When a Maryland sheriff or State's Attorney joins the state pension system, does the state or the county pay the employer's share of the contribution?

Plain-English summary

Maryland's Secretary of Budget and Fiscal Planning and the chairman of the state pension board asked the Attorney General who had to pay the "employer's share" of pension contributions for elected or appointed officials, such as sheriffs, State's Attorneys, orphans' court judges, and liquor board commissioners, who chose to join the state's Employees' Retirement System or Pension System even though they were paid by their county, not by the State. Normally the State made this employer contribution automatically through its own payroll system, but that mechanism didn't work cleanly for officials the State didn't pay directly.

The Attorney General concluded the State had to bear the cost, not the counties and not the officials themselves. The pension statute said flatly that the State "shall pay" the employer's contribution on behalf of members of the system, and whenever the legislature had wanted to shift that obligation onto a different employer, such as the federal government for National Guard technicians or the counties for local elections board employees, it had said so explicitly in the statute. Since no such express shifting provision existed for sheriffs or State's Attorneys, and a Maryland high court case involving a sheriff's tort liability expenses had already held that county payment obligations for a sheriff's office are limited to the specific items a statute lists, not "necessary expenses" not on that list, the opinion concluded the State remained on the hook for these officials' pension contributions.

Currency note

This opinion was issued in 1992. 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. The opinion's own bound-volume Editor's Note already states that, following later amendment and recodification, the employer-contribution provision discussed here can be found in §21-304 of the State Personnel and Pensions Article rather than Article 73B.

Common questions

If a Maryland sheriff joined the state pension system, who paid the employer's share of the pension contribution: the state or the county?
The state, according to this opinion. The Attorney General concluded that Article 73B required the State to pay the employer's contribution "on behalf of the members of the several systems," and nothing in the law shifted that cost to the counties for sheriffs or State's Attorneys who elected to join.

Could the state instead bill the sheriff or State's Attorney personally for the employer's pension contribution?
No. The opinion concluded neither the counties nor the officials themselves could be assessed for this cost, because the statute placed the payment obligation squarely on the State.

Why didn't a sheriff's office statute listing specific county-paid expenses cover the pension contribution?
Because that statute, CJ §2-309, listed specific items (like telephone and stationery expenses) followed by general "and for other purposes" language, and the opinion applied the legal principle that general language following a specific list only covers similar items. Retirement costs weren't similar to office-supply expenses, so they fell outside what counties had to pay under that provision.

Did the legislature ever require counties to pay this kind of pension cost for other employees?
Yes, but only where it said so explicitly. The opinion pointed to statutes that expressly shifted the employer's pension contribution to a different payer, such as the federal government for National Guard technicians and counties for local boards of elections employees, showing the legislature knew how to shift this cost when it intended to.

Background and statutory framework

Membership in Maryland's state pension systems was generally limited to employees paid by state appropriation or state funds, but the pension article, Article 73B, let certain elected or appointed officials serving at the county level, including sheriffs, State's Attorneys, orphans' court judges, and liquor board commissioners, elect to join the Employees' Retirement System or Pension System even though the counties, not the State, paid their salaries. Ordinarily the State's employer contribution flowed automatically through Central Payroll each time payroll was run, a mechanism that worked cleanly only when the State itself paid the member; the opinion addressed what happened when the State did not.

Article 73B §162(1) stated that "the State shall pay" an amount covering the normal contribution and accrued liability contribution "on behalf of the members of the several systems," language the opinion read as unambiguous and unconditional. The opinion then surveyed the handful of instances where the General Assembly had, by explicit statutory language, shifted this employer-contribution obligation away from the State to a different payer: the United States for National Guard technicians, counties for employees of local boards of supervisors of elections, and Dorchester County for certain of its own employees. Because the legislature had shown it knew how to shift the obligation when it wanted to, and had not done so for sheriffs or State's Attorneys, the opinion applied the interpretive principle that expressly listing some exceptions implies the exclusion of others, reinforced by recent legislation on masters in chancery and juvenile causes (also county-paid officials) where the legislative history confirmed lawmakers understood the State, not the counties, would fund the employer's share for newly covered masters.

On the specific case of sheriffs, the opinion relied on Rucker v. Harford County, in which the Court of Appeals had held that a statute requiring counties to pay a sheriff's office's "necessary expenses for telephone, stationery and for other purposes" did not cover tort liability expenses, because under the principle of ejusdem generis the general "other purposes" language only reached expenses similar in kind to the specifically listed items. The opinion reasoned that retirement costs were no more similar to office-supply expenses than tort liability costs were, so this statute likewise did not shift pension costs to the counties. A parallel statute governing county payment of State's Attorneys' office expenses, Article 10, §40, similarly did not require county payment of the employer's pension share. With no statute shifting the obligation, the opinion concluded the State remained responsible.

Citations and references

Statutes:

• Article 73B, §1(3) and §111(4), defining general pension system membership eligibility
• Article 73B, §3(2)(a) and §113(a)(i), giving elected or appointed officials the option to join the pension systems
• Article 73B, §14(4)(b) and §122(4)(b), requiring the State to pay the employer's contribution as payrolls are paid
• Article 73B, §162(1), the core provision requiring the State to pay the normal and accrued liability contributions on behalf of members
• Article 73B, §3(6) and §113(7)(b), shifting the employer contribution to counties for local boards of elections employees
• Article 73B, §3(7), requiring Dorchester County to pay the contribution for certain of its employees
• Article 73B, §57(4), allocating a portion of pension costs for judicial masters to the counties
• CJ §2-309 and §2-309(aa) (Courts and Judicial Proceedings Article), listing county-payable expenses for a sheriff's office
• Article 10, §40, listing county-payable expenses for a State's Attorney's office

Cases:

• Office and Prof. Employees Int'l v. MTA, 295 Md. 88, 453 A.2d 1191 (1982), cited for the principle that enumerating specific items implies exclusion of others
• Rucker v. Harford County, 316 Md. 275, 558 A.2d 399 (1989), cited for the holding that general "other purposes" expense language for a sheriff's office covers only expenses similar to those specifically listed, applying ejusdem generis
• Goldberg v. State, 315 Md. 653, 556 A.2d 257 (1989), cited for the same statutory-exclusion principle
• State v. Sinclair, 274 Md. 646, 337 A.2d 703 (1975), cited for the ejusdem generis principle of statutory construction

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/1992/Volume77_1992.pdf (this opinion appears at printed page 191 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.

RETIREMENT SYSTEMS

Counties - Sheriffs - State's Attorneys - State Must Pay
Employer's Share of Pension Contributions

                             January 15, 1992

The Honorable Charles L. Benton
Secretary of Budget and Fiscal Planning

The Honorable Louis L. Goldstein
Chairman, Board of Trustees of Maryland
State Retirement & Pension Systems

   You have requested our opinion whether the State may assess the

cost of certain retirement benefits for elected or appointed officials, such
as local sheriffs, to the counties in which the officials serve or,
alternatively, to the officials themselves. The officials in question are those
who exercise the option to participate in the State's Employees Retirement
System or the Pension System for Employees (the "Pension Systems").

  For the reasons given below, we conclude that under current law the

State may assess neither the counties nor the officials for the contributions,
because the State has a statutory duty to pay the contributions to the
Pension Systems.

                                      I

                               Background

   As a general rule, membership in the State's Pension Systems is

limited to those employees "for whom compensation is provided by State
appropriation, or whose compensation is paid by State funds ..." Article
73B, §§1(3) and 111(4) of the Maryland Code.1 The General Assembly
has enacted certain exceptions to this general rule, however.

   "Elected or appointed" officials of the State have the option to

participate in the Pension Systems. §§3(2)(a) and 113(a)(i).2 As a result,
certain elected or appointed officials of the State who serve at the county
level, such as sheriffs, State's Attorneys, orphans' court judges, and liquor
board commissioners, may choose to participate in the Pension Systems.3

  Article 73B provides for payment by the State of the employer's

contribution to the Pension Systems "[a]s payrolls are paid ...." §§14(4)(b)
and 122(4)(b). Thus, contributions by the State are made to the Pension
Systems, via Central Payroll, 26 times per year.4 When the State is the
paymaster - that is, when the member is paid by Central Payroll - this
funding mechanism assures that the State's obligation to make the
employer contribution is readily satisfied.

  The member-officials about whom you ask are paid by the counties

in which they serve, not by the State. Thus, your opinion request calls on
us to consider whether the State is obligated to make the employer's
contribution to the Pension System when the State does not compensate
the member official and therefore cannot readily satisfy its obligation to
make the contribution under the current statutory funding mechanism.

                                 II

                      State Payment Obligation

A. Statutory Text and Context

   Article 73B, §162(1) provides in pertinent part as follows:

           Each year, on behalf of the members of the several
       systems, the State shall pay an amount that is at least
       equal to a percentage of the aggregate annual earnable
       compensation of the members that is known as the
       "normal contribution" and an additional amount that is
       equal to a certain percentage of the aggregate annual
       earnable compensation of the members that is known
       as the "accrued liability contribution" ....

   This provision could not be clearer: By its terms, the State is

obligated to make the employer's contributions "on behalf of the members
of the several systems." For the reasons given in Part I above, the
officials in question are properly included in the membership of the Pension
Systems. Hence, §162(1) mandates that the State pay the employer's
contribution on behalf of the member-officials unless some other provision
of law shifts this obligation to the counties or to the officials themselves.

  Our conclusion in this regard is supported by evidence that when the

General Assembly decides to shift the burden of paying the employer's
share of pension costs away from the State, it does so expressly.

   The pension article extends membership in the Pension Systems to

other classes of employees who are not paid by the State, including
National Guard technicians employed by the State Military Department
(§1(3)); employees of the boards of supervisors of elections (§3(6)); and
certain Dorchester County employees (§3(7)).6 When these employees
were admitted to membership in the Pension Systems, the General
Assembly included a proviso shifting the State's obligation for payment of
the employer's share of the retirement cost from the State to the employer
that paid the compensation of the member. Thus, for example, when
National Guard technicians became members of the Pensions Systems,
§1(3) was amended to provide that the employer's contribution was the
responsibility of the United States rather than the State. Chapter 403 of
the Laws of Maryland 1961. When employees of the local boards of
supervisors of elections became members, the law explicitly shifted the
State's obligation for payment of the employer contribution to "[t]he
county or Baltimore City, where the member is employed ..." §§3(6) and
113(7)(b). Similarly, §3(7) expressly provides that Dorchester County
must pay the contribution for those of its employees who elect to
participate in the Pension Systems.

   By contrast, no provision in the pension article shifts to the counties

in which the member-officials serve the obligation of the State to make the
payment of the employer's contribution to the Pension Systems on behalf
of these members. Since the statute expressly sets forth those instances in
which the counties must pay the employer's contribution for certain
members, the General Assembly evidently intended that the State make the
payment of the employer's contribution in all other cases. "It is a settled
principle of statutory construction that the Legislature's enumeration of
one item, purpose, etc., ordinarily implies the exclusion of all others."
Office and Prof. Employees Int'l v. MTA, 295 Md. 88, 96, 453 A.2d 1191
(1982). See also Rucker v. Harford County, 316 Md. 275, 294, 558 A.2d
399 (1989); Goldberg v. State, 315 Md. 653, 662, 556 A.2d 257 (1989).

  We find additional support for our conclusion in recent legislation

dealing with pensions for masters in chancery and masters in juvenile
causes. Like the member-officials, the compensation of the masters is paid
by the county in which the masters serve. Prior to June 30, 1989, masters
were members of the Judicial Pension Plan.

   In Chapter 779 of the Laws of Maryland 1989, Article 73B was

amended to provide that masters appointed after June 30, 1989 to serve on
a full-time basis become members of the Pension Systems. See
§§111(4)(v) and 113(8). With respect to those masters who continue as
members of the Judicial Pension Plan, Chapter 779 amended §57(4) so as
to allocate the obligation for payment of a portion of the State's
contribution to the counties. Moreover, the General Assembly not only
provided for payment by the counties of a portion of the amount otherwise
payable by the State under §162(1) but also included a mechanism for
collection of the amount due from the counties. §57(4)(iv).

   With respect to those masters who become members of the Pension

Systems, the law does not specify whether the State or counties pay the
employer's share of the cost. Our review of the legislative history of
Chapter 779 indicates that the General Assembly understood that the State
was obligated to make the contribution for the masters under §162(1).
The Revised Fiscal Note explains that "[t]he State will pay for the new
masters hired after June 30, 1989." Since the member-officials, like the
masters, are compensated by the counties, the State is likewise obligated
to pay the employer's share of the retirement costs when no law provides
to the contrary.

B. Sheriffs and State's Attorneys

   The Court of Appeals' treatment of an analogous issue in Rucker v.

Harford County makes clear that seemingly broad language in the statutes
governing sheriffs and State's Attorneys does not afford a basis on which
the State may shift the cost of the employer's contribution to the counties.

    In Rucker, the Court considered whether Harford County or the

State was obligated to pay the expenses of tort liability claims associated
with the office of the Harford County Sheriff. Expenses for tort liability
claims are not among the expenses expressly enumerated in §2-309 of the
Courts and Judicial Proceedings Article ("CJ" Article), which is a list of
specific cost elements of a sheriff's office, all to be paid by the county.
Thus, the issue was whether the expenses associated with tort liability
claims were payable by Harford County under CJ §2-309(aa), which
requires the counties to pay "necessary expenses for telephone, stationery
and for other purposes ..." of the sheriff's office. Finding that the tort
liability expenses were payable by the State rather than Harford County,
the Court of Appeals reasoned as follows:

            In §2-309, the general words "and for other
       purposes" follow the specific language "furnish an
       office ... and pay the necessary expenses for
       telephones, stationery." Applying the principle of
       ejusdem generis, we conclude that the general
       language of §2-309 encompasses only expenses of a
       similar type, e.g., for space, supplies, equipment,
       utilities and similar services which are necessary for the
       operation of the sheriff's function .... [T]he language
       of §2-309 should not be read to include tort liability
       expenses, which are dissimilar and not necessary for
       the operation of the sheriff's function.

316 Md. at 295-96.7

   Like tort liability expenses, retirement costs are not among the

expenses expressly enumerated and therefore payable by the counties for
the sheriff and the sheriff's office under CJ §2-309. Nor is the employer's
share of the retirement costs for sheriffs similar to those necessary to
"furnish an office ... and pay the necessary expenses for telephones,
stationery," and the like. We conclude, therefore, that neither this nor any
other provision of Maryland law has shifted the obligation to make the
employer's payment away from the State to the counties (or to the sheriffs
themselves).

   Article 10, §40, like CJ §2-309, enumerates the expenses payable by

the local jurisdictions for the State's Attorney of each county and their
respective offices. The statute does not require county payment of the
employer's share of the retirement costs for a State's Attorney who elects
to join the State's Pensions Systems.

                              III

                          Conclusion


 In summary, it is our opinion that the State is required to pay the

employer's contribution on behalf of the officials in question.

                                       J. Joseph Curran, Jr.
                                       Attorney General

                                       Harriet B. Granet
                                       Assistant Attorney General

Jack Schwartz
Chief Counsel
Opinions and Advice

Editor's Note:

  Following amendment and recodification, the provision on employer

contributions by the State may be found in §21-304 of the State Personnel
and Pensions Article.

1
Unless otherwise indicated, all statutory references in this opinion are to
Article 73B of the Code.

2
See also §§1(3) and 111(4)(b)(1). Since membership in the Employees'
Retirement System was closed by Chapters 23 and 24 of the Laws of Maryland
1979, any official elected or appointed on or after January 1, 1980 may elect to join
the State's Pension System only.

3
For convenience's sake, the elected and appointed officials who have
opted to participate in the Pension Systems will be referred to in this opinion simply
as "the member-officials." For brevity, we also use the term "county" to include
Baltimore City. See Article 1, §14(a).

4
Prior to 1985, the State's payment to the Pension Systems of the
employer contribution was made in four quarterly installments. Chapter 747 of the
Laws of Maryland 1985 was enacted on the recommendation of the Joint
Committee of Pensions to revise the way the State budgets its pension contributions
and to change the dates on which the contributions were made. Joint Committee on
Pensions, 1984 Interim Report to the Maryland General Assembly 106-08.

5
Section 162 was added to the pension article in 1984 for the purpose,
according to the bill title, of "providing for the funding of the State pension and
retirement and pension systems by changing provisions for employer contributions
to the State systems ...." Chapter 290 of the Laws of Maryland 1984. The 1984
General Assembly intended to implement the recommendations of the Joint
Legislative and Executive Committee on Pensions. See Chapter 290 (preamble).
Section 162 codifies two of the recommendations of the Joint Committee.
Paragraphs (2) and (3) of §162 change the actuarial method from the "accrued
benefit cost" method to the "entry age normal" method. Paragraph (1), quoted in
the text, reflects an intention to unify the payroll base of the Employees Retirement
and Pension Systems and to make the contribution a function of payroll. The Joint
Committee was "hopeful" that the change in method "will stabilize the State's
annual contribution as a relatively constant percentage of payroll." Report of the
Joint Legislative and Executive Committee on Pensions, 17-19 (1984).

6
Masters in chancery and masters in juvenile causes who are appointed on
or after June 30, 1989 to serve on a full-time basis are required to join the Pension
Systems. §§111(4)(b)(v) and 113(8). The masters are not paid by the State;
however, for the reasons discussed below, the State rather than the local jurisdiction
is obligated to pay the employer's share of the retirement costs for the masters'
service.

7
Under the principle of ejusdem generis, "where 'the general words in a
statute, such as "other things of value"... follow the designation of particular things
or classes of subjects,... the general words in the statute will usually be construed
to include only those things of the same class or general nature of those specifically
antecedently mentioned.'" Rucker, 316 Md. at 295 (quoting State v. Sinclair, 274
Md. 646, 658, 337 A.2d 703 (1975)).