Can Maryland let a county pay for its own lawyer for the sheriff instead of using the Attorney General's office?

Plain-English summary

The Governor asked the Attorney General to review House Bill 1685, a bill that would have let Cecil County pay for an attorney to represent its Sheriff, with compensation approved by the County Commissioners. The opinion concluded the bill could be signed into law, but only if it and the existing local law it amended were administered consistently with Article 32A, §5(a) of the Maryland Code and the Attorney General's constitutional prerogatives. It reasoned that a sheriff is a State constitutional officer subject to the State judicial system, independently responsible for enforcing criminal laws and, in many counties, administering correctional facilities, and had long been a client of the Attorney General's office, so the General Assembly could not strip the Attorney General of ultimate constitutional responsibility for representing a sheriff the way it could for agencies with a more limited or local role. The opinion found a way to reconcile the bill with the Constitution anyway: since Article 32A, §5(a) already gave the Attorney General power to appoint "special counsel" for a State officer or agency, the bill could be implemented by having the Attorney General authorize the county-funded lawyer as special counsel, preserving the Attorney General's ultimate responsibility for the Sheriff's representation while still letting the county's arrangement go forward.

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's own closing editor's note records that House Bill 1685 was signed into law as Chapter 898, Laws of Maryland 1982, effective July 1, 1982. Maryland's statutes governing the Attorney General's representation authority, special counsel appointments, and county sheriff funding arrangements may have changed further since 1982. Verify the current version of Article 32A (since recodified) and any amendments to Cecil County's local sheriff-counsel law before relying on any specific description of how a county may fund representation for its sheriff.

Common questions

Can a Maryland county hire its own lawyer for the sheriff instead of using the Attorney General?
Not on its own, according to this opinion. It concluded the Attorney General could not be deprived of ultimate constitutional responsibility for representing a sheriff, but a county-funded arrangement could work if the Attorney General formally appointed that lawyer as "special counsel" under Article 32A, §5(a).

Why couldn't Cecil County just pay for its own sheriff's lawyer directly, the way some other state agencies use their own counsel?
The opinion explained that a narrow class of agencies with a distinctly local orientation, such as county boards of education or county liquor boards, could be represented by counsel designated by the General Assembly, but a sheriff did not fall into that category because a sheriff is a State constitutional officer whose representation is characteristic of the Attorney General's own constitutional duties.

Did this opinion mean Cecil County's plan to pay for the sheriff's attorney was struck down entirely?
No. The opinion found a path to make the bill work: as long as the Attorney General authorized the county-funded attorney as special counsel under the existing special counsel statute, the arrangement could proceed without depriving the Attorney General of constitutional responsibility for the Sheriff's representation.

Background and statutory framework

The opinion applied Article V, §3(a)(1) and (2) of the Maryland Constitution, which gives the Attorney General responsibility for prosecuting and defending cases involving the State in the appellate courts and, more broadly, for investigating and prosecuting or defending civil and criminal matters on the State's behalf. Citing Murphy v. Yates, the opinion noted that a constitutionally created office's powers cannot be reduced by statute or "transfer of duties characteristic of the office" to another body created by the legislature. It distinguished a narrow class of State agencies whose specialized or local character let the General Assembly designate separate counsel for them (citing examples like the Public Service Commission, the Human Relations Commission, and County Boards of Education) from a sheriff, who the opinion described as a State constitutional officer under Article IV, §44, subject to the State judicial system per Green v. State, and a longstanding client of the Attorney General's office. Because representing a sheriff was "characteristic of the duties of the Attorney General," the opinion concluded the General Assembly could not transfer that responsibility away, even through the seemingly limited mechanism in House Bill 1685.

The opinion resolved the tension between the county's funding proposal and the Attorney General's constitutional role by pointing to Article 32A, §5(a), which already barred any State board, commission, department, officer, or institution from being represented by any counsel "other than the Attorney General, his deputies or assistants, or a special attorney or counsel appointed by the Attorney General," and to the companion special-counsel provision in Article 32A, §12E, under which the Attorney General could appoint special counsel with compensation approved by the Board of Public Works when it was impracticable for the Attorney General's own office to provide the service. Read together, these statutes let the county's funding arrangement proceed in substance, so long as the attorney was formally appointed as special counsel by the Attorney General rather than retained independently by the county.

Citations

Statutes:

• Article 32A, §5(a) of the Maryland Code (bar on State officers using counsel other than the Attorney General or Attorney General-appointed special counsel)
• Article 32A, §12E of the Maryland Code (Attorney General's authority to appoint special counsel)
• Article V, §3(a)(1) and (2) of the Maryland Constitution (Attorney General's prosecution and defense duties)
• Article IV, §44 of the Maryland Constitution (sheriff as a State constitutional officer)
• Article 78, §12 of the Maryland Code (Public Service Commission counsel)
• Article 49B, §2 of the Maryland Code (Human Relations Commission counsel)
• Transportation Article, §7-209 (Mass Transit Administration counsel)
• Article 40A, §2-102(i) of the Maryland Code (State Ethics Commission counsel)
• Education Article, §4-104 (County Boards of Education counsel)
• Article 2B, §158 of the Maryland Code (County Liquor Boards counsel)
• Chapter 898, Laws of Maryland 1982 (enactment of House Bill 1685)

Cases:

• Murphy v. Yates, 276 Md. 475, 492 (1975)
• Green v. State, 122 Md. 288 (1914)

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.

ATTORNEY GENERAL

Public Officers—Sheriffs—Counsel—Attorney General Has Ultimate Responsibility to Act as Counsel to Sheriffs

May 27, 1982

The Honorable Harry Hughes
Governor

We have reviewed House Bill 1685 (Cecil County—Attorney to the Sheriff—Compensation), which authorizes the Sheriff of Cecil County to appoint an attorney to be paid "such amounts and at such times as may be approved by the County Commissioners".

Although the bill may be signed into law, it is our view that, to be constitutional, House Bill 1685 and the existing law it amends (§1-4 of the Public Local Laws of Cecil County) must be administered in accordance with Article 32A, §5(a) of the Maryland Code and the constitutional prerogatives of the Attorney General.

I
Background

In Murphy v. Yates, 276 Md. 475, 492 (1975), the Court of Appeals explained that:

"If an office is created by the Constitution, and specific powers are granted or duties imposed by the Constitution, although additional powers may be granted by statute, the position can neither be abolished by statute nor reduced to impotence by the transfer of duties characteristic of the office to another office created by the legislature[.]" (Emphasis added.)

In this regard, Article V, §3(a)(l) and (2) of the Maryland Constitution provides as follows:

"The Attorney General shall: (1) Prosecute and defend on the part of the State all cases pending in the appellate courts of the State, in the Supreme Court of the United States or the inferior Federal Courts, by or against the State, or in which the State may be interested, except those criminal appeals otherwise prescribed by the General Assembly. (2) Investigate, commence, and prosecute or defend any civil or criminal suit or action or category of such suits or actions in any of the Federal Courts or in any Court of this State, or before administrative agencies and quasi legislative bodies, on the part of the State or in which the State may be interested, which the General Assembly by law or joint resolution, or the Governor, shall have directed or shall direct to be investigated, commenced and prosecuted or defended."

II
Discussion

There are certain State agencies that, because of their unique characteristics or distinctly local orientation, may be represented by counsel designated by the General Assembly. This is because the Attorney General is not being deprived of a duty "characteristic of" his or her office, and, for this narrow class of agencies, the General Assembly can reasonably determine that the State does not have a sufficient interest in representing the agency. See Bill Review Letter (Senate Bill 1128) from Stephen H. Sachs, Attorney General, to Harry Hughes, Governor (May 24, 1979).1

In our opinion, however, a sheriff does not fall into this category. A sheriff is a State constitutional officer [Article IV, §44 of the Maryland Constitution], subject to control of the State judicial system [Green v. State, 122 Md. 288 (1914)] as well as independently responsible for the enforcement of the criminal laws and the administration of certain correctional facilities in

1 For example, the General Assembly has established general counsel for a number of specialized State agencies. See Article 78, §12 (Public Service Commission); Article 49B, §2 (Human Relations Commission); Transportation Article, §7-209 (Mass Transit Administration); Article 40A, §2-102(i) (State Ethics Commission). It has similarly acted with respect to certain agencies having a distinctly local orientation. See, e.g., Education Article, §4-104 (County Boards of Education); Article 2B, §158 (County Liquor Boards).

a number of counties.2 And, significantly we believe, the sheriffs have been longstanding clients of the Attorney General.

For these reasons, we believe that the General Assembly cannot deprive the Attorney General of the constitutional responsibility for representing a sheriff, even in the apparently limited manner contemplated by House Bill 1685. Representation of such an officer is in the State interest and is characteristic of the duties of the Attorney General.

Nevertheless, there is a way that House Bill 1685 and §1-4 of the Public Local Laws of Cecil County may be construed and implemented so as to be constitutional and not violative of Article V, §3 of the Constitution. That is, the bill must be administered in accordance with Article 32A, §5(a) of the Maryland Code, which gives the Attorney General the power to appoint "special counsel" for a State officer or agency.

"It is unlawful for any board, commission, department, officer or institution of the State government to retain or employ or to continue the employment of any counsel or legal adviser whatever, in connection with the performance of their, its or his duties, or to be represented, in the performance of any of the duties imposed upon them, it or him, by any counsel or legal adviser whatever, other than the Attorney General, his deputies or assistants, or a special attorney or counsel appointed by the Attorney General."3

2 Thus, representation of a sheriff is vastly different from representation of the Police Commissioner of Baltimore City, who we concluded could be constitutionally represented by independent counsel. See Bill Review Letter (Senate Bill 1128) from Stephen H. Sachs, Attorney General, to Harry Hughes, Governor (May 24, 1979). The Baltimore City Police Commissioner is appointed by and answerable to the Mayor of Baltimore City, a home rule subdivision. The Police Commissioner is not a State constitutional officer with duties of a distinct and substantial interest to the State. Id.

3 See also Article 32A, §12E, which provides: "The Attorney General may employ special counsel whose compensation shall be fixed by the Attorney General and approved by the Board of Public Works, if he determines that it is impracticable or uneconomical for such legal service to be rendered by him or one of his assistants. The compensation for special counsel shall be paid out of the funds appropriated for the administration of the agency, board, commission, or department employing the officers and employees defended."

III
Conclusion

In our opinion, if the bill is administered in this fashion, by having the Attorney General authorize the employment of special counsel under Article 32A, §5(a) of the Code, the Attorney General would not be deprived of ultimate constitutional responsibility for the representation of the Sheriff of Cecil County.

Stephen H. Sachs, Attorney General
Robert A. Zarnoch, Assistant Attorney General
Avery Aisenstark
Principal Counsel, Opinions and Advice

Editor's Note: On June 1, 1982, House Bill 1685 was signed into law as Chapter 898, Laws of Maryland 1982, effective July 1, 1982. The preceding Opinion was originally written as a bill review letter; it is published here in a slightly revised format.