Maryland Attorney General Opinion 99OAG242

242                                                  [99 Op. Att’y

          PUBLIC OFFICERS AND EMPLOYEES
LOCAL GOVERNMENT – BOARD OF COUNTY COMMISSIONERS
   MAY NOT APPOINT ONE OF ITS OWN MEMBERS AS A
   NON-EX OFFICIO MEMBER OF THE PLANNING
   COMMISSION
                       December 23, 2014

The Honorable Jan H. Gardner
County Executive

      You have asked for our opinion on whether the Board of
County Commissioners of Frederick County (“BOCC”), in the
final days of its existence as the County’s governing body,1
validly appointed its sitting president to the Frederick County
Planning Commission. Specifically, you ask whether the BOCC’s
November 24, 2014 appointment of then-President Blaine Young
to the planning commission either resulted in his holding two
“offices of profit” in violation of Article 35 of the Declaration of
Rights or violated the common law rule against “incompatible”
positions. You also ask what effect any violation of those
principles would have on Mr. Young’s continuing service on the
planning commission.
      In accordance with our policy, you provided an opinion of
the County Attorney on these questions. The County Attorney
concluded that Mr. Young’s appointment violated both the dual
office-holding prohibition of Article 35 and the common law rule
barring an individual from holding two incompatible positions,
but that it was not clear which of the two positions Mr. Young
retained as a result. See Memorandum of John S. Mathias, County
Attorney, to Jan H. Gardner, County Executive (Dec. 9, 2014)
(“County Attorney Opinion”). We also received materials from
Mr. Young, including a November 6, 2014 email from the County
Attorney addressing the potential effect of simultaneously holding
two offices of profit and a letter from C. Paul Smith—a former




  1
     Effective December 1, 2014, Frederick County became a charter
county governed by a seven-member County Council, with certain
powers granted to an elected County Executive. See Frederick County
Charter §§ 802, 201, Article 4.
Gen. 242]                                                              243

colleague of Mr. Young on the BOCC—requesting that we not
render an opinion.2
      We agree with the County Attorney’s conclusion that the
two positions are “offices of profit” and “incompatible,” but, for
reasons based on other law, we conclude that Mr. Young was
ineligible for appointment as a “citizen”3 member of the planning
commission and thus never validly held the position. The
common law generally prohibits a body from appointing one of
its own members to a position on another body. Section 2-102 of
the Land Use Article provides an exception to the common law; it
authorizes a board of county commissioners to appoint one its
members to serve on the planning commission in an ex officio
capacity. It does not, however, authorize the county com-
missioners to appoint one of their own as a non-ex officio member
of the planning commission. Because the statutory provision is a
specific grant of authority that was enacted in derogation of
common law, it must be construed narrowly so as not to imply
additional powers. So construed, the statute does not give the
BOCC the power to appoint Mr. Young as a “citizen” member of
   2
       In his letter, Mr. Smith asserts that it is not appropriate for us to
issue an opinion here because “this matter is an actual, existing case
and controversy,” and because Mr. Smith did not “believe Article V of
the State Constitution authorizes such an opinion.” Letter from C. Paul
Smith to Douglas F. Gansler, Attorney General (Dec. 15, 2014). We
disagree. Although we generally will not issue an opinion on any
question that is the subject of current or imminent litigation, we are not
aware of any such litigation here. And while Article V, § 3 of the
Maryland Constitution does not require us to issue opinions in response
to local government requests, when resources allow, we provide
assistance to local governments to “help resolve legal matters involving
substantial issues of State law.” See “Frequently Asked Questions
About Opinions of the Attorney General; Can a local government
official request an Opinion of the Attorney General?” (available at
http://www.oag.state.md.us/Opinions/faq.htm). We have previously
issued opinions in response to requests from the Frederick County
Board of County Commissioners. See, e.g., 87 Opinions of the
Attorney General 66 (2002); 67 Opinions of the Attorney General 151
(1982); 71 Opinions of the Attorney General 128 (1986).
   3
      Participants in the November 24 BOCC meeting that resulted in
Mr. Young’s recent appointment used the term “citizen member” and
“five-year member” to describe a member of the planning commission
who does not serve in an ex officio capacity. We use the term “citizen”
member in that same sense.
244                                                     [99 Op. Att’y

the planning commission. Mr. Young was thus ineligible for the
position, and his appointment was ineffective from the outset.
                                 I
                            Background
     The questions you pose require us to describe the law
governing the composition of local jurisdictions’ planning
commissions and the facts regarding the appointment of Mr.
Young to Frederick County’s planning commission. Also
relevant are the provisions of the Frederick County Code on the
compensation of members of the BOCC and the planning
commission.
A.       Provisions Governing Planning Commission Membership
         1.   State Law
      The Land Use Article of the Maryland Annotated Code
authorizes local jurisdictions to “establish by local law a planning
commission with the powers and duties set forth in [Division I of
the Land Use Article].” Md. Code Ann., Land Use (“LU”) § 2-
101; see also LU § 1-101(i) (defining “local jurisdiction” to
include “a county”).4 The Article also sets forth the parameters
applicable to a local jurisdiction’s establishment of a planning
commission, if it chooses to establish one. As relevant here, the
statute prescribes the composition of the planning commissions
that local jurisdictions may create: a planning commission may
consist of “three, five, or seven members,” and “[o]ne member
may be a member of the legislative body, who serves as an ex
officio member concurrent with the member’s legislative term.”
LU § 2-102(a). The statute also sets the term for the other,
“citizen,” members: “The term of a planning commission member
other than an ex officio member is: (i) 5 years; or (ii) until the
member’s successor takes office.” LU § 2-102(c)(1).
      Planning commission members are appointed by the local
jurisdiction’s governing body or its designee under the applicable
local law, or, “if there is a single elected local executive,” by the
executive, subject to confirmation by the legislative body. LU
§ 2-102(b). The statute also provides for appointments in the
event of a mid-term vacancy: “If a vacancy occurs during the
     4
     Except as noted, all references to the Land Use Article are to the
2012 volume, with the 2014 Supplement.
Gen. 242]                                                       245

term of an appointed member, the vacancy shall be filled for the
unexpired term in the same manner as is required for appointment
under [§ 2-102(b)].” LU § 2-102(e).
     2.     Local Law
     Frederick County has elected to create a planning
commission. See Public Local Law for Frederick County,
Frederick County Code (“County Code”) § 1-13-16. Because the
ordinances that address the organization of the planning
commission do not explicitly identify what entity has the
authority to appoint members of the planning commission, see id.
§§ 1-13-16 through 1-13-21, the BOCC was by default the
appointing authority under LU § 2-102(b)(1) while Frederick
County operated under the commission form of governance. As
to vacancies, the County Code provides: “Vacancies occurring
otherwise than through the expiration of term shall be filled for
the unexpired term by the County Commissioners.” County Code
§ 1-13-18. Planning commission members are “eligible for
reappointment.” Id. Effective December 1, 2014, however, the
County Executive holds the power to appoint members to fill any
type of vacancy on the planning commission. Frederick County
Charter § 412(b).
      As required by the County Code, the planning commission
has adopted rules that govern the transaction of business before it.
See Rules of Procedure of the Frederick County Planning
Commission (“Planning Commission Rules”); County Code § 1-
13-19 (requiring the planning commission to adopt rules).
Section 2.3 of those rules provides: “A designated member of the
County Commissioners may serve as a voting member or may be
a member of the [Planning] Commission having all the rights and
privileges of the regularly appointed members, and serve in an ex-
officio capacity concurrent with his or her official term, as
determined by the Board of County Commissioners.”
B.   County Provisions on the Compensation of the Board of
     County Commissioners and the Planning Commission
     Section 2-2-18(a)(l) of the Frederick County Code provides:
“Each member of the board of county commissioners is entitled to
an annual salary of $45,000 as full compensation for services as a
member of the board of county commissioners or as a member of
any other county board or agency.” The County Attorney tells us
that members of the planning commission other than the ex officio
246                                               [99 Op. Att’y

member receive compensation of $75 per meeting. The ex officio
County Commissioner member receives no additional com-
pensation for service as a member of the planning commissioner.
See County Code § 2-2-18(a)(1).
C.    The BOCC’s Appointment of Mr. Young to the Planning
      Commission
     Mr. Young served as the President of the BOCC from
December 2010 until the Frederick County Charter took effect on
December l, 2014. On that date, the BOCC ceased to exist.
Frederick County Charter §§ 802, 808. During his term of office,
the BOCC appointed Mr. Young to the planning commission as
the Board’s ex officio member, as permitted by LU § 2-102(a)(2)
and § 2.3 of the planning commission rules. Mr. Young was an
unsuccessful candidate for County Executive in the November
2014 election.
     On November 24, 2014, the BOCC convened its last
scheduled public meeting before its dissolution. After the
conclusion of the items specified on the agenda, Mr. Young
announced his immediate resignation from the planning
commission as its ex officio member and read to the other Com-
missioners a letter of resignation to that effect. Commissioner
Smith moved to accept Mr. Young’s resignation and to appoint
Mr. Young to fill a new five-year term as a “citizen” member of
the planning commission effective November 30, 2014. The
motion was seconded by Commissioner Shreve. During the
debate that followed, Commissioner Gray expressed surprise at
the motion, which he ultimately opposed, and the County
Executive-Elect stated that the appointment of Mr. Young to a
new five-year term usurped the County Executive’s appointment
power. The motion was adopted by a 3-1 vote, with
Commissioner Gray voting against. At some point in the
proceedings, Mr. Young passed the gavel to Commissioner Smith
and did not vote on the motion.
     The planning commission regularly meets on the second
Wednesday of each month but it may also hold additional
meetings as needed. The planning commission did not, however,
meet on November 30—the day on which Mr. Young purportedly
served as both County Commissioner and member of the planning
commission—and Mr. Young received no compensation for his
services as a member of the planning commission for that day.
County Attorney Opinion at 2.
Gen. 242]                                                               247

                                   II
                                 Analysis
      Hetrich v. County Commissioners of Anne Arundel County,

 (1960), provides the analytical framework for
answering the questions you pose. There, the Court of Appeals
held that a county commissioner was ineligible for appointment
by the commissioners to the office of county business manager.
In reaching that holding, the Court described Article 35’s
prohibition on holding two “offices of profit,” the “incompatible
positions” doctrine, and the ramifications of holding two such
positions simultaneously. The Court also clarified that, where an
officer is appointed to a second position for which he is ineligible,
the appointment is “ineffective,” 

, and a “nullity.” 

.
      The ineligibility that makes an appointment to a second
office a “nullity” can be based on a constitutional, statutory, or
common law prohibition. 

 In Kimble v. Bender, for example,
the basis for the ineligibility was constitutional: Art. III, § 17 of
the Maryland Constitution prohibited a legislator from being
appointed to an office that was created by statute during his term
in the Legislature. 

 (1938). Here, the
circumstances implicate a common law prohibition: the rule that
“a member of an appointing board is ineligible for appointment
by the board even though the member’s vote is not essential to a
majority in favor of an appointment.” 67 C.J.S. Officers § 31, at
208 (2012); see also, e.g., 63C Am.Jur.2d Public Officers and
Employees § 93, at 563-64 (2009). This rule is based on the
rationale that “the appointing board cannot absolve itself of
ulterior motives if it appoints one of its own, whether or not his
vote was necessary to the appointment, since the opportunity
improperly to influence the other members of the board is there.”
Hetrich, 

.
      In Hetrich, the Court of Appeals stated, and then applied, the
common law rule that “a member of an appointing body is
ineligible for appointment to a conflicting office by that body,
even though his own vote is not essential to the appointment.”5

   5
      As we have previously explained, this passage in Hetrich could
be read to require that, in order for the rule of ineligibility to apply, the
two offices at issue must be “conflicting” offices. 76 Opinions of the
Attorney General 142, 144 n.1 (1991). We doubt that the Court of
248                                                       [99 Op. Att’y

Hetrich, 

. It therefore held that the appoint-
ment of a county commissioner by the board of county
commissioners to serve as acting county business manager was
“ineffective.” 

. The same rule would ordinarily apply
here to prohibit the County Commissioners from appointing one
of their own members to the planning commission.
      However, as with common law rules generally, the rule of
ineligibility applied in Hetrich may be altered by legislation, see
76 Opinions of the Attorney General at 145 n.3, and the General
Assembly has done so in § 2-102 of the Land Use Article.
Section 2-102 states that “[o]ne member of the planning
commission may be a member of the legislative body, who serves
as an ex officio member concurrent with the member’s legislative
term.” LU § 2-102(a)(2). Pursuant to this provision, the Board
had the authority to appoint one of its own members to serve on
the planning commission, but that member was only allowed to
serve ex officio,6 with his term on the commission coinciding with
his legislative term.


Appeals meant that; “[n]either the rationale offered for the common
law rule of ineligibility in Hetrich, nor in caselaw generally, appears to
limit the rule to appointments to ‘conflicting’ positions.” Id. (internal
citations omitted). But even if the rule were so limited, the positions in
question here are “conflicting.” The County Commissioners had the
power to appoint members of the planning commission, remove them
for cause, and set their compensation. See County Attorney Opinion at
5; see also Hetrich, 

 (“The fundamental test of
incompatibility at common law is 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.”).
   6
       Our office has “wrestled with the interaction of dual office
prohibitions and [§ 2-102’s] authorization of ‘ex officio’ service on a
planning commission by members of a county or municipal
corporation’s legislative body.” Letter of Advice from Robert A.
Zarnoch, Assistant Attorney General, to Del. Richard A. Sossi at 3
(Nov. 16, 2005). To some extent, the term “ex officio” is a misnomer
in this context; “[t]rue ‘ex officio’ service arises solely and
automatically by virtue of a person’s holding of a particular office, not
by the mechanism of a discretionary appointment.” Id.; see also 61
Opinions of the Attorney General 152, 163 (1976) (“[T]he ex-officio
position must arise directly from holding the first office.”). We need
not decide here if the County Commissioner serves on the planning
commission in a “true” ex officio capacity to conclude that LU § 2-102
Gen. 242]                                                         249

      Because the Land Use Article is a grant of authority, and a
very specific one, the authority provided in § 2-102 acts as a
mandatory limitation, and prohibits the county commissioners
from exercising their appointing authority in any other manner.
See Office & Professional Employees Intl. Union v. Mass Transit
Admin., 

 (1982) (stating that, “where a statute
authorizes or permits a person or agency to take a certain type of
action in a particular manner, such manner becomes a mandatory
limitation, and the action must be taken in conformity with it”);
see also Mossburg v. Montgomery County, 

(1993) (applying the principle to a State zoning enabling
provision). And because LU § 2-102 was enacted in derogation
of the common law rule against a body appointing one of its own
members, it must be construed narrowly. See Walzer v. Osborne,

 (2006). As the Court of Appeals declared in
Gleaton v. State, “it is not to be presumed that the legislature by
creating statutory assaults intended to make any alteration in the
common law other than what has been specified and plainly
pronounced.” 

 (1964) (quoted in Walzer, 

); see also Witte v. Azarian, 

(2002) (requiring “clear legislative intent” to alter the common
law). Here, the clear, specific, and plain terms of the statute do
not authorize the BOCC to appoint one of its own members to
anything other than a single ex officio spot on the planning
commission. Accordingly, we conclude that the Board did not
have the authority to appoint one of its own as a “citizen” member
of the planning commission with a term that exceeds his
legislative term. Under Hetrich, then, the appointment of Mr.
Young was ineffective.7


must be viewed as a statute in derogation of common law. See Letter of
Advice from Robert A. Zarnoch, Assistant Attorney General, to Sen.
James C. Simpson and Del. John W. Quade, Jr. at 4 (March 22, 1979)
(concluding that § 3.02 of former Art. 66B—the predecessor to LU § 2-
102—abrogated the common law “incompatible positions” doctrine).
   7
     We recently addressed the relative roles of a planning
commission and the local governing body. See 99 Opinions of the
Attorney General 152 (2014). The statutory scheme does not suggest
that the governing body may effectively assume the planning
commission’s role by appointing multiple members of the governing
body to the planning commission as “citizen” members. See id. at 153-
56 (describing functions assigned to each body). Also in that Opinion,
we traced the legislative history of Maryland’s planning authorities
from their origins in the 1928 Standard City Planning Enabling Act to
250                                                      [99 Op. Att’y

       We agree with the County Attorney that the positions of
County Commissioner and member of the planning commission
are “offices of profit” and “incompatible positions,” but because
the Board’s attempted appointment of Mr. Young was void from
the outset, his occupation of the planning commission position
was only “illusory.” See Hetrich, 

. As a result,
Mr. Young never actually held either a “second office of profit
within the meaning of Art. 35 of the Declaration of Rights, or an
incompatible office under the common-law rule.” 

.
There is thus no need for us to determine under the “office of
profit” and incompatible position doctrines whether Mr. Young
resigned his first office by accepting the second. 

 His
purported appointment to the second was void in the first place,
and he simply remained in his position as County Commissioner
as if the appointment had never happened.8 See 

                                III
                             Conclusion
     Maryland common law generally prohibits a body from
appointing one of its own members to a position on another body.

their recodification in the current Land Use Article. Id. at 161-67.
Throughout that history, every version of what is now LU § 2-102 has
provided that the local legislative body may appoint one of its members
to the planning commission, with that one member serving ex officio
and for a term that corresponds to the tenure of his elective office. See
1933 Md. Laws, ch. 599 (codified at Md. Ann. Code, art. 66B, § 3);
Md. Ann. Code art. 66B, § 12 (1935 Supp., 1957, 1967 Repl. Vol.);
Md. Ann. Code art. 66B, § 3.02 (1970 Repl. Vol., 2003 Repl. Vol.). As
described in the 1928 model planning act, the purpose of having the
local legislative body represented on the planning commission was so
that it could be “kept in touch with what the . . . planning commission
is doing.” U.S. Dep’t of Comm., The Advisory Committee on City
Planning and Zoning, “A Standard City Planning Enabling Act” at 10
n.15 (1928). “This can best be accomplished,” the committee stated, by
authorizing the legislative body to select “one of its own members” to
serve on the commission, id., in an “ex officio” capacity and with a
term that corresponds to the member’s “official tenure[].” Id. at 10-11.
  8
     Although we conclude that the Board did not have the authority
to appoint Mr. Young as a “citizen” member of the planning
commission, it did have the authority to appoint him—or, to be
accurate, re-appoint him—as the Board’s ex officio member of the
commission. As LU § 2-102 plainly provides, however, Mr. Young’s
term as an ex officio member expired when his term as county
commissioner ended on December 1.
Gen. 242]                                                    251

Although LU § 2-102 provides an exception to the common law
for ex officio appointments, that exception, construed narrowly,
did not authorize the Board of County Commissioners to appoint
one of its own members as a non-ex officio member of the
planning commission. Mr. Young’s appointment as a “citizen”
member of the planning commission was thus ineffective.
                              Douglas F. Gansler
                              Attorney General of Maryland
                              Adam D. Snyder
                              Chief Counsel, Opinions & Advice