Can one person serve as labor relations administrator for two different Maryland counties or agencies at the same time?

Plain-English summary

Montgomery County's Executive asked whether one person could hold, at the same time, three labor-relations posts: Labor Relations Administrator (LRA) for Montgomery County, LRA for the Washington Suburban Sanitary Commission (WSSC), and a seat on the "Impasse Panel" of the Prince George's County Public Employee Relations Board. Maryland's Article 35 of the Declaration of Rights bars one person from holding two "offices of profit" at once, so the question turned on which of these positions count as an office of profit.

The opinion worked through the two-part test the Court of Appeals uses: is the position one "of profit" (does it carry pay), and is it an "office" (created by law, continuing, and calling for the exercise of some part of the State's sovereign power). All three positions were paid and created by law. The deciding factor was sovereign power. Both LRAs can issue final, binding decisions in labor disputes, subject only to court review, so each LRA holds an office of profit. The Impasse Panel member, by contrast, generally issues only recommendations that the Prince George's County Council must approve, so that seat is not an office of profit.

The bottom line: because the two LRA jobs are each an office of profit, one person cannot hold both at once. But the Impasse Panel seat is not an office of profit, so a person could serve on the panel while also holding one of the LRA positions.

Currency note

This opinion was issued in 2014. 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

What is an "office of profit" under Maryland law?
The opinion described it as a position that both carries compensation ("of profit," meaning any fees, salary, or other pay is attached, even if the person does not actually collect it) and qualifies as an "office" (created by law, continuing rather than occasional, and calling for the exercise of some portion of the State's sovereign power). Article 35 of the Declaration of Rights bars one person from holding two such offices at the same time.

Why were the two Labor Relations Administrator jobs treated as offices of profit but not the Impasse Panel seat?
The dividing line the opinion drew was sovereign power. Each LRA can issue final and binding decisions in labor disputes, reviewable only by a court, which the opinion treated as exercising a part of the State's sovereignty in the officer's own right. An Impasse Panel member generally issues only recommendations that must go to the Prince George's County Council for approval, so the opinion concluded the panel seat did not carry that sovereign power.

Did it matter that the positions are part-time and only act when a dispute arises?
No. The opinion explained that the "continuing" requirement looks at the office itself, not how often the person actually works. Because each position runs for a set term and the holder is continuously available to act when disputes come up, the opinion found the duties continuing rather than occasional.

Does Article 35 reach positions created by county or local law, not just state statutes?
The opinion concluded that it does. Reviewing the history of the dual-office prohibitions, a 1995 legislative task force report, and the 1996 amendment exempting certain local public-safety positions, the opinion read the phrase "Laws of this State" to include offices created by county and municipal enactments.

Background and statutory framework

Article 35 of the Maryland Declaration of Rights provides that "no person shall hold, at the same time, more than one office of profit, created by the Constitution or Laws of this State." The opinion traced the purpose of that prohibition, quoting Board of Supervisors v. Attorney General, to protecting against "conflicts of interest, self aggrandizement, concentration of power," and the blurring of the separation of powers.

The Court of Appeals analyzes Article 35 through two questions drawn from Howard County Metropolitan Comm. v. Westphal: is the position "of profit," and is it an "office." A position is "of profit" if any compensation is attached, and the amount is immaterial (Moser v. Board of County Comm'rs). Whether a position is an "office" turns on four guidelines from Muthukumarana v. Montgomery County, with the Court treating the "ultimate test" (Hetrich v. County Comm'rs of Anne Arundel County) as whether the position was created by law, involves continuing duties, and calls for the exercise of "some portion of the sovereignty of the State." The "most important characteristic," per Buchholtz v. Hill, is that the holder is "entrusted with a part of the sovereign power."

Applying those guidelines, the opinion found all three positions paid, created by law, and continuing. It then separated the LRAs from the Impasse Panel member on the sovereign-power factor. The Montgomery County LRA administers the county's fire and rescue collective bargaining law (MCC §§ 33-147 to 33-154) and issues final decisions reviewable in the Circuit Court. The WSSC LRA administers collective bargaining under the Public Utilities Article (PU §§ 18-203 to 18-216) and likewise issues final decisions subject to judicial review. The Prince George's County Impasse Panel (PGCC § 13A-104) mostly mediates and recommends, with settlements generally requiring County Council approval (PGCC § 13A-111(a)(2)). Because the LRAs decide in their own right and the panel member does not, the opinion held the two LRA posts are offices of profit and the panel seat is not.

Citations and references

Statutes and constitutional provisions:
- Article 35 of the Maryland Declaration of Rights, prohibiting one person from holding two offices of profit created by the Constitution or Laws of this State
- Md. Const. Art. III, § 29, and Art. XI-A, referenced in construing the phrase "Laws of this State" and county home-rule powers
- MCC §§ 33-147, 33-149(a)(3), 33-149(c), 33-149(e), 33-154(e)-(g), the Montgomery County fire and rescue collective bargaining law and the LRA's authority
- PU §§ 18-203, 18-205, 18-206, 18-215, 18-216(d), 18-216(g), the Public Utilities Article provisions governing the WSSC LRA
- PGCC §§ 13A-104(a), 13A-104(b), 13A-104(e), 13A-101(a), 13A-102(g), 13A-111(a)(2), the Prince George's County collective bargaining law and Impasse Panel authority
- 1964 Md. Laws, ch. 129, and 1996 Md. Laws, ch. 80, amendments excluding certain positions from "office of profit" status

Cases (all Maryland appellate courts):
- Board of Supervisors v. Attorney General, 246 Md. 417, 428 (1967), stating the purposes of the dual-office prohibition and defining sovereign power
- Howard County Metropolitan Comm. v. Westphal, 232 Md. 334, 339 (1963), setting out the "of profit" and "office" inquiries
- Moser v. Board of County Comm'rs, 235 Md. 279, 283 (1964), holding that any attached compensation makes a position one "of profit"
- Hetrich v. County Comm'rs of Anne Arundel County, 222 Md. 304, 307 (1960), stating the "ultimate test" for a public office
- Muthukumarana v. Montgomery County, 370 Md. 447, 479 (2002), listing the four guidelines for identifying an office
- Buchholtz v. Hill, 178 Md. 280, 283 (1940), on sovereign power as the most important characteristic of a public office
- Gary v. Board of Trustees of Employees' Retirement System, 223 Md. 446, 452 (1960), finding no delegated sovereignty where an officer acts only under a superior's direction
- Lilly v. Jones, 158 Md. 260, 268-69 (1930), on focusing on what the office may do rather than what the incumbent actually does
- de la Puente v. County Comm'rs, 386 Md. 505, 512 (2005), treating positions created by a county code as "created by law"
- Biser v. Deibel, 128 Md. App. 670, 679 (1999), holding town-code positions "created by law"
- Nesbitt v. Fallon, 203 Md. 534, 544 (1954); Conaway v. State, 108 Md. App. 475, 494 (1996); James v. Prince George's County, 288 Md. 315, 324 (1980); D'Aoust v. Diamond, 424 Md. 549, 587-88 (2012); Jackson v. Cosby, 179 Md. 671, 675 (1941), applying the public-officer guidelines in related contexts

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/2014/99OAG133.pdf

Original opinion text

Gen. 133] 133

                  OFFICE OF PROFIT

LABOR LAW – STATUS OF LABOR RELATIONS
ADMINISTRATORS FOR PURPOSES OF PROHIBITION ON
DUAL OFFICE-HOLDING

                      August 25, 2014

The Honorable Isiah Leggett
County Executive

  You have requested our opinion on whether Maryland law

precludes a person from simultaneously serving as a Labor
Relations Administrator for Montgomery County, a member of
the “Impasse Panel” of the Prince George’s County Public
Employee Relations Board, and a Labor Relations Administrator
for the Washington Suburban Sanitary Commission. Specifically,
you ask whether two or more of these positions constitute an
“office of profit” within the meaning of Article 35 of the
Maryland Declaration of Rights such that a person could not serve
in more than one of these roles at the same time.
In our opinion, a member of the Impasse Panel of the Prince
George’s County Public Employee Relations Board does not hold
an office of profit. The Labor Relations Administrator for
Montgomery County, however, does hold an office of profit, as
does the Labor Relations Administrator for the Washington
Suburban Sanitary Commission. Accordingly, a person could
serve on the Impasse Panel and as a Labor Relations
Administrator, but could not concurrently serve as a Labor
Relations Administrator for both Montgomery County and the
Washington Suburban Sanitary Commission.
I
Background1
Article 35 of the Maryland Declaration of Rights provides,
in pertinent part, that “no person shall hold, at the same time,
1
In accordance with the rules governing the process of requesting
an opinion, you have provided us with the County Attorney’s
memorandum on the question posed here. The Montgomery County
Career Fire Fighters Association, by its counsel, has also submitted a
memorandum.

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134 [99 Op. Att’y

more than one office of profit, created by the Constitution or
Laws of this State.” Your question arises because a Labor
Relations Administrator (“LRA”) appointed to enforce and
administer Montgomery County’s Fire and Rescue collective
bargaining law has also been appointed to serve on the Impasse
Panel of the Prince George’s County Public Employee Relations
Board and is under consideration for appointment as an LRA for
the Washington Suburban Sanitary Commission.
A. Montgomery County’s LRA
Montgomery County’s LRA enforces and administers the
Fire and Rescue collective bargaining law under sections 33-147
through 33-157 of the Montgomery County Code (“MCC”). The
LRA has the authority to “hold hearings and make inquiries,
administer oaths and affirmations, examine witnesses and
documents, take testimony and receive evidence, and compel by
issuance of subpoenas the attendance of witnesses and the
production of relevant documents.” MCC § 33-149(a)(3). The
LRA has the authority to issue a final decision on any prohibited
practices specified in the County Code, which decision may be
appealed to the Circuit Court for Montgomery County. MCC
§ 33-154(e)-(g). The LRA serves for a five-year term. MCC
§ 33-149(c). An incumbent LRA is automatically reappointed for
another five-year term unless the certified union representative or
employer objects before the initial term expires. Id. The LRA is
paid a daily fee while handling collective bargaining matters and
is reimbursed for expenses. MCC § 33-149(e).
B. WSSC’s LRA
The LRA for the Washington Suburban Sanitary
Commission (“WSSC”) enforces and administers the collective
bargaining laws that apply to WSSC’s employees. The LRA has
authority over the process by which employees choose an
exclusive representative for collective bargaining purposes. Md.
Code Ann., Pub. Util. (“PU”) § 18-205 (2010, 2013 Supp.). The
LRA may also resolve disputes over the eligibility of employees
for inclusion in a bargaining unit and may hold evidentiary
hearings and issue final decisions in those matters. PU § 18-206.
The LRA determines the propriety of disciplinary action imposed
on employees who engage in a strike, work stoppage, or
slowdown and may conduct a hearing on whether to revoke the
certification of an employee organization found to have assisted
or authorized such actions. PU § 18-215. The LRA also has
authority to adjudicate unfair labor practice charges filed against
the Commission or an employee organization, including the

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Gen. 133] 135

ability to conduct hearings. In this capacity, the LRA may issue
findings of facts and conclusions of law, issue cease and desist
orders to parties found to have engaged in an unfair labor
practice, and order relief necessary to remedy any violations. PU
§ 18-216(d). Remedies could include reinstatement, restitution,
back pay, or any other remedy designed to restore the employee,
employee organization, or WSSC to the place it had been in
before the violation. Id. The LRA’s decision is final; an
aggrieved party’s only recourse is judicial review. PU § 18-
216(g).
The LRAs for WSSC serve for designated terms, generally
three years.2 PU § 18-203(a) and (b). The statute does not
expressly provide for the compensation of LRAs. Instead, it
states only that costs in certain matters are to be shared equally
between WSSC and the employee organization. See PU §§ 18-
205(g) (elections), 18-206(d) (eligibility hearings), 18-216(h)
(unfair labor practice proceedings). WSSC counsel has stated,
however, that LRAs are compensated for the work they do when
they preside over a hearing or otherwise exercise their authority.
See Memorandum of Montgomery County Attorney Marc P.
Hansen to Hon. Isiah Leggett, Montgomery County Executive, at
9 (Dec. 11, 2013).
C. Member of the Prince George’s County PERB Impasse
Panel
The Prince George’s County Public Employee Relations
Board (“PERB”) is composed of three separate panels with
responsibility over (a) representation matters; (b) unfair labor
practices and negotiability disputes; and (c) impasse disputes,
respectively. Prince George’s County Code (“PGCC”) § 13A-
104(a). The panels do not “act as single bodies except for the
purposes of electing their chairmen and to make, amend, and

 2
  The Revisor’s Note to PU § 18-203 states that the Washington

Suburban Sanitary Commission’s Law Review Committee has notified
the General Assembly of its view that the statutory language on the
length of an LRA’s initial term is “vague.” The WSSC committee
pointed out for the General Assembly’s consideration that it is
“unclear” whether all LRAs must have an initial one-year term before
being reappointed to a three-year term or whether the one-year term
provision applies only to the initial LRA. The ambiguity does not
affect our analysis here.

Page 4

136 [99 Op. Att’y

rescind such rules and regulations as may be necessary to carry
out” the collective bargaining law. Id. § 13A-104(b). “At all
other times each panel serves merely as the list of third parties
eligible to deal with the disputes.” Id.
Members of the Impasse Panel are called upon to mediate
disputes that occur when an employer and the representative of an
employee organization fail to reach a collective bargaining
agreement. Each panel member has the authority to hold hearings
and “make inquiries as he deems necessary to carry out properly
his functions and powers.” PGCC § 13A-104(e). This includes
the authority to “administer oaths and affirmation[s], examine
witnesses and documents, take testimony and receive evidence,
[and] compel attendance of witnesses and the production of
documents by the issuance of subpoenas.” Id. Panel members
lack the authority to “impose a final and binding settlement on the
parties” except in limited circumstances, and even then the
settlement must be submitted to the County Council for approval.
PGCC § 13A-111(a)(2). By contrast, the other two panels within
the PERB—those that handle representation matters and unfair
labor practices and negotiability disputes—render decisions that
are not referred to the County Council for final approval. See
PGCC §§ 13A-105 through 107; 13A-114(e).
Members of the Impasse Panel are appointed by the County
Executive and confirmed by the County Council. PGCC § 13A-
104(a). They serve a two-year term and may be reappointed for
additional terms. Id. Panel members are “compensated at a rate
to be determined by contract between the members and the
County.” Id.

                          II
                        Analysis
  Article 35 of the Declaration of Rights is one of several

Maryland constitutional provisions that limit dual office-holding.
See, e.g., Md. Decl. of Rights, Art. 33; Md. Const., Art. I, § 9,
Art. III, § 11; see also Report of the Task Force to Study Dual
Office Holding (“Task Force Report”), at 5-10 (1995) (listing and
discussing Maryland’s dual office prohibitions). The purpose of
these provisions is “to protect against conflicts of interest, self
aggrandizement, concentration of power, and the blurring or
obliteration of the doctrine of separation of powers in the
performance by the agents of the people of their delegated
authorities to exercise the executive, legislative and judicial
functions

Page 5

Gen. 133] 137

of the organized government.” Board of Supervisors v. Attorney
General, 246 Md. 417, 428 (1967).3
The Court of Appeals has approached Article 35 questions
by posing two separate inquiries: First, is the position one “of
profit?”; and, second, does the position constitute an “office?”
See, e.g., Howard County Metropolitan Comm. v. Westphal, 232
Md. 334, 339 (1963).
A. Position “of Profit”
The Court of Appeals has defined the term “of profit”
broadly to mean any office to which “fees, salary or other
compensation is attached.” Moser v. Board of County Comm’rs,
235 Md. 279, 283 (1964). It does not matter whether the person
actually receives compensation, only whether the position is one
that would normally convey payment. Westphal, 232 Md. at 340.
Any amount of compensation is sufficient to make the office one
of profit; “[t]he amount received is immaterial.” Moser, 235 Md.
at 283.
The Montgomery County LRA and a Prince George’s
County Impasse Panel member plainly hold positions “of profit.”
Both are entitled to compensation under their respective County
Codes, and both are paid from county funds. See MCC § 33-
149(e); PGCC § 13A-104(a); Letter from Molly A. Elkin,
Counsel to the Montgomery County Career Fire Fighters
Association to Attorney General Douglas F. Gansler at 3 (Dec.
11, 2013).
WSSC’s LRA also holds a position of profit. Although the
Public Utilities Article of the Maryland Code does not explicitly
state whether WSSC’s LRA is entitled to compensation, it does
require the parties to share the costs of certain matters. See PU §§
18-205(g) (elections), 18-206(d) (eligibility hearings), 18-216(h)
3
The common law incompatible position doctrine similarly
prohibits dual office-holding, but is not applicable here. The
incompatible position doctrine looks to “whether there is a present or
prospective conflict of interest, as where one office is subordinate to
the other or subject to supervision by the other, or where the incumbent
of one office has the power to appoint or remove or to set the salary of
the other.” Hetrich v. County Comm’rs of Anne Arundel County, 222
Md. 304, 308 (1960). There is no indication that any of these positions
would be subordinate to one another in any respect.

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138 [99 Op. Att’y

(unfair labor practice proceedings). According to WSSC’s
counsel, the LRA receives compensation for the times during
which he or she presides at a hearing. All three positions are thus
positions “of profit.”
B. Position that is an “Office”
The Court of Appeals has addressed the question of whether
a position constitutes an “office,” both for Article 35 and for other
purposes, through four “guidelines”: (1) whether the position
“was created by law and involves duties continuing and not
occasional”; (2) whether the incumbent “performs an important
public duty”; (3) whether the position “calls for the exercise of
some portion of the sovereign power of the State”; and (4)
whether the position has “a definite term, for which a commission
is issued and a bond and oath are required.” Muthukumarana v.
Montgomery County, 370 Md. 447, 479 (2002); see also Conaway
v. State, 108 Md. App. 475, 494 (1996) (noting that the Court has
used the guidelines for both sovereign immunity and Article 35
purposes). These guidelines are not “conclusive,” D’Aoust v.
Diamond, 424 Md. 549, 587-88 (2012); rather, the determination
of whether a position constitutes an “office” must be made in light
of “the facts and circumstances in each case and the nature and
effect of the particular provision of law by which the office was
created.” Moser, 235 Md. at 281; see also de la Puente v. County
Comm’rs, 386 Md. 505, 512 (2005) (for purposes of common-law
immunity, stating that “[t]hese four guidelines . . . are employed
using the specific facts and circumstances of each individual’s
position”).
Still, the Court has considered the “ultimate test” to be
whether the position “has been created by law and casts upon the
incumbent duties which are continuing in their nature and not
occasional and call for the exercise of some portion of the
sovereignty of the State.” Hetrich, 222 Md. at 307. We therefore
begin with these two guidelines, which we discuss in three parts:
whether the position was created by law; whether it involves
duties that are continuing; and whether it calls for the exercise of
sovereignty.
1. Whether the Position Was Created By Law, and,
Specifically, By “the Constitution or Laws of this
State”
The Court’s first “guideline” is that the position be “created
by law.” This guideline pertains to the requirement in Article 35
that the “office of profit” be “created by the Constitution or Laws

Page 7

Gen. 133] 139

of this State.” The position of LRA for the Washington Suburban
Sanitary Commission is unquestionably established under State
law: the Public Utilities Article of the Maryland Code. See PU §
18-203. The other two positions are established under county
law: the Montgomery and Prince George’s County codes.
The courts have not addressed whether Article 35 applies to
positions created under local government enactments, as opposed
to Acts of the General Assembly. Read in a vacuum, the phrase
“Laws of this State” could be interpreted to exclude laws enacted
by local governments, especially when the phrase, as used
elsewhere in the Constitution, refers only to Acts of the General
Assembly. See, e.g., Md. Const. Art. III, § 29 (providing that
“[t]he style of all Laws of this State shall be, ‘Be it enacted by the
General Assembly of Maryland.’”). For purposes of sovereign
immunity under the common law, however, the Court has stated
that “law” refers more generally to “Constitutional or legislative
enactment, such as a statute or local ordinance . . . .” de la
Puente, 386 Md. at 512. Accordingly, in applying the guideline
to determine whether a defendant was a “public officer” for
sovereign immunity purposes, both appellate courts have
recognized positions created by county codes as positions
“created by law.” Id. at 513 n.8 (stating that the position of
commissioner of the Frederick County Parks and Recreation
Commission “may be said to have been created by law, to wit, the
County Code”); Biser v. Deibel, 128 Md. App. 670, 679 (1999)
(holding that two positions established by the Town Code of Bel
Air were “created by law”).
We see little reason why the analysis of what constitutes an
“office” under Article 35 should be any different from that which
applies within the context of sovereign immunity. The Court of
Appeals typically applies the same guidelines when evaluating
any of the constitutional provisions that hinge on a person’s status
as a public office-holder. See, e.g., Conaway, 108 Md. App. at
494 (comparing James v. Prince George’s County, 288 Md. 315,
324 (1980) (applying guidelines in context of sovereign
immunity), and Nesbitt v. Fallon, 203 Md. 534, 544 (1954)
(applying guidelines to determine whether position is a “civil
office” under Article II, §§ 10 and 13)).
Moreover, recent legislative treatment of Article 35 suggests
that the phrase “Laws of this State” has traditionally been
understood to encompass offices created by local law. In 1995,
the General Assembly adopted a Joint Resolution that noted the

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“inherent unfairness” of the constitutional dual-office prohibitions
and stated that the prohibitions “place an onerous burden on
people who have chosen careers of protecting lives and fighting
fires, and on municipal officers.” Joint Resolution No. 7 (1995
Session) (emphasis added). The Legislature therefore asked the
Governor to appoint a task force to study the need for a
constitutional amendment and report its findings to the Governor
and General Assembly. Id. In its report, the resulting Task Force
to Study Dual Office Holding explained the effect that had been
given to the phrase “created by the Constitution or Laws of this
State”:
To a small degree, this language limits the
reach of [the Article 35] dual office
prohibition, viz., to posts of statutory or
constitutional origin. It has been relied upon
to exclude common law officers, such as
deputy sheriffs, and singular positions, such
as delegates to a constitutional convention,
from the operation of Article 35. It does not
mean that only State, as opposed to local,
officers are covered by the ban.
Task Force Report at 10, n.6 (emphasis added). Attached as
appendices to the report were advice letters in which then-
Counsel to the General Assembly Robert A. Zarnoch variously
advised that a county police officer, a county firefighter, and
certain town managers held “offices of profit” for purposes of
Article 35. Letter to Sen. Nancy L. Murphy (March 17, 1993);
Letter to Delegate-Elect James E. Malone (Dec. 14, 1994); Letter
to Sen. Idamae Garrott (Sept. 15, 1993).
In 1996, the General Assembly adopted, and the electorate
ratified, an amendment to Article 35 to provide that “[n]onelected
membership . . . in a law enforcement agency, a fire department
or agency, or rescue squad shall not be considered an office of
profit within the meaning of this Article . . . .” 1996 Md. Laws,
ch. 80 (ratified Nov. 5, 1996). The General Assembly thus
understood Article 35 to apply to positions created by the
enactments of local governments, and the amendment it adopted
reflected its preferences, later ratified by the voters, as to which
local positions should be exempt from the dual-office-holding
prohibition stated by the article.
The General Assembly’s understanding in 1995 and 1996
that Article 35 applies to local positions merely continued the
long-standing effect of the prohibition. Before the Constitution

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Gen. 133] 141

was amended to grant certain home-rule powers to counties and
municipalities, non-constitutional local positions that were created
“by law” were created by an enactment of the General Assembly,4
and so Article 35 applied to many local officers. See, e.g,
Hetrich, 222 Md. at 307 (noting that the position of county
business manager was created by an act of the General Assembly
and holding that it was an office of profit). We have seen nothing
to suggest that the home-rule amendments were intended to
license local officers to occupy multiple offices of profit; to the
contrary, when the General Assembly has wished to exempt
certain classes of officers from the article, it has adopted (and the
voters have ratified) exemptions that do so expressly.5 Moreover,
it does not appear to us that the concerns that led to the retention
of the dual-office prohibitions in the Maryland Constitution since
1776—“conflicts of interest, self aggrandizement, concentration
of power,” and the “blurring” of the doctrine of the separation of
powers—would evaporate for officials whose positions are
created by local ordinance. See Board of Supervisors, 246 Md. at
428. It has therefore long been our view that an “office of profit”
created by a local government’s enactment is subject to Article
35. See, e.g., Opinion No. 94-001, 21:8 Md. Reg. 619 (Jan. 5,
1994), 1994 Md. AG LEXIS 72, *2, 14 (unpublished)
(“concur[ring] entirely” with conclusion reached by the Anne
Arundel County Attorney that “the inhibitions of Article 35 of the
Declaration of Rights apply equally to offices of profit created by
counties and municipalities”); 68 Opinions of the Attorney
General 358, 359 (1983); 59 Opinions of the Attorney General

4
Some positions were instead created under the common law and
hence were not subject to Article 35. See, e.g., Turner v. Holtzman, 54
Md. 148, 159 (1880) (“office of deputy or under sheriff is a common
law office”); 27 Opinions of the Attorney General 287 (1942) (holding
that the deputy sheriff in Dorchester County held a position created by
common law).
5
Article 35 has been amended over the years to specify that certain
positions are not “offices of profit.” For example, after the Court of
Appeals held that the article disqualified a notary public from serving
as a member of a metropolitan commission, Moser, 235 Md. at 280, the
General Assembly amended Article 35 to provide that the “position of
Notary Public shall not be considered an office of profit within the
meaning of this Article.” 1964 Md. Laws, ch. 129 (ratified Nov. 3,
1964). None of the positions about which you ask falls within the
exclusions.

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109, 119 (1974).6 We therefore conclude that all three positions
meet the “created by law” criterion.
2. The Second Part of the “Ultimate Test”: The
Continuing Nature of the Position
The Maryland courts have often recited the requirement that
an office must involve duties that are “continuing in nature and
not occasional,” but only once has a position been deemed so
“occasional” as to fail the test. In Board of Supervisors, the Court
of Appeals likened a delegate to the 1967 constitutional
convention to a “male honeybee” in that the delegate “performs
his creative duty and then ceases to exist as a public functionary.”
246 Md. at 439-40. Noting the rarity of constitutional
conventions in Maryland history, the Court stated that “the
making of a constitution which, like the century plant, has taken a
hundred years to bloom may fairly be said to be occasional.” Id.
at 440. The Court concluded that “[t]he idea of continuity
contemplated by the ordinary test for an office is lacking.” Id. at
439-40. In other contexts, the Court has distinguished the
continuity and permanency of the office itself from the amount of
time a specific individual spends exercising the duties of the
office. See Lilly v. Jones, 158 Md. 260, 268-69 (1930) (noting
that, in the context of the incompatibility of offices doctrine, the
focus is “not upon what is done, or likely to be done, by the

6
On the suggestion of counsel for the Montgomery County Career
Fire Fighters’ Association, we compared Article 35 of the Declaration
of Rights to Article 15 to consider whether the inclusion of counties in
Article 15, but not in Article 35, could shed light on whether the
framers considered the phrase “created by the . . . Laws of this State” to
include laws passed by the counties and municipalities. This
comparison was ultimately unhelpful. When Articles 15 and 35 were
originally drafted, neither included a reference to counties. Article 15
originally applied to taxes “to be levied by the State,” and it was
amended in 1914 to apply also to taxes levied “by the Counties.” 1914
Md. Laws, ch. 390. That year, the General Assembly also adopted, and
the voters ratified, the constitutional amendment that granted home rule
powers to counties that chose to adopt a charter. Id., ch. 416; Md.
Const. Art. XI-A. In our view, the fact that the General Assembly did
not also adopt a change to Article 35 to reflect the possibility of local
enactments does not indicate its intent to exclude locally-created
officers from the prohibition. Instead, that fact, along with the 1996
amendments to exclude some local officers, could lead to an inference
that the General Assembly did not consider such a change necessary to
continue the applicability of the prohibition to local offices.

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Gen. 133] 143

incumbent in the performance of his duties, but what he may do
under the power conferred upon him”).
We applied these principles in 65 Opinions of the Attorney
General 381 (1980), where we concluded that the position of
election judge met the “continuity test” because the election
judges had set terms of office and were on call for any election
during their terms. Id. at 383. In arriving at that conclusion, we
turned to a treatise for guidance in applying the “continuity test”:
The elements of tenure and duration as
requisites of a public office have been held to
relate to the office itself, and not to the
incumbent. In other words, the requirement
that the position have some permanency and
continuity has been considered to mean
merely that the office itself have some
permanency and continuity.
Id. (quoting 67 C.J.S. Officers § 8, which now appears at
§ 15 of the 2012 edition). The Task Force to Study Dual Office
Holding summarized the rule succinctly: “[T]he actual exercise of
[the] powers is irrelevant to the public office inquiry. Rather, the
focus is on what the law authorizes the position to do.” Task
Force Report at 11, n.7.
The three positions at issue here clearly are not full-time
positions, and the duties they involve might seem to be
“occasional” in the ordinary sense of that word. Generally, the
incumbents’ duties involve addressing labor disputes. If no
disputes are pending, then there are no duties to be performed. As
a result, the frequency with which the incumbents perform their
duties will necessarily vary. However, the question is not the
frequency with which the incumbents actually perform their
duties, but the continuity of what each “may do under the power
conferred on him.” See Lilly, 158 Md. at 268-69. Unlike the
constitutional convention delegate who “cease[d] to exist as a
public functionary” after the convention, the three incumbents of
these positions hold terms for a set period of time and have varied
duties depending on the nature of the issues that arise. Like the
election judges whose positions we addressed in 65 Opinions of
the Attorney General 381, these officers are continuously
available, during their terms, to perform duties when the need

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arises. The respective roles as LRAs and Impasse Panel members
are thus continuing, whether or not the need arises.7
We conclude that the incumbents of all three positions
perform duties that are continuing in nature and not occasional.
In our view, all three positions meet this guideline.
3. The “Most Important Characteristic”: Whether the
Incumbent “Exercises Some Portion of the Sovereign
Power of the State”
The Court of Appeals has instructed that “[t]he most
important characteristic of a public office, as distinguished from
any other employment, is the fact that the incumbent is entrusted
with a part of the sovereign power to exercise some of the
functions of government for the benefit of the people.” Buchholtz
v. Hill, 178 Md. 280, 283 (1940); see also Nesbitt, 203 Md. at 544
(same). The Court has broadly defined the concept of “sovereign
power” as “any part of the sovereignty delegated by the people
through their constitution to the executive, legislative or judicial
branches of the government.” Board of Supervisors, 246 Md. at
440.
An individual exercises “sovereign power” when he or she
exercises some function of government “that can be validly
performed only pursuant to a specific grant of government
power.” 79 Opinions of the Attorney General 378, 380 (1994)
(citations and quotation marks omitted). The position must not be
“purely ministerial”; it must be substantive and call for the

7
In a previous Opinion concluding that membership on the State
Prosecutor Selection and Disabilities Commission constituted an
“office of profit” subject to Article 35, we acknowledged that “[w]e
might be constrained to conclude that the duties of a member of the
Commission are occasional rather than continuing if the only duty of
the Commission were to nominate the State Prosecutor since this duty
occurs only in the event of an actual or imminent vacancy in the office
and upon notification to the Commission by the Governor.” 60
Opinions of the Attorney General 121, 128 (1975). Ultimately,
however, we quoted and followed Lilly: “The question . . . should be
determined, not upon what is done, or likely to be done, by the
incumbent in the performance of his duties, but what he may do under
the power conferred upon him.” Id. at 129 (quoting Lilly, 158 Md. at
268-69). In any event, the officers we discuss here, when called upon,
exercise powers of greater duration than the occasional—and likely
one-time—nomination power we hypothesized in our earlier opinion.

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Gen. 133] 145

exercise of judgment and discretion. Id. Moreover, a person
must exercise sovereignty “in his own right” (i.e., not “under the
direction and control of superiors,” Westphal, 232 Md. at 340)
and “for the benefit of the public,” 57 Opinions of the Attorney
General 266, 269 (1972).
The Court of Appeals has held that the statutes applicable to
a deputy State auditor did not delegate any part of the State’s
sovereignty to him because the statutes made only one “mention
or indication of the deputy acting in his own official right or
name,” and even in that instance provided that “he is to act only
under the direction of his superior.” Gary v. Board of Trustees of
Employees’ Retirement System, 223 Md. 446, 452 (1960). We too
have applied these principles to particular positions, and our
opinions have frequently turned on the nature of the decisions that
the person may make “in his own right.” For example, we
concluded that a county attorney for Anne Arundel County held
an office of profit because the attorney had the authority to
administer oaths, issue subpoenas, and administer the county’s
self-insurance fund, including the ability to adopt rules and
regulations for the operation of that fund. 79 Opinions of the
Attorney General at 381-82; see also 60 Opinions of the Attorney
General 530, 531 (1975) (presiding at disciplinary hearings and
conducting hearings related to personnel grievances with “full
authority to make decisions” is sovereign); 57 Opinions of the
Attorney General 595, 601-03 (1972) (rulemaking power is “an
authority of sovereign dimensions”). By contrast, we advised that
a State personnel hearing officer who also had the authority to
issue subpoenas, administer oaths, and “adjudicate” disciplinary
matters did not exercise sovereign power because that employee
worked under the supervision of another State employee, and his
decisions were subject to “approval, rejection or modification” by
the department secretary. 57 Opinions of the Attorney General at
268; see also 72 Opinions of the Attorney General 281, 284
(1987) (standing examiner appointed by circuit court not an
“office of profit or trust,” despite having the power to issue
subpoenas, when examiner “renders no final decisions”).
Here, both of the LRAs may make final decisions in their
own right, subject only to judicial review. See MCC § 33-154(e)-
(g) (Montgomery County LRA); PU § 18-206 (WSSC LRA). We
therefore conclude that they exercise a part of the State’s

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sovereign powers.8 By contrast, a member of the Impasse Panel
of the Prince George’s County PERB lacks the authority, except
in limited circumstances, to impose a binding and final settlement
on the parties. PGCC § 13A-111(a)(2). Those circumstances are
when the parties mutually agree to a settlement or the Impasse
Panel has denied a labor organization the right to strike and has
required the parties to undergo compulsory arbitration. Id. Even
then, the Impasse Panel’s decision must be submitted to the
County Council for approval. Id.
That the Impasse Panel does not have authority to render
final and binding settlements suggests that a panel member—like
the State personnel hearing officer whose decisions were subject
to the department secretary’s approval, see 57 Opinions of the
Attorney General 266—does not meet the “most important
characteristic” of having been “entrusted with a part of the
sovereign power.” Cf. Nesbitt, 203 Md. at 544. In reaching this
conclusion, we recognize that a panel member does not serve
under the “direction and control” of an agency supervisor in the
same manner as the hearing officer in our earlier opinion. 57
Opinions of the Attorney General at 268-69. We believe,
however, that the lack of authority to render a final and binding
decision is the more important consideration here. See Cohen v.
Goldstein, 58 Md. App. 699, 714 (1984) (noting that the
conclusion in Matter of Anderson, 272 Md. 85 (1974), that circuit
court masters are empowered only to make recommendations to a
judge, “wiped away” the notion that the master is “an official of
the State”); 72 Opinions of the Attorney General at 284 n.4
(stating that, in light of Anderson and Cohen, our prior opinion

8
Although we recognize that the LRAs perform much the same
role as do third-party mediators in private sector labor disputes, that
fact is not material. Private entities can offer and perform services that
governments perform, but so long as a government entity has been
charged with a particular function, its authority to perform those duties
stems from its sovereignty. Cf. Rios v. Montgomery County, 386 Md.
104, 128-29 (2005) (citing Mayor of Baltimore v. Blueford, 173 Md.
267, 276 (1937)) (outlining the difference between governmental and
proprietary functions for purposes of governmental immunity as being
whether an act is “sanctioned by legislative authority” and solely
benefits the public as opposed to generating profit or private interest for
the government). Because the LRA positions here are “sanctioned by
legislative authority,” they exercise sovereignty even though their
occupants perform the same functions when acting as private
mediators.

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Gen. 133] 147

concluding that the examiner-master is an “office of profit,” see
50 Opinions of the Attorney General 57 (1965), was overruled).
We also wish to distinguish the conclusion in our earlier
opinion that personnel hearing officers, because they only
presided over internal matters involving State classified
employees, did not perform their duties “for the benefit of the
public.” 57 Opinions of the Attorney General at 269. We reach a
different conclusion here for two reasons. First, as a factual
matter, the public sector labor disputes that LRAs are called upon
to resolve—particularly those involving fire and rescue or water
and sanitation employees—have a greater potential to affect the
general public than the individual employee grievances heard by
the State personnel hearing officer. Given the local legislative
declarations of how avoiding labor unrest benefits the public, see
infra at 14-15, we cannot say that the work of the mediators “has
no bearing on, nor directly affects, any portion of the general
public.” Cf. 57 Opinions of the Attorney General at 269. More
importantly, because we had already concluded in our earlier
opinion that the State hearing officer did not exercise sovereignty
“in his own right,” we did not express the view there that a
position with duties that have only an “indirect” effect on the
general public cannot qualify as an “office of profit” for purposes
of Article 35. In fact, we are not aware of any instance in which
we or a Maryland court has found this consideration dispositive.
That the LRAs render final decisions that are binding on the
parties is the more important consideration and here suggests that
the positions are “offices of profit.”
4. The Remaining Guidelines: The Importance of the
Duty; the Term of Office, Oath, and Bond
a. “Important public duty”
The Court has not defined the “important public duty”
guideline, which is closely related to the now disused inquiry into
whether the position is one of “dignity and importance.” See
Duncan v. Koustenis, 260 Md. 98, 105 (1970) (noting that the
“dignity of office” guideline “has been greatly depreciated if not
abandoned”). Further, the Court has remarked that the “intangible
attributes of dignity and importance” are “relative and their
precise values as tests of office somewhat elusive.” Gary, 223
Md. at 450. Nonetheless, the Court has considered whether
certain public positions involve important public duties. See, e.g.,
Board of Supervisors, 246 Md. at 439 (“Certainly a delegate to a

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constitutional convention performs a highly important public duty
of great dignity.”); Moser, 235 Md. at 283 (noting that notary
publics are “required to perform essential and important duties
with integrity”); Gary, 223 Md. at 450 (stating that deputy state
auditor holds a position of dignity and importance); de la Puente,
386 Md. at 513 (accepting parties’ concession that county director
of parks, capital improvement administrator, recreation
superintendent, park superintendent, and safety inspector perform
important public duties). The Court did not elaborate on the
attributes that made these positions important.
The Montgomery County Code states the County’s policy on
the importance of bargaining collectively with fire and rescue
employees and resolving disputes promptly. See MCC § 33-147.
As relevant here, MCC § 33-147 declares the County’s policy
that, “[s]ince unresolved disputes in the fire and rescue service
harm the public and fire and rescue employees, adequate means
should be available to prevent disputes and resolve them when
they occur.” Id. “To that end,” the ordinance declares, “it is in
the public interest that fire and rescue employees have the
opportunity to bargain collectively over wages, hours, and other
terms and conditions of employment . . . .” Id. The County
Attorney’s memorandum states that the “authority and
responsibilities accorded the Montgomery County LRA . . .
demonstrate the dignity and importance of the functions that [the
incumbent performs],” and we see no reason to disagree.
The Prince George’s County Code contains a similar policy
statement, and the Impasse Panel members’ purview extends to
all employees, with certain exceptions relating to elected officials
and those in management. PGCC §§ 13A-101; 13A-102(g). In
adopting the policy, the County Council concluded that, “where
public employees have been granted the right to share in the
decision-making process affecting wages and working conditions,
they have become more responsive and better able to exchange
ideas and information on operations with their administrators.”
Id., § 13A-101(a). As a result, “government is made more
effective.” Id. As with the Montgomery County LRA, we see no
reason to question the importance of the duties performed by
Impasse Panel members.
The Public Utilities Article does not contain a similar
statement of purpose, but WSSC’s LRA performs duties that are
analogous to those of the Montgomery County LRA. The work
of WSSC employees also involves essential services; WSSC
provides water and sanitation services to customers in Prince
George’s and Montgomery counties.

Page 17

Gen. 133] 149

 The resolution of labor disputes, although ostensibly

pertaining only to the employer and the affected employees, can
have long-standing impacts on county governments, county
employees, and the public that funds their salaries. The LRAs
address matters implicating these essential public services; the
Impasse Panel members’ broader purview includes such matters;
and all three have the authority to address collective bargaining
matters that affect the employees who provide such services. In
our view, all three positions require individuals to perform an
important public duty.
b. Definite Term for which a Commission is Issued,
Bond, and Oath
The “definite term” inquiry focuses on whether the person
holds a “term of office fixed by statute or ordinance.” See, e.g.,
Jackson v. Cosby, 179 Md. 671, 675 (1941) (noting the lack of a
fixed term as one indication that a city engineer was not a “public
officer”); 65 Opinions of the Attorney General 381 (concluding
that election judges hold offices of profit, in part, because they
have a statutory term of office). Here, all three positions have a
set “definite term.” The Montgomery County LRA has a five-
year term, the Prince George’s County Impasse Panel member has
a two-year term, and the Washington Suburban Sanitary
Commission LRA serves either a one-year or a three-year term, as
applicable to the particular appointment. The definite nature of
these terms suggests that the positions constitute offices.
None of the three offices requires an oath or bond, which
would seem to weigh against the conclusion that they are “offices
of profit.” But the Court of Appeals has not placed much
emphasis on the requirement of a commission, oath, or bond. In
Westphal, for instance, the Court concluded that members of the
Howard County Metropolitan Commission held an office of profit
even without having taken an oath, given a bond, or received a
commission because they exercised “a large portion of the
sovereign power of government.” 232 Md. at 340. A few years
later, the Court did not address the “commission, bond, or oath”
factor at all when it held that a delegate to a constitutional
convention did not hold an office. Board of Supervisors, 246 Md.
at 439-40.
The application of this guideline points slightly towards
public officer status, as the fact that these positions carry definite

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terms likely weighs more heavily than the fact that none requires
an oath or bond.
5. Summary and Policy Considerations
Several factors might indicate that an Impasse Panel member
of the Prince George’s County PERB holds an office of profit:
the position is created by law, the incumbent performs an
important public duty, and the position is a continuing and not
occasional one. The most important factor to be considered,
however, is whether the individual exercises some portion of
government sovereignty. Impasse Panel members have the
authority to hold hearings, administer oaths, issue subpoenas, and
compel the attendance of witnesses, but the decisions the
members issue are recommendations only; they do not become
final unless and until the Prince George’s County Council
approves them. Impasse Panel members thus do not themselves
exercise the governmental power to resolve labor disputes. For
this reason principally, it is our opinion that a member of the
Impasse Panel does not hold an office of profit.
In contrast, it is our opinion that the LRAs for Montgomery
County and the Washington Suburban Sanitary Commission do
hold offices of profit. Their positions were created by law, they
exercise some portion of government sovereignty in their own
right by presiding over labor disputes and issuing final opinions,
and they perform important public duties that are potentially
continuing and not occasional. Although their positions do not
require a commission, oath, or bond, those characteristics are not
determinative. Because the LRAs qualify as offices of profit, a
person may not hold two such positions at the same time.
We think this conclusion furthers the policies that lie behind
the prohibition on dual office-holding. Although simultaneously
serving as the LRA in multiple jurisdictions may not raise
conflicts of interest or “blur[]” the lines between the executive,
legislative, and judicial branches, Board of Supervisors, 246 Md.
at 428, it would tend to concentrate influence over public sector
labor relations. And without a principle limiting such service, one
person could, theoretically, serve as the LRA in all Maryland
jurisdictions. Such a result would allow for the very “self
aggrandizement” and “concentration of power” that Article 35
was intended to protect against. Id. The conclusion we reach
here, though it may require local jurisdictions to expand their
search for qualified neutrals, best effectuates the legislative intent
by providing a diversity of perspective that might otherwise be
lacking.

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Gen. 133] 151

                        III
                     Conclusion
 The LRAs for Montgomery County and the Washington

Suburban Sanitary Commission hold offices of profit while the
Impasse Panel members of the Prince George’s County PERB do
not. Therefore, a person may not serve as an LRA for both
Montgomery County and the Washington Suburban Sanitary
Commission. A person who is an LRA for one of those entities,
however, may also serve on the Impasse Panel of the Prince
George’s County PERB.

                           Douglas F. Gansler
                           Attorney General of Maryland


                           Derek Simmonsen
                           Assistant Attorney General

Adam D. Snyder
Chief Counsel, Opinions & Advice