Did Baltimore City liquor board members appointed while the Senate was in recess still need Senate confirmation?

Plain-English summary

A State senator asked whether the Governor's appointments to the Baltimore City liquor board during a legislative recess required later Senate confirmation. The AG said yes. The appointment statute let the Governor act alone while the Senate was out of session, but that did not eliminate the confirmation step when it reconvened.

The opinion relied on the Maryland Court of Appeals' construction of nearly identical predecessor language in Nesbitt v. Fallon and on an earlier Attorney General opinion about a liquor-board vacancy. A confirmed recess appointee served the appointed term; an appointee whom the Senate did not confirm ceased serving at the end of the session.

Currency note

This opinion was issued in 2003. 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.

Historical summary

Governor and Senate

The AG treated the Governor's power to fill a liquor-board position during recess as temporary pending Senate review. A recess appointment was not a way to bypass Senate confirmation.

Liquor board appointees

Under the opinion, an appointee who gained confirmation when the Senate met served the full term. Without confirmation, the appointee's service ended when that legislative session ended.

Common questions

Could the Governor appoint a liquor board member while the Senate was away?

Yes. The statute permitted the Governor to make a recess appointment, but the opinion said Senate confirmation was still required later.

What happened if the Senate did not confirm the appointee?

The AG said the appointee ceased serving at the end of the legislative session.

Did confirmation shorten the appointee's term?

No. The conclusion said a confirmed recess appointee served the full term to which the person had been appointed.

Background and statutory framework

Article 2B, §15-101(a)(1) described appointment with the Senate's advice and consent if in session and by the Governor alone if it was not. The AG read that language together with the constitutional recess-appointment power and the Court of Appeals' decision in Nesbitt v. Fallon.

Citations and references

• §15-101(a)(1): liquor-board appointment provision.
• Article II, §11: constitutional recess-appointment power.
• Nesbitt v. Fallon, 203 Md. 534, 102 A.2d 284 (1954): Court of Appeals decision interpreting predecessor liquor-board language.

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/search-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/2003/88oag136.pdf

Original opinion text

136
[88 Op. Att’y

GOVERNOR

A PPOINTMENTS – A LCOHOLIC B EVERAGES – L IQUOR B OARDS – R ECESS A PPOINTEES TO THE B ALTIMORE C ITY L IQUOR B OARD ARE S UBJECT TO S ENATE C ONFIRMATION

September 2, 2003

The Honorable George W. Della, Jr.
State Senator

You have asked for our opinion whether individuals appointed by the Governor to the Board of License Commissioners for Baltimore City while the General Assembly is not in session are subject to confirmation by the Senate.

In our opinion, Senate confirmation is required.

I

Alcoholic Beverages Law

The State Alcoholic Beverages Law, Annotated Code of Maryland, Article 2B, §1-101 et seq., provides for the appointment of boards of license commissioners (“liquor boards”) in Baltimore City and various counties. In relevant part, it states that “the Governor, biennially, by and with the advice and consent of the Senate, if in session, and if not in session, then the Governor alone, shall appoint three persons who shall constitute [the liquor board].” §15-101(a)(1).1

The Governor is to designate one of the appointees as the chairman of the board. §15-101(a)(2). Each appointee must be a resident and voter of the jurisdiction in which he or she serves. §15- 101(a)(3). The law further provides that “in the case of any vacancies ... which occur when the legislature is not in session, the Governor shall appoint some eligible person to fill the vacancy

1
All statutory citations in this opinion are to Article 2B of the Annotated Code of Maryland.

Gen. 136]
137

during the remainder of the term of the person originally appointed.”
§15-101(a)(4).

Except for minor changes in language and format, §15-101(a) is identical to a prior version of the statute codified at former Article 2B, §139 (1951).

II

Analysis

It is perhaps possible that the language of §15-101(a)(1) could be construed to require confirmation only if an appointment is made when the Senate is in session. However, the Court of Appeals and this Office have both construed the prior version of the statute and concluded that Senate confirmation is required if the Governor makes an appointment to a local liquor board when the General Assembly is not in session.

In Nesbitt v. Fallon, 203 Md. 534, 102 A.2d 284 (1954), the Court of Appeals construed §139, the predecessor of §15-101. In that case Nesbitt had been appointed to the Anne Arundel County liquor board in November 1952. The Governor submitted his name to the Senate when it convened the following January, along with those of the other two appointees. However, while the Senate confirmed the other two appointees, it rejected Nesbitt’s appointment. The Governor then nominated Fallon, whom the Senate confirmed. When Nesbitt refused to leave office, Fallon obtained a writ of mandamus from the circuit court to compel Nesbitt to vacate the office. On an appeal from that decision, Nesbitt argued, among other things, that Senate confirmation was not required for his appointment to the board. Noting that it had applied similar language in the State election law to require confirmation of appointees to the State election board, the Court concluded that §139 “clearly indicate[s] that confirmation by the Senate is necessary.” 203 Md. at 543.

Several years later Attorney General Sybert was asked whether a person who was appointed during a recess of the General Assembly to fill a vacancy on the St. Mary’s County liquor board could continue to hold office after the Senate failed to confirm his appointment. The Attorney General recounted the facts and holding in Nesbitt v. Fallon and concluded: “Since the Senate’s confirmation is necessary to the appointee continuing in office, and since he did not receive it, it is our opinion that his commission expired at the end

138
[88 Op. Att’y

of the session of the Legislature as provided by Article II, §11 of the Constitution ....” 42 Opinions of the Attorney General 86, 88 (1957).

As indicated above, the language of current §15-101(a) is identical to that construed by the Court of Appeals in Nesbitt v. Fallon and by Attorney General Sybert in the 1957 opinion. The Court of Appeals and the Attorney General construed that language to incorporate the Governor's power under Article II, §11 of the State Constitution to make a recess appointment and to acknowledge that Senate confirmation of the appointment cannot occur while the Senate is not in session. Even if the Court of Appeals decision did not otherwise control the answer to your question, the reasoning appears sound and we know of no reason why a different answer would now pertain.

III

Conclusion

For the reasons set forth above, it is our opinion that Senate confirmation is required for an appointment to the Baltimore City liquor board. Recess appointees who are later confirmed when the Senate convenes serve the full term to which they were appointed. Recess appointees who are not confirmed cease their service at the end of the legislative session.

J. Joseph Curran, Jr.
Attorney General

Robert N. McDonald
Chief Counsel
Opinions and Advice