Could a Maryland circuit court clerk who lost re-election still get paid for the days they legally had to stay in office until their successor took over?

Plain-English summary

The Chief Deputy Comptroller asked the Attorney General whether a Clerk of the Circuit Court who lost a re-election bid, but under Article IV, §25 of the Maryland Constitution remained legally obligated to keep working until her successor qualified, was barred by Article III, §35 from being paid for days served after her four-year term technically ended. The specific case involved the Clerk of the Circuit Court for Caroline County, who continued performing her duties for about a week in December 1982 after the November election, because her successor did not take the oath of office until December 8, and paid herself for those days at her existing daily rate. The opinion concluded that Article III, §35's bar on "extra compensation" or a mid-term salary "increase" did not reach this situation, because the Board of Public Works had set the Clerk's compensation as an annual salary rate rather than a fixed lump sum for a four-year term, and the Clerk was simply paid at that unchanged rate for however long she actually served, whether that period ran slightly more or less than four calendar years. The opinion found this result consistent with the purpose of Article III, §35, which was to prevent officials from pressuring the legislature for pay increases or being pressured with pay threats, neither of which was implicated when a clerk was paid her already-fixed rate for time she was constitutionally compelled to serve.

Currency note

This opinion was issued in 1983. 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, §35 and Article IV, §25 of the Maryland Constitution as they read in 1983, along with the Clerk salary-setting statute then codified at CJ §2-504. Maryland's constitutional salary-restriction provisions, circuit court clerk compensation statutes, and the holdover doctrine's application to other public offices may have been amended or further clarified by courts since 1983; verify the current versions of these provisions before relying on any specific compensation rule described here.

Common questions

If a Maryland clerk of court lost an election but had to keep working past the end of their term until the new clerk was sworn in, did they get paid for that extra time?
Yes, according to this opinion. It concluded that the outgoing clerk was entitled to be paid at her existing annual salary rate, calculated on a daily basis, for every day she actually served while holding over, because Article III, §35's ban on "extra compensation" applied to changes in the rate of pay, not to paying an unchanged rate for a period that happened to run past four calendar years.

Why wasn't paying a clerk for holdover days considered a prohibited salary "increase" under the Maryland Constitution?
The opinion reasoned that the Board of Public Works had established the clerk's compensation as an annual salary rate, not as a single fixed sum capped at four years' worth of pay, so continuing to pay the same rate for additional days served did not change the rate at all. The opinion found no "increase" so long as the clerk kept calculating her pay using the same annual figure the Board had set.

Could the outgoing clerk have simply refused to keep working once her term technically ended?
The opinion suggested that would have been an unacceptable choice, since Article IV, §25 both entitled and obligated the clerk to remain in office until her successor qualified, and reading Article III, §35 to deny her pay for that mandatory holdover period would have forced clerks in her position to choose between working unpaid or resigning and creating exactly the gap in office that the holdover doctrine exists to prevent.

Background and statutory framework

Article IV, §25 of the Maryland Constitution provided that a Clerk of the Circuit Court "shall hold his office for four years from the time of his election, and until his successor is elected and qualified," a holdover rule the opinion noted the Court of Appeals had already recognized as a general principle of Maryland law for public offices in Reed v. President and Commissioners, even apart from any specific statutory holdover text. Because the incoming clerk in this case did not take his oath of office until December 8, 1982, more than a month after the November election, the outgoing clerk, Mrs. Butler, remained obligated to serve, and did so, through that date.

The compensation dispute centered on Article III, §35, which barred "extra compensation" granted after service was rendered and barred any "increase" or decrease in "the salary or compensation of any public officer . . . during his term of office" for terms of four years or less. The opinion found that CJ §2-504 required the Board of Public Works to set clerks' pay as an "annual salary," which the Board had done, establishing $25,000 per year for the Caroline County Clerk in November 1978, and that Mrs. Butler continued calculating and paying herself at that same annual rate, prorated to a daily figure, for the days she served into December 1982. Because the rate itself never changed, only the length of time compensated at that rate, the opinion concluded no "increase" or "extra compensation" occurred, drawing on the Comptroller's office's own prior advice to Maryland's clerks (a May 1982 letter from Assistant Attorney General Bonnie A. Travieso) recognizing that a clerk's actual time in office is not always exactly four years. The opinion further supported its conclusion by reference to Article III, §35's underlying purpose, described in Comptroller v. Klein as preventing officials from pressuring the legislature for raises or being pressured by threatened pay cuts, a concern simply not present when a clerk is paid an unchanged, pre-set rate for time she was constitutionally required to serve, and by common-law authority, including Periconi v. State, holding that the incident of salary attaches to a public office for as long as its holder actually holds it.

Citations

Statutes:

• Md. Const. art. III, §35 (bar on extra compensation or mid-term salary changes for public officers)
• Md. Const. art. IV, §25 (Clerk of the Circuit Court holdover in office until successor qualifies)
• Md. Const. art. I, §§9, 10, and 11 (oath of office and qualification requirements)
• CJ §2-504 (Board of Public Works sets Clerk of the Circuit Court annual salary)
• CJ §§2-104, 2-105, and 2-106 (referenced alongside oath and qualification provisions)

Cases:

• Reed v. President and Commissioners, 226 Md. 229 (1961)
• Benson v. Mellon, 152 Md. 481, 491 (1927)
• Periconi v. State, 398 N.Y.S.2d 959, 963 (N.Y. Ct. Cl. 1977)
• Thomas v. Owens, 4 Md. 189 (1853)
• Comptroller v. Klein, 215 Md. 427, 434 (1958)

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/1983/Volume68_1983.pdf

Original opinion text

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

Public Officers—Clerks of Court—Term—Compensation—"Hold Over"—Circuit Court Clerk Entitled to Continued Compensation for Time Served as Hold Over.

April 7, 1983

Mr. J. Basil Wisner
Chief Deputy Comptroller

You have requested our opinion on whether a Clerk of the Circuit Court, who has been defeated in the General Election but continues to hold office until his or her successor qualifies, is precluded by Article III, §35 of the Maryland Constitution from receiving compensation for days served in excess of four calendar years.

For the reasons given below, it is our opinion that Article III, §35 does not prohibit a Clerk of the Circuit Court from continuing to receive compensation during the period for which the Clerk "holds over" in office pending qualification of his or her successor.

I
Background

The circumstances giving rise to this question can be summarized as follows. As a result of the November 2, 1982, election, Mr. F. Dale Minner was elected Clerk of the Circuit Court for Caroline County; he replaced Mrs. Mildred C. Butler, who had held that office from October 11, 1965. Mrs. Butler had last been elected on November 7, 1978; her last commission, dated December 1, 1978, was for "four years from November 7, 1978 or until duly discharged therefrom".

Mr. Minner did not take the oath of office as Clerk of the Circuit Court for Caroline County until December 8, 1982, for reasons not relevant to this inquiry. Despite the fact that Mrs. Butler had made vacation plans for the first week of December, she was advised that it was her duty to remain in office until her successor qualified. Consequently, she attended to the duties of the office until Mr. Minner was sworn in.

II
Term of Office

Article IV, §25 of the Maryland Constitution provides that the Clerk of the Circuit Court "shall hold his office for four years from the time of his election, and until his successor is elected and qualified". Pursuant to this mandate, Mrs. Butler was entitled, and, indeed, had an obligation, to hold her office for four years from the date of her election, November 7, 1978, and until her successor was elected and qualified.1 Although Mr. Minner was elected on November 2, 1982, he did not qualify for or, therefore, assume the office until he took the oath of office on December 8, 1982. See Article I, §§9, 10, and 11 of the Maryland Constitution. See also §§2-104, 2-105, and 2-106 of the Courts and Judicial Proceedings Article ("CJ" Article).

The Court of Appeals has held that an elected or appointed officer may remain in office at the expiration of his or her term, and is entitled to exercise the powers of the office, until a successor qualifies, whether or not the statute creating the office so provides. Reed v. President and Commissioners, 226 Md. 229 (1961). Here, the Constitution itself expressly provides for the Clerk to remain in office until a successor qualifies.

1 This result is also reflected in her last commission. As noted above, it called for her to assume office for a term of four years from November 7, 1978, "or until duly discharged" from office.

III
Compensation

The compensation of the Clerk of the Circuit Court is determined in accordance with CJ §2-504. This section provides, in relevant part, that "[t]he clerk of each circuit court shall receive an annual salary of not less than $10,000 or more than $37,500 as set by the Board of Public Works on the basis of the relative volume of business and receipts in his office". Pursuant to this provision, on November 9, 1978, the Board of Public Works established an annual salary for the Clerk of the Circuit Court for Caroline County of $25,000, to begin at the start of the new term of the Clerk elected November 7, 1978.2

2 We note that, on this and similar occasions, the Board of Public Works first decided on the new annual salary after Election Day, after the day on which, under Article IV, §25, a new term technically begins. We have not been asked to address, and, therefore, do not now address, whether this practice might be in contravention of Article III, §35.

Accordingly, after she was sworn in on December 1, 1978, for the new term to which she was elected, Mrs. Butler began paying herself at the annual rate of $25,000. Pursuant to directives from the Office of the Comptroller, Mrs. Butler: (i) first calculated her semi-monthly salary by dividing $25,000 by 24; and (ii) then issued checks to herself for the resultant amount on the 15th and the last day of every month. Mrs. Butler paid herself her last semi-monthly check on the last day of November, 1982.

For the next few days, Mrs. Butler paid herself on a daily basis, because she knew she would not be serving as Clerk for the entire next pay period (up to and including December 15, 1982). For this purpose, Mrs. Butler: (i) calculated her daily rate by dividing her semi-monthly pay by 11 (the number of working days during the first pay period in December of 1982); and (ii) paid herself this amount for each of the six days she actually worked during that pay period (December 1, December 2, December 3, December 6, December 7, and December 8). The sum of these payments equalled $346.44.3

3 Although we have not been asked to address whether this was the proper method of calculating her daily pay rate, we note that it conforms with one of the two methods for such calculations that are set forth in a June 21, 1966, directive from your office to all Clerks of Court and Registers of Wills.

IV
Constitutional Restrictions on Salary

Article III, §35 of the Maryland Constitution provides, in relevant part, as follows: "Extra compensation may not be granted or allowed by the General Assembly to any public Officer, Agent, Servant or Contractor, after the service has been rendered, or the contract entered into; nor may the salary or compensation of any public officer be increased or diminished during his term of office except those whose full term of office is fixed by law in excess of 4 years."

It is your position that Mrs. Butler should reimburse the Office of the Clerk of the Circuit Court for Caroline County for the payments she made to herself in December of 1982. You first note that, as of November 30, 1982, Mrs. Butler already had received a total of $100,000 (i.e., 4 times the $25,000 annual salary established by the Board of Public Works). You then argue that any amount paid for the days served after November 30, 1982, constitute "extra compensation" or an interim salary "increase" in contravention of Article III, §35.

Under this view, of course, any delay of a newly-elected Clerk in qualifying for office would leave the incumbent with but two, equally untenable, choices: (i) continue to serve without pay, however long (days or, conceivably, even months) the delay might be; or (ii) resign from office, creating the very interruption in office that the hold-over doctrine was designed to prevent. See Benson v. Mellon, 152 Md. 481, 491 (1927). We do not believe that this inequitable result is countenanced, let alone mandated, by Article III, §35.

The December 1982 payments to Mrs. Butler do not constitute either "extra compensation" or an "increase" in compensation. CJ §2-504 requires that, in establishing the salaries of the Clerks of the Circuit Courts, the Board of Public Works set an annual salary. And that is exactly what the Board does, no more and no less. Specifically, the Board does not set a single figure as the maximum salary for an entire term. Thus, in November of 1978, the Board of Public Works did not set, or purport to set, the compensation for the Clerk of the Circuit Court for Caroline County at a maximum of $100,000 for the entire ensuing term of office. Rather, the Board simply set the compensation at $25,000 per year, as mandated by statute.

In our view, the establishment of such an annual salary sets a rate of compensation. Subject to that rate, an individual Clerk may, and should, be paid for whatever period of time he or she serves in office, whether that period is in fact greater or less than four calendar years.

Recently, the clerks were specifically advised by their then counsel that the "period of time during which a clerk is entitled to compensation is not, except coincidentally, exactly four years". Rather, because an incumbent clerk continues to hold office until his or her successor qualifies, "it is possible that a clerk elected for one term may actually perform the duties of his office for a period of time more or less than four years." Letter of Advice from Bonnie A. Travieso, Assistant Attorney General, to Howard M. Smith, Clerk of the Circuit Court for Montgomery County (May 21, 1982).

We fully concur with that advice. In our opinion, the Board of Public Works' action in settling an annual salary for a Clerk must be viewed as the setting of a rate of compensation to be paid to the Clerk for the full amount of time that he or she actually serves in office. And, under Article III, §35, it is only that rate that may not be increased or decreased during a Clerk's term of office.

Here, Mrs. Butler's rate of compensation did not change: After November 30, 1982, she continued to pay herself at the annual rate of $25,000, albeit calculated on a daily basis. The payments she received for the days she served were not extra compensation or increased compensation within the meaning of Article III, §35 of the Maryland Constitution.4

4 In contrast, had Mrs. Butler calculated her daily rate of compensation on the basis of an annual salary of $32,500, which had been established by the Board of Public Works on December 1, 1982, for the term of the then newly-elected Clerk of the Circuit Court for Caroline County, she would have received an increase in salary in contravention of Article III, §35. This, however, she did not do.

More generally even, as a public officer for whom compensation is provided by law, Mrs. Butler was clearly entitled to compensation for all of the time during which she held over. At common law, "the holder [of a public office] is entitled to his salary as an incident of the office as long as he holds it". Periconi v. State, 398 N.Y.S.2d 959, 963 (N.Y. Ct. Cl. 1977). See also 63 Am. Jur.2d Public Officers §§361, 363 (1972).

Conversely, we might add, Mrs. Butler's successor was not entitled to begin receiving his salary until he qualified by posting bond and taking his oath of office, and, then, only for the time actually served in office after so qualifying. Thomas v. Owens, 4 Md. 189 (1853).

This conclusion, that Mrs. Butler may be compensated for the days she worked in December of 1982, in no way does violence to the purposes of Article III, §35. That section of the Constitution of Maryland "was intended 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 64 Opinions of the Attorney General 267 (1979).

Mrs. Butler's rate of compensation was established as an annual salary in November of 1978. The rate did not change; she merely continued to be compensated at the pre-established rate until her successor qualified. Therefore, the evil sought to be avoided by this Constitutional provision, the potential for political pressure if the salary were subject to change, simply was not present. Thus, application of Article III, §35 to this situation does not further its underlying purposes.

V
Conclusion

In summary, it is our opinion that Article III, §35 of the Maryland Constitution does not prohibit a Clerk of the Circuit Court from continuing to receive compensation during the period for which he or she "holds over" in office pending qualification of his or her successor. Therefore, Mrs. Butler is entitled to keep the money she paid herself during December of 1982.

Stephen H. Sachs, Attorney General
Catherine M. Shultz, Assistant Attorney General
Avery Aisenstark
Chief Counsel
Opinions and Advice