Can Maryland raise the salary of a sitting liquor board official in the middle of their term by moving them to a newly created position?

Plain-English summary

Governor Hughes asked the Attorney General to review House Bill 653, which would replace Frederick County's single liquor license commissioner and inspector with a new three-member Board of License Commissioners, raise the salaries attached to those positions, and appoint the sitting commissioner and inspector to the newly created seats. The question was whether Article III, §35 of the Maryland Constitution, which bars pay increases to a public officer during their term, blocked the pay raise for officials who were simply being moved into new positions rather than staying in their old ones.

The Attorney General concluded the bill could be signed, but that the pay raises for the incumbent commissioner and inspector could not take effect until their current four-year terms expired in 1987, because Article III, §35 applied regardless of whether the raise came through a nominally "new" position. The opinion also rejected a 1976 opinion that had approved a similar appointment-shuffling arrangement, aligning instead with a 1977 circuit court ruling that had found such maneuvers unconstitutional. Separately, the opinion held that a provision letting the Senate or the local legislative delegation control the Governor's power to remove the liquor inspector could never take effect, because the Governor's removal power cannot be conditioned or delegated away.

Currency note

This opinion was issued in 1985. 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.

Common questions

Could Maryland get around the ban on mid-term pay raises by moving an official into a newly created position with a higher salary?
No, according to this opinion. The Attorney General concluded that the Frederick County liquor commissioner and inspector, both public officers serving four-year terms, remained subject to Article III, §35's bar on in-term pay increases even when the bill nominally created new board seats for them to move into.

Did the Attorney General's office always take this position on appointment reshuffling to avoid the pay-raise ban?
No. The opinion expressly overruled a 1976 opinion of the same office that had approved a similar arrangement involving the Workmen's Compensation Commission, and instead adopted the reasoning of a 1977 Anne Arundel County circuit court decision, Jacques v. Mandel, that had found that kind of reshuffling unconstitutional.

Could the legislature give the State Senate or a local delegation a say over whether the Governor could remove the liquor inspector?
No. The opinion held that this part of House Bill 653 could not constitutionally take effect, because the Governor's removal power under Article III, §15 cannot be conditioned on the advice and consent of the Senate or a legislative delegation.

Background and statutory framework

House Bill 653 would have taken effect July 1, 1985, repealing the existing laws on the Frederick County alcoholic beverages license commissioner and inspector and creating a new three-member Board of License Commissioners, while raising the chairperson's salary to $5,000 and the two inspectors' salaries to $17,000 annually, up from $3,600 and $14,500 respectively. The bill directed the Governor to appoint the incumbent commissioner and inspector to the newly created positions.

The opinion identified both the commissioner and the inspector as public officers under Duncan v. Koustenis, 260 Md. 98, 105 (1970), and Nesbitt v. Fallon, 203 Md. 534 (1954), meaning Article III, §35's bar on in-term pay increases applied to each of their four-year terms. The opinion traced a 1976 opinion of the office (61 Opinions of the Attorney General 229) that had approved a similar reappointment arrangement for the Workmen's Compensation Commission, but noted that a 1977 Anne Arundel County circuit court decision, Jacques v. Mandel, Equity No. 23,525, had struck down that arrangement, and the opinion formally adopted the circuit court's reasoning over the office's own earlier position, citing Comptroller v. Klein, 215 Md. 427, 436 (1958), for the purpose behind Article III, §35: preventing officers from using their offices to pressure the legislature for raises, and preventing the legislature from using pay as leverage over officers. Because the bill could still be administered constitutionally by delaying the pay increase until 1987, the opinion found no obstacle to signing it. On removal, the opinion cited Article III, §15 and a 1938 opinion of the office (23 Opinions of the Attorney General 254) for the settled rule that the Governor's constitutional removal power cannot be conditioned on legislative consent, so the bill's attempt to require Senate or delegation approval for removing the inspector, under Article 2B, §149(D)(4), could not be given effect.

Citations

Statutes:

• Article III, §35 of the Maryland Constitution (bar on in-term pay increases for public officers)
• Article III, §15 of the Maryland Constitution (Governor's removal power)
• Article 2B, §149(D)(4) (Senate/delegation consent provision for removing the liquor inspector)
• House Bill 653 (1985 session)
• Chapter 764, Laws of Maryland 1985 (House Bill 653 as enacted)

Cases:

• Duncan v. Koustenis, 260 Md. 98, 105 (1970)
• Nesbitt v. Fallon, 203 Md. 534 (1954)
• Comptroller v. Klein, 215 Md. 427, 436 (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/1985/Volume70_1985.pdf

Original opinion text

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

PUBLIC OFFICERS

Alcoholic Beverages—Salaries—Removal Power—Art III, §35 Bars in-term Pay Increases to Incumbents who Switch Positions at Liquor Board.

May 24, 1985

The Honorable Harry Hughes
Governor

We have reviewed House Bill 653 for constitutionality and legal sufficiency. We have concluded that, although the bill may be signed into law, (i) one portion of it may not be given immediate effect because of the provisions of Article III, §35 of the Maryland Constitution; and (ii) another provision may not constitutionally be given effect at all.

I
Summary of Bill

Effective July 1, 1985, House Bill 653 would repeal the laws concerning the alcoholic beverages license commissioner and inspector in Frederick County and create a new 3-member Board of License Commissioners in Frederick County. The bill would also recreate two inspector provisions.

Under existing law, the license commissioner and inspector are appointed for four year terms. The present terms expire in 1987. Currently, the commissioner receives $3,600 per year (§155(1)) and the inspector receives $14,500 per year (§149(b)). The bill would maintain the same salary for two of the members of the board, but would provide for $5,000 annually for the chairperson, who is to be elected by the board. The annual salary of the two inspectors would be increased to $17,000. Pursuant to Sections 3 and 4 of the bill, the Governor must appoint the incumbent commissioner and inspector to the newly created positions.

II
Application of Article III, §35

The license commissioner and the inspector are both public officers. See Duncan v. Koustenis, 260 Md. 98, 105 (1970); Nesbitt v. Fallon, 203 Md. 534 (1954); 61 Opinions of the Attorney General 151, 153-54 (1979); 58 Opinions of the Attorney General 3, 9 (1973). Therefore, because each of them serve a four year term, they are barred by Article III, §35 from receiving a pay increase during the term.

An issue similar to the one raised by House Bill 653 arose in 1976 when certain members of the Workmen's Compensation Commission resigned from office and were reappointed by the Governor to fill the resulting "vacancies". The then-Attorney General concluded that this arrangement was not prohibited by Article III, §35. 61 Opinions of the Attorney General 229 (1976).

However, a lawsuit was filed challenging the pay hikes and, on October 6, 1977, the Circuit Court for Anne Arundel County ruled that Article III, §35 applied to the reappointed members and therefore the officers in question were not entitled to increased compensation. Jacques v. Mandel, Equity No. 23,525. We believe that the Jacques decision reached the correct result and now reject the contrary view of the constitutionality of appointment shuffling to avoid the strictures of Article III, §35 articulated in 61 Opinions of the Attorney General 229.

Thus, we believe that Article III, §35 prevents the incumbent commissioner (should he be named chairman) and the incumbent inspector from accepting the increased compensation provided for in House Bill 653 until May 1, 1987. To conclude otherwise would only condone possible circumvention of the purpose of Article III, §35, that is, to prevent a public officer from using his office to pressure the General Assembly to grant increased compensation and to preclude the General Assembly from coercing a public officer by offering him increased compensation or threatening a decrease in pay. See Comptroller v. Klein, 215 Md. 427, 436 (1958). This prophylactic tenor of Article III, §35 must be given effect even here, where there is no reason for suspecting the General Assembly or the officers in question of inappropriate motives.

Because the bill can be administered in a constitutional fashion, viz, by local officials delaying payment of any increase until the time the incumbents' current term will, but for this bill, have expired, there is no impediment under Article III, §35 to signing the bill.

III
Removal Power

In addition, we note that the bill attempts to condition the Governor's power to remove an alcoholic beverage inspector upon the advice and consent of the Senate or, if there is no resident Senator, the members of the Frederick County Delegation of the General Assembly. Article 2B, §149(D)(4). However, it is long settled that the Governor's removal power may not be so conditioned or delegated. Article III, §15 of the Constitution; 23 Opinions of the Attorney General 254 (1938). Accordingly, should the occasion for removal ever arise, this provision of the bill may not constitutionally be given effect. Thus, the power to remove will remain entirely with the Governor.

Stephen H. Sachs, Attorney General
Linda H. Lamone, Assistant Attorney General

Avery Aisenstark
Chief Counsel
Opinions and Advice

Editor's Note: On May 25, 1985, House Bill 653 was signed into law as Chapter 764, Laws of Maryland 1985, effective July 1, 1985. The preceding opinion was originally written as a bill review letter. However, in order to record the overruling of 61 Opinions of the Attorney General 229 (1976), the letter is published here in a slightly revised format.