Can Maryland raise the pay of an election board member if the raise takes effect the same day their new term starts?

Plain-English summary

The attorney for the Garrett County Board of Supervisors of Elections asked the Attorney General to reconsider an earlier bill-review conclusion that a legislative pay raise for Board members could not take effect for members whose new terms began the same day the raise did. House Bill 1073 (1981) raised the Board members' salaries, but because Article XVI, Section 2 of the Maryland Constitution bars enacting salary-change bills as emergency measures, the bill's effective date was pushed to June 1, 1981, which happened to be the exact date the Board members' new two-year terms began. The earlier bill-review letter had concluded that Article III, Section 35, which bars increasing or decreasing a public officer's salary "during his term of office," blocked the raise for those incoming members.

On reconsideration, the opinion reversed that conclusion. It found no prior Maryland case addressing whether Section 35 applies when a salary change and a new term become effective on the exact same day, as opposed to before the term begins. Working through the purpose of Section 35 (preventing officials from pressuring the legislature for raises, and vice versa) and the plain meaning of the word "during," the opinion concluded that a raise taking effect simultaneously with, rather than after, the start of a term does not occur "during" that term, so it falls outside what Section 35 prohibits. The opinion noted this reading was consistent with a similar decision from the Tennessee Supreme Court but acknowledged the Maryland Court of Appeals had, in other contexts, applied Section 35 more broadly than its narrow underlying purpose would strictly require.

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 35 and Article XVI, Section 2 of the Maryland Constitution as construed by Maryland case law through 1982, and construed a specific 1981 pay-raise bill for the Garrett County election board. Anyone researching a current question about the timing of public officer salary changes in Maryland should verify the current constitutional text and case law, since the Court of Appeals may have addressed this precise timing question more directly since 1982.

Common questions

Why does it matter whether the raise took effect before, after, or exactly on the day a new term starts?
Because Article III, Section 35 only bars a salary change "during" an officer's term. The opinion read "during" narrowly, to mean after a term has already begun and before it ends. A raise that becomes effective on the very first day of a new term, at the same moment the term begins rather than partway through it, does not fall "during" that term under this reading, even though the same raise would clearly be barred if it took effect a day, a month, or a year after the term started.

Doesn't this create an obvious loophole where the legislature could time raises to dodge the rule?
The opinion acknowledged the underlying purpose of Section 35, preventing officials from lobbying for their own raises and preventing the legislature from pressuring officials with the promise or threat of pay changes, but found that purpose was not implicated here, since the Board members whose pay increased were not yet in office when the legislature acted on the bill. The opinion also noted the General Assembly had specifically drafted the bill to apply only to future terms, not to the sitting members, which reinforced that this was not an attempt to reward or pressure a sitting official.

Did Maryland courts have to invent a new rule to reach this result?
Not exactly, but the opinion recognized it was breaking new ground. It found no Maryland case squarely deciding what happens when a raise and a new term become effective on the identical date, only cases addressing raises effective before a term began (which Section 35 did not bar) and cases addressing raises effective after a term had already begun (which Section 35 did bar). The opinion resolved this in-between scenario by looking to the ordinary dictionary meaning of "during" and to a similar decision from Tennessee's highest court reaching the same conclusion.

Could an official manipulate when they take their oath of office to grab a new salary?
The opinion closed off that possibility. It stated that for Section 35 purposes, a term begins on the date fixed by the Constitution or other Maryland law regardless of whether the officer has actually taken the required oath, so a Board member could not delay taking their oath in order to push the start of their term later and capture a salary increase that took effect after the officially fixed start date.

Background and statutory framework

Garrett County's Board of Supervisors of Elections operates under Article 33 of the Maryland Code, and its members' two-year terms begin on the first Monday in June under Article XVII, Section 6 of the Maryland Constitution. House Bill 1073 (Chapter 416, Laws of Maryland 1981) amended Article 33, Section 2-3(a)(12) to raise the Board's salaries (from $1,300 to $1,800 for the President and from $1,300 to $1,500 for the other two members), specified that the raise would not apply to members already in office on the bill's effective date, and attempted to take effect immediately as an emergency measure upon the Governor's signature.

In an earlier bill-review letter, the Attorney General's office had flagged two problems with the bill. First, Article XVI, Section 2 of the Maryland Constitution bars enacting salary-change measures as emergency laws, so the bill's effective date had to be deferred to the following June 1 rather than its signing date, consistent with prior Attorney General opinions and a 1959 Court of Appeals decision. Second, because that deferred effective date, June 1, 1981, turned out to be the exact same day the Board's new terms began under Article XVII, Section 6, the bill-review letter had concluded that Article III, Section 35's bar on changing a public officer's salary "during his term of office" prevented the incoming Board members from receiving the raise, a conclusion reinforced by the bill's own text making it applicable to members "in office on the effective date."

On reconsideration at the Board's attorney's request, the opinion surveyed Maryland precedent construing Article III, Section 35 and found the precise question, whether the prohibition applies when a term and a salary change become effective simultaneously, had never been decided in Maryland. It reviewed the purpose the Court of Appeals had identified for Section 35, preventing officials from angling for raises and the legislature from using salary changes to pressure officials, particularly important in the election-law context given how boards of supervisors of elections can affect legislators' own interests. It also reviewed cases addressing related but distinct timing scenarios: cases holding Section 35 barred a salary change effective after a term had already begun even though the change was enacted before the term started (meaning the "evil sought to be avoided" was not literally present, yet courts still applied the bar based on the statute's effective date), and a case holding a salary decrease could apply if it took effect before a new term began.

Because none of the existing cases addressed a raise and a term becoming effective on the identical date, the opinion turned to the ordinary meaning of the word "during" in Section 35, drawing on legal and general dictionaries to conclude "during" means after a term's commencement and before its expiration, so a change effective at the exact moment a term begins cannot be said to occur "during" that term. The opinion found this reading consistent with a Tennessee Supreme Court decision reaching the same result under a similarly worded Tennessee constitutional provision, and noted that treating the raise as permissible here also aligned with the General Assembly's evident intent, since the bill expressly excluded sitting members and was written to apply only starting with the next term. The opinion closed by clarifying that, for Section 35 purposes, an officer's term begins on the date fixed by law regardless of when the officer actually takes the oath of office, foreclosing any strategy of delaying the oath to capture a later salary change.

Citations

Statutes:

• Chapter 416 (House Bill 1073), Laws of Maryland 1981
• Article 33, §2-3(a)(12) of the Maryland Code
• Article XVI, §2 of the Maryland Constitution
• Article XVII, §6 of the Maryland Constitution
• Article III, §35 of the Maryland Constitution
• Article 33, §2-1(a) of the Maryland Code
• Article 33, §2-2 of the Maryland Code

Cases:

• Allied American Co. v. Commissioners, 219 Md. 607 (1959)
• County Commissioners v. Monnett, 164 Md. 101 (1933)
• Levin v. Hewes, 118 Md. 624, 642-43 (1912)
• Comptroller v. Klein, 215 Md. 427, 434 (1958)
• Woelfel v. State of Maryland, 177 Md. 494 (1940)
• Pressman v. D'Alesandro, 211 Md. 50, 55 (1956)
• State ex rel. Lane v. Dashiel, 195 Md. 657 (1950)
• Overton County v. State, 588 S.W.2d 282 (Tenn. 1979)
• State v. Giessel, 51 N.W.2d 547 (Wis. 1952)
• Carlile v. Henderson, 31 P. 117 (Colo. 1892)

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.

Public Officers—Board of Supervisors of Elections—Salaries—Article III, §35 Does Not Bar an Increase First Effective at Same Time New Term Begins

March 8, 1982

Thomas B. Dabney, Jr., Esq.
Attorney for Board of Supervisors of Elections for Garrett County

You have requested our opinion on whether Article III, §35 of the Maryland Constitution prohibits the payment of the increased salary provided by Chapter 416 (House Bill 1073), Laws of Maryland 1981, to the members of the Garrett County Board of Supervisors of Elections, whose terms of office began June 1, 1981, the effective date of House Bill 1073.

For the reasons given below, it is our opinion that Article III, §35 does not prevent public officials from receiving increased compensation if their term of office begins after or, as here, simultaneously with the effectiveness of a pay increase.

I
Background

House Bill 1073 amended Article 33, §2-3(a)(12) of the Maryland Code to increase the salaries of the members of the Garrett County Board of Supervisors of Elections from $1,300 to $1,800 for the President and from $1,300 to $1,500 for the two other members. Section 2 of the bill provided that the bill would not apply to the salaries of members of the Garrett County Board "in office on the effective date" of the bill, but that it would apply to members' salaries beginning with the next term of office. Finally, Section 3 of the bill provided that the bill was to be an emergency measure, effective on the date of its enactment. The bill was signed into law by the Governor on May 12, 1981.

In our bill review letter of April 8, 1981, we advised the Governor of two problems with the bill.1 First, the bill could not become effective on the date of its enactment as an emergency measure, because Article XVI, §2 of the Maryland Constitution prohibits measures changing the salaries of public officers from being enacted as emergency laws. Members of the Board of Supervisors of Elections are public officers. See 58 Opinions of the Attorney General 285 and 343 (1973). As a result, we advised that the effective date of the bill must be deferred to the June 1 following its enactment, i.e., June 1, 1981. See Allied American Co. v. Commissioners, 219 Md. 607 (1959); 22 Opinions of the Attorney General 230 (1937). We reaffirm this advice as to the effective date of House Bill 1073.

Second, we concluded that, because the next term of office of members of the Board began on June 1, 1981, the first Monday of June [Article XVII, §6], and because House Bill 1073 also became effective on June 1, 1981 [Article XVI, §2], Article III, §35 of the Constitution prohibited the Board members serving those new terms from benefiting from the increase in salary. We also determined that the language of Section 2 of the bill, which made it applicable to members of the Board in office on its effective date, necessitated the same conclusion. You have asked us to reconsider this second conclusion.2

II
Article III, §35

Article III, §35 of the Maryland Constitution provides, in pertinent part:

"[T]he salary or compensation of any public officer [may not] be increased or diminished during his term of office except those whose full term in office is fixed by law in excess of 4 years."

Because the members of the Garrett County Board of Supervisors of Elections are public officers appointed to two-year terms, they are generally subject to this provision. See 58 Opinions of the Attorney General 285 and 342 (1973); Article 33, §2-1(a) of the Maryland Code. However, although Article III, §35 has been the subject of numerous opinions of both the Attorney General and the Court of Appeals, the precise question presented here, whether the section prohibits a salary increase for officers whose terms commence simultaneously with the effective date of the law providing for the increase, has not been addressed in Maryland.3

Article III, §35 is based on an important public policy:

"to prevent a public officer from using his office for the purpose of putting pressure upon the General Assembly or other authorized agency to award him additional compensation and, on the other hand, to prevent the General Assembly or other agency from putting pressure on a public officer by offering him increased compensation or threatening a decrease thereof". Comptroller v. Klein, 215 Md. 427, 434 (1958).

See also 65 Opinions of the Attorney General 373 (1980); 60 Opinions of the Attorney General 823, 824 (1975). This policy is particularly important in the area of election laws, where the actions of boards of supervisors of elections can directly affect members of the General Assembly.

In considering whether a particular salary increase or decrease may be effected constitutionally in accordance with these purposes, the Maryland Court of Appeals and this Office have recognized that the time of legislative consideration of the salary change is critical. For example, in Comptroller v. Klein, 215 Md. 427 (1958), the Court examined the meaning of the constitutional phrase "his term of office" and concluded:

"The phrase means the incumbent in office at the time the legislature or other appropriate agency acts upon the proposal to increase or decrease the emoluments of that particular office." 215 Md. at 433 (emphasis added).

The Court held that a public officer, appointed to fill out an unexpired term, could receive an increase in salary that had been provided for after the appointment of his predecessor but before his own appointment. Considering the balance of §35, the Court stated:

"[The first clause of §35] tends to show that the entire sentence was to deal with the individual who held the office at the time the question arose." 215 Md. at 434 (emphasis added).

In 60 Opinions of the Attorney General 823 (1975), this Office concluded that the General Assembly could provide a public officer with automatic cost-of-living increases, resulting in an increase during the officer's term, provided that the raises were set according to certain objective criteria. The Opinion noted that, if such increases were fixed prior to the commencement of the officer's term, they afforded no opportunity for "logrolling" and, therefore, the "purpose of Article III, §35 is fully and effectively preserved". 60 Opinions of the Attorney General at 832. See also 58 Opinions of the Attorney General 130, 134 (1973), which refers to the time when the legislature "acted to increase the compensation".

III
Analysis

As the Court noted in Comptroller v. Klein, "the evil sought to be avoided [by §35] is applicable only with respect to the incumbents then in office". 215 Md. at 434 (emphasis added). If we were to consider this purpose alone, we might easily conclude that "the evil sought to be avoided" has no application to the members of the Board of Supervisors of Elections, whose terms of office began after the legislature had considered and acted on the proposed salary increase. Such a conclusion is reinforced by the unique circumstances here: the General Assembly expressly intended House Bill 1073 to be enacted as an emergency measure and, as such, take effect before June 1; in addition, the General Assembly specifically provided that the bill should not apply to board members "in office on the effective date of this Act" and, further, that the bill should "take effect at the beginning of the next following term of office".4 The General Assembly thus obviously contemplated that the new law would take effect before June and, thus, could and would apply to the Board members appointed to terms commencing in June.

However, the authorities that have applied Article III, §35 have looked specifically to the actual effective date of the statute as the time for determining its applicability. For example, in Woelfel v. State of Maryland, 177 Md. 494 (1940), the Court held that a bill reducing the salary of justices of the peace, which became effective on June 1, 1939, would not apply to a justice of the peace appointed to a two-year term beginning May 1, 1939. The public official was not in office at the time the legislature considered the bill and, thus, the evil sought to be avoided by Article III, §35 was never an issue; nevertheless, the Court applied §35. Similarly, in 64 Opinions of the Attorney General 267 (1979), this Office determined that public officers whose terms began June 1, 1976, could not be paid an increased salary under a statute that became effective on July 1, 1976.5

In each of these instances, the legislature had "considered" and "acted upon" the change in compensation before the term of office began, but it was the statute's effective date that was held to control the application of the constitutional prohibition. However, even though the scope of §35's prohibition is thus somewhat wider in these instances then the "evil sought to be avoided", that does not answer our specific inquiry: whether the prohibition applies when a term of office begins not before but simultaneously with the effective date of the statute enacting the salary change.

We have found no Maryland case that addresses this precise question. The Court of Appeals has stated that Article III, §35 is to be "interpreted broadly to promote its policy". See e.g., Pressman v. D'Alesandro, 211 Md. 50, 55 (1956); State ex rel. Lane v. Dashiel, 195 Md. 657 (1950). To construe §35 as applying to an officer whose term of office begins simultaneously with the effective date of a statute changing his or her salary would be to interpret the section "broadly", but would not, in our view, "promote [the] policy" underlying §35.

The Supreme Court of Tennessee apparently reached the same conclusion in Overton County v. State, 588 S.W.2d 282 (Tenn. 1979). Article VI, §7 of the Tennessee Constitution provides that judges' compensation "shall not be increased or diminished during the time for which they are elected". The act in question increased judges' salaries, linking the increase to the consumer price index. The act took effect September 1, 1974, the date a judge's term began. The court held the new salary applicable to the judge, apparently on the basis that the legislative action had not been taken "during the time for which [the judge] was elected", but, instead, had preceded his term. The Tennessee court thus concluded, in effect, that the "evil sought to be avoided" by a limitation on compensation changes is not present when an officer's term and a legislative act providing for a salary change are simultaneously effective.6

Construing Article III, §35 otherwise would also, we believe, be beyond the language of the section. Section 35 prohibits a salary change for any public officer "during his term of office" (emphasis added). The Court of Appeals has directed that the "natural and logical interpretation of the wording of the Constitution" shall govern an interpretation of §35. Comptroller v. Klein, 215 Md. at 432.7 The term "during" is defined as "throughout the course of", "after the commencement and before the expiration", "in the time of". Black's Law Dictionary 453 (rev. 5th ed. 1979); Webster's New International Dictionary 801 (2d ed. 1953). When a law changing an officer's compensation is effective simultaneously with the commencement of his or her term, the salary change cannot be said to have occurred "in the time of" or "after the commencement and before the expiration" of the officer's term.

Thus, in our view, the application of §35 to this situation not only fails to further the policy underlying §35 but, also, is not supported by the very language of the section.8

IV
Conclusion

In summary, it is our opinion that Article III, §35 does not prohibit the members of the Garrett County Board of Supervisors of Elections, whose terms began simultaneously with the effective date of a salary increase, from receiving that increase.

Stephen H. Sachs, Attorney General
Mary N. Humphries, Assistant Attorney General
Avery Aisenstark
Principal Counsel,
Opinions and Advice

1 Bill Review Letter (House Bill 1073) from Stephen H. Sachs, Attorney General, to Harry R. Hughes, Governor (April 8, 1981).

2 Because bill review letters, unlike Opinions of the Attorney General, are prepared under severe time restraints, we are not reluctant to reconsider them when appropriate and given the opportunity.

3 County Commissioners v. Monnett, 164 Md. 101 (1933), involved a similar set of circumstances, but the Court of Appeals found it unnecessary to address this question. An act decreasing the salary of the Calvert County Treasurer and providing for his term to begin June 1 was passed as an emergency law, effective April 6, 1931. The trial court held that Article XVI, §2 of the Constitution prohibited the act from being enacted as an emergency measure and that the act therefore was effective June 1, 1931, thus making the salary change effective simultaneously with the beginning of the new term. However, the treasurer had already been elected and taken his oath of office in 1930 pursuant to the then applicable law. The trial court concluded that the treasurer's term had therefore begun before the act was effective. The Court of Appeals, while not determining whether the act was effective April 6 or June 1, agreed that the treasurer had commenced his term before the act was effective. The Court stated, at 106-07:

"[W]hatever the effect of the section of the Act of 1931 fixing the beginning of the treasurer's term at June 1st may be on the holding of this incumbent, that provision could not alter the fact that his term of office had begun previously. . . . [W]e conclude that he was serving the same term after as well as before June 1st."

Consequently, Article III, §35 prohibited the act from applying to the treasurer and decreasing his salary during his term.

In Levin v. Hewes, 118 Md. 624, 642-43 (1912), the Court of Appeals held that the General Assembly could act to decrease a magistrate's compensation between the time of his appointment and the commencement of his term. The act decreasing salaries became effective May 2; the magistrate qualified for office before May 2, but the Constitution provided for his term to commence the first Monday in May, which was May 6. Consequently, Article III, §35 was not violated by the salary change.

4 Section 2 of House Bill 1073 provides:

"[T]his Act may not be construed to extend or apply to the salary of the president and each member of the Garrett County Election Board in office on the effective date of this Act, but the provisions of this Act concerning the salary of the president and each member of the Garrett County Election Board shall take effect at the beginning of the next following term of office."

5 See also Levin v. Hewes, 118 Md. 624 (1912), discussed in note 3 above, where a salary decrease became effective four days before a term began.

6 In State v. Giessel, 51 N.W.2d 547 (Wis. 1952), the Supreme Court of Wisconsin examined whether Article IV, §26 of the Wisconsin Constitution ("nor shall the compensation of any public officer be increased or diminished during his term of office") was violated by a statute that both altered salaries of officials and provided that current officers' terms ended on the effective date of the Act, May 1, 1951. No date was provided for the commencement of new terms; thus salary changes and new terms were not simultaneously effective. The court found the statute constitutional.

In Carlile v. Henderson, 31 P. 117 (Colo. 1892), the Supreme Court of Colorado held that a statute increasing the State Treasurer's salary, effective 11 a.m., January 13, 1891, could not apply to a state treasurer elected in November 1890, when the Constitution provided that his term of office began the second Tuesday of January, which was January 13, 1891. The court decided the case not on Article 4, §19 of the Colorado Constitution (salary "shall not be increased or diminished during their official terms"), but on Article 5, §30 ("no law shall extend the term of any public officer, or increase or diminish his salary or emoluments, after his election or appointment").

7 As indicated by the discussion above, in Comptroller v. Klein, the Court construed the phrase "his term of office" to mean the incumbent's period in office; the Court did not discuss the word "during".

8 For the purposes of §35, terms of officers begin on the date provided by the Constitution or other Maryland law, whether or not the officer has taken any required oath of office. Otherwise an officer could delay taking the required oath and thus delay commencement of his or her term in order to benefit from a new salary effective after the date that term was to commence. Consequently, whether or not the members of the Board of Supervisors of Elections of Garrett County had taken the oaths required by Article 33, §2-2 by June 1 is not determinative of when their terms of office began for the purposes of §35.