addressed two questions posed by the Sheriff of
Baltimore City: whether Baltimore City could refuse to fund a State-
mandated salary increase, on the ground that it had instituted a city-wide
general freeze on employment positions and salaries; and whether the
City could flatly refuse to fund certain additional personnel that the
sheriff determined were necessary to handle the additional workload of
the office.

Attorney General Burch concluded that the language setting forth

the State salary level was mandatory, since it read in part that "the
appointees shall receive the salaries prescribed." Former Article 87,
§37. He also concluded that if the sheriff determined to fill an
authorized position because, in the sheriff's judgment, the position was
necessary to discharge the workload of the office, the City was required
to fund it. 57 Opinions of the Attorney General at 636 and 637.

 A few years later, Attorney General Burch revisited the problem of

a conflict between a sheriff's determination that certain positions were
necessary and the reluctance of a local government (in that instance
Washington County) to fund them. Asked to discuss how "[this]
stalemate [could] be resolved ...," the Attorney General wrote as
follows:

          We are aware that the duties of the sheriff's office
     are constitutionally set by the common law and by
     statute, but that the salaries of the sheriff's office are
     paid for locally by the county commissioners of
     Washington County. It seems to us that such a
     situation necessarily mandates a good faith working
     relationship between the two offices and that [CJ]
     Section 2-309(w) requires the sheriff and the county
     commissioners to make honest attempts to resolve
     their differences through negotiation and compromise.
     Since the duties of the sheriff clearly cannot be
     abridged by action of the county commissioners, we
     believe that the county has an implied obligation to
     provide the sheriff, within reasonable limits, with the
     necessary funds to adequately discharge his
     constitutional and statutory obligations. Conversely,
     we believe that the sheriff has an obligation to
     realistically assess the needs of his office and to
     request only such additional funding for personnel as
     he deems absolutely necessary for the adequate
     performance of his functions.

60 Opinions of the Attorney General 647, 657 (1975).

 This approach should be adopted by local boards and their county

governing bodies as well: Good faith is needed on both sides in assessing
the genuine needs of the election office, given both a budget crisis from
which no part of government can be immune and the utterly essential
character of election-related work.

 If discussions between the local board and the county do not result

in an agreement, the impasse should be resolved by SABEL, the agency
set up by the General Assembly to supervise elections in this State. In
the end, if SABEL agrees with a local board that certain levels of
staffing are "absolutely necessary for the adequate performance of [the
local board's] functions," the county is legally required to provide the
funds to pay for that level of staffing. See Opinion No. 89-009 (March
9, 1989) (unpublished) (county must defer to State's Attorney's
determination about the necessity of certain training); 73 Opinions of the
Attorney General 92 (1988) (county may not apply purchasing
regulations to circuit court in a way that would deprive the court of
necessary items).3

                                     IV

                               Conclusion

In summary, it is our opinion that a county governing body is

legally required to provide sufficient funds to enable a local board to
sustain the level of service that the local board, with the approval of
SABEL, determines to be essential.

                                                  J. Joseph Curran, Jr.
                                                  Attorney General

                                                  Jack Schwartz
                                                  Chief Counsel
                                                    Opinions & Advice

                                                   Elizabeth L. Nilson
                                                   Special Assistant to the
                                                    Attorney General

Editor's Note:

The conclusion in this opinion was affirmed by the Circuit Court for

Talbot County in SABEL and Board of Supervisors of Elections of
Talbot County v. Talbot County, Maryland, Case No. CG1622 (May 27,
1992).

    3
         Uniform legislation requiring counties to fund State offices poses no

constitutional issue. Counties are "mere instruments of government, appointed
to aid in the administration of public affairs, and are parts of the State .... [T]hey
are subject to the control of the Legislature." Howard County v. Matthews, 146
Md. 553, 561, 127 A. 118 (1924).