Does changing how an office is filled, or giving it an across-the-board raise, stop a Maryland legislator from later being appointed to it?

Plain-English summary

Delegate Gerald J. Curran asked the Attorney General whether members of the General Assembly could lose eligibility for appointment as Insurance Commissioner under Article III, section 17 of the Maryland Constitution, which bars a sitting or recently-sitting legislator from being appointed to an office that was created, or whose salary was increased, during that legislator's term. He posed two scenarios: repealing and reenacting the Insurance Code to change how the Commissioner is selected or the length of the term, and an across-the-board budget raise covering all state officers and employees, including the Commissioner. The opinion concluded that neither scenario would trigger the constitutional bar. Changing the selection method or term of an existing office does not "create" a new office, and a general, non-targeted budget raise for all state employees is not the kind of focused legislative action Article III, section 17 was written to prevent.

Currency note

This opinion was issued in 1982. 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 applied Article III, section 17 of the Maryland Constitution and Maryland case law construing it as they stood in 1982. Anyone researching whether a specific Maryland legislative action currently disqualifies a lawmaker from appointment to a particular office should verify the current constitutional and statutory text and any more recent case law, rather than relying on this opinion's 1982 analysis of the Insurance Commissioner scenario.

Common questions

Does reorganizing how an office is filled count as "creating" that office?
No, according to this opinion. It held that the General Assembly "creates" an office under Article III, section 17 only by bringing a genuinely new office into existence or increasing the number of seats in an existing one. Changing an existing office's duties, selection method, or term length does not create a new office within the meaning of that provision.

If every state employee gets a raise, does that block legislators from being appointed to a newly-raised office?
The opinion said no. It reasoned that an across-the-board budget increase is proposed by the Governor as a single line item covering thousands of positions, is not targeted at any particular office, and is only "approved" by the legislature's failure to strike or reduce that line item, none of which is the kind of focused, deliberate legislative action Article III, section 17 was meant to address.

What kind of pay raise would still trigger the constitutional bar?
The opinion pointed to a prior instance, described in a 1981 Attorney General letter, where members of the General Assembly were found ineligible for appointment to the Workmen's Compensation Commission because those offices had benefited from a raise tied to the annual salary review process, a process that involves specific legislative consideration of whether particular offices should get a raise, unlike a general across-the-board increase.

Background and statutory framework

Article III, section 17 of the Maryland Constitution provides that no Senator or Delegate, after qualifying, may during the whole period for which he or she was elected be appointed to any office that was created, or whose salary was increased, during that term, even if the legislator resigns before the term ends. Delegate Curran anticipated that the upcoming legislative session might affect the office of Insurance Commissioner and wanted to know in advance whether either of two kinds of legislative action, restructuring the office's selection method and term, or an across-the-board budget raise, would trigger this bar.

On the creation-of-office question, the opinion distinguished between instituting a genuinely new office (or new seats within one) and merely altering how an existing office's holder is chosen, its duties, or its term. Citing Kimble v. Bender, in which a senator could not be appointed to one of several newly created Justice of the Peace positions, against Mayor and Comm'rs v. Green, in which a delegate could be appointed to a town clerk position even though the legislature had changed the position's duties and selection process, the opinion concluded that repealing and reenacting the Insurance Code provisions governing how the Commissioner is selected, without adding new seats or offices, would not "create" the office within the meaning of Article III, section 17.

On the salary question, the opinion explained that the constitutional bar exists to eliminate bias, or the appearance of bias, from legislators voting themselves or associates into offices they had just enriched, citing Mayor and Comm'rs v. Green for that underlying purpose. It reasoned that a general, across-the-board raise for all state officers and employees, proposed by the Governor as a single budget line item and only "approved" by the legislature's failure to strike it, lacks the focused, deliberate character of either creating an office or singling out a particular office's salary for increase. By contrast, the opinion's footnote 2 described a 1981 instance in which General Assembly members were found ineligible for the Workmen's Compensation Commission because those offices' pay had risen through the annual salary review process, a process that does involve specific legislative consideration of individual offices' pay. The opinion also noted out-of-state authority split on comparable state constitutional provisions, citing Jenkins v. Jensen and Shields v. Toronto (Utah) as consistent with its reasoning, and Warwick v. State ex rel. Chance (Alaska) as reaching a different result under Alaska's provision.

An Editor's Note appended to the opinion explains that it was originally written as a letter of advice and was published in a slightly revised format because of the novelty of the issues raised.

Citations

Statutes:

• Md. Const. art. III, §17
• Chapter 125, Item No. 26.01.07.01, Laws of Maryland 1982

Cases:

• Kimble v. Bender, 173 Md. 608 (1938)
• Mayor and Comm'rs v. Green, 144 Md. 85 (1923)
• 61 Opinions of the Attorney General 152, 157-58 (1976)
• 54 Opinions of the Attorney General 48 (1969)
• Jenkins v. Jensen, 632 P.2d 858 (Utah 1981)
• Shields v. Toronto, 395 P.2d 829 (Utah 1964)
• Warwick v. State ex rel. Chance, 548 P.2d 384 (Alaska 1976)

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/1982/Volume67_1982.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

GENERAL ASSEMBLY

Public Office—Creation of Office—Increase in Salary—Senator or Delegate not Precluded From Appointment to Office for Which the Term or Manner of Selection Is Changed or the Salary Is Increased by General Across-the-Board Budgetary Raise

December 16, 1982

The Honorable Gerald J. Curran
Maryland House of Delegates

You have requested our opinion on the circumstances under which members of the General Assembly might become ineligible for appointment as Insurance Commissioner by virtue of Article III, §17 of the Maryland Constitution. This section provides as follows:

"No Senator or Delegate, after qualifying as such, notwithstanding he may thereafter resign, shall during the whole period of time, for which he was elected, be eligible to any office, which shall have been created, or the salary, or profits of which shall have been increased, during such term."

You anticipate that, at its next Session, the General Assembly may enact legislation affecting the office of Insurance Commissioner. You wish to know whether particular legislative action might give rise to the prohibition in Article III, §17.

Specifically, you posed the following questions:

1. If the General Assembly repealed and reenacted portions of the Insurance Code to change either the manner in which the Insurance Commissioner is selected or the term of that office, would the office of Insurance Commissioner thereby "have been created" within the meaning of Article III, §17?

2. If the General Assembly enacted a budget in which the salaries of all State officers and employees, including the Insurance Commissioner, were raised by an equal percentage, would such an across-the-board raise be a salary increase for the Insurance Commissioner within the meaning of Article III, §17?

For the reasons given below, we have concluded that the repeal and reenactment of the provisions of the Insurance Code governing the selection of the Insurance Commissioner would not "creat[e]" that office within the meaning of Article III, §17. Moreover, although not entirely free from doubt, an across-the-board salary increment for all State officers and employees would not, in our view, constitute a salary increase under that provision. Accordingly, neither such occurrence would give rise to the prohibition in Article III, §17.

I
Creation of an Office

The General Assembly "create[s]" an office, within the meaning of Article III, §17, when it brings a new office into existence, either by instituting an office where none previously existed or by increasing the number of seats of a previously established office.

However, if an office already exists and the General Assembly merely changes its duties, the method by which its holder is selected, or the length of its term, the General Assembly has not thereby "created" an office within the prohibition of Article III, §17. Compare Kimble v. Bender, 173 Md. 608 (1938) (Senator may not be appointed to one of additional Justice of the Peace positions established by the General Assembly) with Mayor and Comm'rs v. Green, 144 Md. 85 (1923) (Delegate may be appointed to town clerk position, although General Assembly had changed its duties and selection process). See also 61 Opinions of the Attorney General 152, 157-58 (1976).

Accordingly, the kind of repeal and reenactment to which you refer in your question would not "creat[e]" the office of Insurance Commissioner.

II
Increase in Salary

The prohibition in Article III, §17 is intended to eliminate the bias or the appearance of bias that would otherwise attend General Assembly approval of measures from which its members could later profit. Mayor and Comm'rs v. Green, 144 Md. at 88. In light of this purpose, General Assembly approval of a general pay raise should not be understood to give rise to the prohibition.

Such a raise does not result from the kind of affirmative action by the General Assembly to which Article III, §17 appears to be directed. The increase is proposed by the Governor as a single line item in the budget.1 It is not earmarked for the Insurance Commissioner or other designated officers; rather, the Insurance Commissioner would benefit from the increase simply because he or she is one of thousands for whom a general salary increase has been passed. Finally, the General Assembly does not affirmatively vote for the increase for particular offices; instead, it only "approves" the general increase by declining to strike or reduce the line item.

1 See, e.g., Chapter 125, Item No. 26.01.07.01, Laws of Maryland 1982.

We believe that Article III, §17 contemplates much more direct action by the General Assembly than this extremely attenuated link between budget consideration and the consequent pay increase for the affected offices. Creation of an office, the other event that gives rise to the prohibition in Article III, §17, obviously entails both focused attention on the particular office and legislative action directly affecting that office. Article III, §17 similarly applies to pay increases that involve comparably focused legislative action.2 Consideration of a budget line for a general salary increase lacks that characteristic.

2 For example, the annual salary review process involves specific consideration by the General Assembly of whether particular offices are to receive pay raises. See Letter from Stephen H. Sachs, Attorney General, to Harry Hughes, Governor (August 2, 1981) (Article III, §17 precludes appointment of General Assembly members to Workmen's Compensation Commission, because those offices had benefited from a pay raise derived in part from annual salary review).

In our view, Article III, §17 cannot reasonably be construed to bar all members of the General Assembly from all State offices simply as a result of that body's failure to delete the Governor's proposal for an across-the-board salary increase. See generally 54 Opinions of the Attorney General 48 (1969) (pay raise resulting from constitutional amendment). See also Jenkins v. Jensen, 632 P.2d 858 (Utah 1981) and Shields v. Toronto, 395 P.2d 829 (Utah 1964) (comparable provision of Utah Constitution). But see Warwick v. State ex rel. Chance, 548 P.2d 384 (Alaska 1976) (comparable provision of Alaska Constitution).

III
Conclusion

In summary, it is our opinion that if the General Assembly changed the selection method and term of the Insurance Commissioner and, as part of an across-the-board salary increase for all State officers and employees, increased the salary of the Insurance Commissioner, members of the General Assembly would nevertheless remain eligible for appointment to that office. Neither action would give rise to the prohibition in Article III, §17 of the Maryland Constitution.

Stephen H. Sachs, Attorney General
Jack Schwartz, Assistant Counsel
Opinions and Advice
Avery Aisenstark
Chief Counsel,
Opinions and Advice

Editor's Note: The preceding Opinion was originally written as a letter of advice. Because of the novelty of the issues raised, it is published here in a slightly revised format.