Could a Maryland charter county hire a private company to run its jail and hold custody of inmates, instead of using its own sheriff or county employees?

Plain-English summary

Talbot County's attorney asked whether the county, which operates under a home-rule charter, could legally contract with a private company to take custody of inmates held in the county detention facility. At common law, that job belonged to the sheriff, but Maryland statute already let charter counties appoint a jailor or warden instead, and the county wanted to know if it could go a step further and outsource day-to-day custody to a private contractor.

The Attorney General concluded that Talbot County did have that authority. The county's Express Powers Act grant to "establish, maintain, regulate and control county jails" was broad enough to include the choice of using a contractor rather than county employees, and no state law reserved that specific choice exclusively to the General Assembly, even though the legislature had separately authorized the state Commissioner of Correction to use private contractors in various specific contexts. The opinion cautioned, though, that the county could not use a contract to give up its underlying police-power responsibility for the jail: it had to retain meaningful control, make sure state correctional standards and staff training requirements still applied, and follow its own charter's procedures for approving the contract.

Currency note

This opinion was issued in 1986. 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

Did a Maryland charter county need special legislative permission to contract out custody of its jail inmates to a private company?
No, according to this opinion. The Attorney General concluded Talbot County's general Express Powers Act authority to establish, maintain, and control county jails was broad enough to include contracting with a private entity, without needing a specific additional statute authorizing that choice.

Could a Maryland county completely wash its hands of jail operations by handing everything over to a private contractor?
No. The opinion concluded that operating a jail is an exercise of the police power that cannot be delegated away entirely; the county had to retain meaningful control over the facility's operation even while using a private contractor for day-to-day custody.

Did state correctional standards and staff training rules still apply if a private contractor was running the county jail?
Yes, according to the opinion. It concluded that state standards for local correctional facilities administered by the Maryland Commission on Correction Standards, and training requirements enforced by the Correctional Training Commission, would still apply as a matter of law to a facility operated under a contract with a private entity.

Background and statutory framework

Maryland statute assigned custody and care of prisoners to the sheriff at common law, later codified in Article 87, §§45 and 46, but Article 87, §48 let charter counties instead appoint a jailor or warden by ordinance. Talbot County's broader authority came from Article 25A of the Code, the Express Powers Act, whose §5(C) gave charter counties power "to establish, maintain, regulate and control county jails" and whose §5(S) added a general grant to pass ordinances "as may be deemed expedient in maintaining the peace, good government, health and welfare of the county," so long as those ordinances did not conflict with state law or intrude on a field the legislature had preempted.

The opinion applied Maryland's concurrent-powers and preemption framework, under which a charter county may legislate on a subject the state also regulates unless the state has expressly claimed exclusive authority or acted with such a "patterned approach" that exclusive intent can be inferred. Surveying statutes letting the state Commissioner of Correction contract with private entities for various specific inmate populations (work release, regional detention centers, prerelease units), the opinion concluded these disparate, narrowly targeted provisions did not add up to a patterned scheme preempting county-level contracting for ordinary jail custody. The opinion then flagged practical limits: the county could not delegate away its core police-power responsibility for the jail, state correctional facility standards and staff training rules would still apply to a contractor-run facility, and any contracting ordinance had to conform to the county's own charter requirements, including any charter rule requiring county council approval of contracts.

Citations

Statutes:

• Article 87, §45 and §46 (common-law sheriff custody duties, codified)
• Article 87, §48 (charter county authority to appoint a jailor or warden)
• Article 25A, §5(C) (charter county power to establish, maintain, regulate, and control county jails)
• Article 25A, §5(S) (general welfare/general grant of power clause)
• Article 25A, §5(T) and §5(X) (property use and zoning powers referenced in prior case law)
• Article 27, §690(e) and §690(g) (Commissioner of Correction agreements for housing state inmates in county or federal facilities)
• Article 27, §700A(c) (contracts for work release housing in local confinement facilities)
• Article 27, §705(b) and §705(f) (regional detention center agreements)
• Article 27, §710(b) and §710A(a) (Community Adult Rehabilitation Center leasing and private operation)
• Article 27, §678(d) (private contracting for a prerelease unit for women)
• Article 41, §§4-1201 to 4-1211 (Interstate Corrections Compact)
• Article 41, §4-401 and §4-401(b)(6) (Maryland Commission on Correction Standards; definition of "local correctional facilities")
• Article 41, §4-301 and §4-301(b)(4) (Correctional Training Commission qualification and training requirements)

Cases:

• Epps v. Levine, 457 F.Supp. 561, 565-66 (D.Md. 1978)
• Montgomery Citizens League v. Greenhalgh, 253 Md. 151 (1969)
• Snowden v. Anne Arundel County, 295 Md. 429 (1983)
• Bradshaw v. Prince Georges County, 284 Md. 294 (1979)
• Prince George's County v. Chillum-Adelphi, 275 Md. 374 (1975)
• County Council v. Investors Funding, 270 Md. 403 (1973)
• Prince George's County v. Silverman, 58 Md. App. 41 (1984)
• Rossburg v. State, 111 Md. 394 (1909)
• Maryland Classified Employees Ass'n v. Anderson, 281 Md. 496, 508 (1977)
• City of Belleview v. Belleview Fire Fighters, Inc., 367 S.2d 1086, 1088 (Fla. App. 1979)

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/1986/Volume71_1986.pdf

Original opinion text

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

LOCAL GOVERNMENT

Charter Counties—Preemption/Conflict—Talbot County May Contract With Private Entity For Custody Of Inmates In County Detention Facility.

March 20, 1986

David R. Thompson, Esquire
County Attorney for Talbot County

You have asked for our views on whether Talbot County, a charter county, has the legal authority to contract with a private entity for the custody of inmates committed to the county detention facility.

For the reasons given below, it is our opinion that the county does have the authority to contract for the custody of its inmates, pursuant to the enactment of appropriate ordinances.

I
Background

At common law, it was the obligation of the sheriff to provide custody of and medical care for prisoners. 58 Opinions of the Attorney General 647 (1973). These common law duties have been codified in Article 87, §§45 and 46 of the Maryland Code. Also in Article 87, however, is a provision for an alternate custodian. Article 87, §48, provides:

"Where a county has adopted a charter under Article XI-A of the Constitution of Maryland, the county council of the county by resolution, ordinance or local law may provide for the appointment of a qualified person as jailor or warden of the county jail, together with qualified assistants necessary to perform the duties of the office. A jailor or warden appointed shall be responsible for the safekeeping, care and feeding of all prisoners in the jail from the time they are committed (and while working on the public highways and going to and from that work) until they are discharged, released or withdrawn from jail by the sheriff, or under court order, or other authority. These provisions do not affect the powers and duties of the sheriff of the county in respect to the safekeeping and custody of all prisoners, except when the prisoners are in jail, or working on the public highways or going to and from work."

Talbot County, as a charter county, may, under §48, vest the responsibility for the housing of prisoners in an administrative official of the county. The further question, of course, is whether this official may use a private contractor to provide for the operation of the jail. The statute is silent on this point, but its general language regarding the county council's authority to provide for a warden and assistants indicates that the county has broad authority to decide how the jail will be administered. Determining whether that authority extends to the use of a contractor requires an examination of the powers granted to charter counties.

II
General Powers of Charter Counties

Article 25A of the Code (the "Express Powers Act" or the "Act") enumerates the powers of charter counties. Subsection 5(C) empowers charter counties "to establish, maintain, regulate and control county jails, and county houses of correction or detention and reformatories, and to regulate all persons confined therein."

The language of §5(C) clearly confers on charter counties, in very broad terms, full authority to provide for the operation of county jails and the treatment of prisoners. We are unaware of any limitations on the grant of this authority, except the statutory authority under Article 87, §45 and 46 of the sheriff to keep custody of and to care for prisoners and the authority of the courts regarding pretrial detainees. See Epps v. Levine, 457 F.Supp. 561, 565-66 (D.Md. 1978).

The scope of §5(C) of the Act is amplified by §5(S), which provides in part:

"The foregoing or other enumeration of powers in the article shall not be held to limit the power of the county council, in addition thereto, to pass all ordinances, resolutions or bylaw, not inconsistent with the provisions of this article or the laws of the State, as may be proper in executing and enforcing any of the powers enumerated in this section or elsewhere in this article, as well as such ordinances as may be deemed expedient in maintaining the peace, good government, health and welfare of the county.

Provided, that the power herein granted shall only be exercised to the extent that the same are not provided for by public general law; provided, however, that no power to legislate shall be given with reference to licensing, regulating, prohibiting or submitting to local option, the manufacture or sale of malt or spirituous liquors." (Emphasis added.)

Court decisions and Opinions of the Attorney General have construed §5(S) as a very broad grant of authority to legislate within and beyond the scope of the express powers set out elsewhere in §5. In Montgomery Citizens League v. Greenhalgh, 253 Md. 151 (1969), the Court of Appeals considered the authority of Montgomery County, a charter county, to enact a fair housing law prohibiting discrimination on the basis of race, religion, or national origin in the sale or rental of housing. The court concluded that the law was "a logical extension or supplementation of the specifically granted powers to legislate as to the use to be made of real property [§5(T)] and full power to zone [§5(X)]." 253 Md. at 160. The court, in reaching this conclusion, particularly considered §5(S) and noted: "The Council, having been given 'full' legislative power as specified by Art. XI-A, is also given the statutory power to pass 'all' ordinances it deems expedient under the police power." Id. See also 60 Opinions of the Attorney General 569, 571-72 (1975) (charter county may enact historic preservation legislation pursuant to Maryland Constitution, Article XI-A and Express Powers Act).

Fifteen years after its decision in Montgomery Citizens League, the Court of Appeals upheld a county ordinance that provided for the reimbursement of legal expenses incurred by certain county employees charged with criminal offenses or departmental violations in the performance of their duties. Snowden v. Anne Arundel County, 295 Md. 429 (1983). The court, in reaching its decision, relied heavily on Montgomery Citizens League. It noted with regard to §5(S) that "[t]his 'general welfare' or 'general grant of power' clause has been broadly construed to permit charter counties to legislate beyond the powers expressly enumerated in the Express Powers Act." Snowden, 295 Md. at 432. See also Bradshaw v. Prince Georges County, 284 Md. 294 (1979) (charter county may waive sovereign immunity); Prince George's County v. Chillum-Adelphi, 275 Md. 374 (1975) (charter county may direct activities of volunteer fire departments that accept county funds); County Council v. Investors Funding, 270 Md. 403 (1973) (§5(S) authorizes charter county to regulate landlord-tenant relations).

III
Limits on Powers of Charter Counties

The authority flowing from the Express Powers Act is not unlimited. Under §5(S), a county's ordinances must not be "inconsistent with the provisions of this article or the laws of the State," and the powers granted "shall only be exercised to the extent that the same are not provided for by public general law." These principles have been embodied in the concepts of "concurrent powers" and "preemption." "The doctrine of 'concurrent powers' enables the State and the local jurisdictions to legislate concurrently on a subject matter covered by the Express Powers Act, if there is no conflict between the local law and the Public General Law." 63 Opinions of the Attorney General 377, 388 (1978). The converse of concurrent power is the concept of preemption:

"In general, preemption occurs either when the General Assembly has expressly stated its intent to occupy exclusively a specific field of legislation or when a court is able to infer from a patterned approach to the subject, an implied intent on the part of the legislature to occupy exclusively the field." 65 Opinions of the Attorney General 136, 141 (1980).

In 63 Opinions of the Attorney General 377, the Attorney General concluded that a Prince George's County ordinance providing for county standards and licenses for group residential facilities was invalid. After carefully examining the ordinance and the various State statutes covering the facilities, the opinion concluded: "It is permissible for both the county and the State to impose licensing requirements unless the county requirements present an irreconcilable conflict with the State requirements or unless the State has so forcefully entered the field as to prevent local regulations 'by occupation.' Here we have what appear to be irreconcilable conflicts as well as a broad State regulatory scheme, and we thus conclude that the State licensing and regulations must take precedence to the exclusion of local regulation." 63 Opinions of the Attorney General at 399.

In 65 Opinions of the Attorney General 136, the Attorney General concluded that a proposed ordinance requiring or permitting the County Executive to enter into binding collective bargaining agreements covering county employees would be legal. In that opinion, we noted that the General Assembly had not provided an express statement of its intent to preempt the field of public sector collective bargaining. The General Assembly had enacted a statute to enhance the authority of Baltimore City to implement a collective bargaining scheme and statewide collective bargaining statutes reflective of an intent to occupy exclusively the field of education. However, this office concluded that such limited State legislative activities in the area were not part of a "patterned approach" to collective bargaining indicating an intent to occupy exclusively and thereby preempt the field.

IV
Talbot County's Authority to Contract for Operation of Jail

Applying these principles to your question, we conclude that §5(C) and (S) of the Express Powers Act permit the county to provide by ordinance for a contract with a private entity for the incarceration of county prisoners. As noted above, the grant of authority in §5(C) of the Act is stated in very broad terms: It is authority "to establish, maintain, regulate and control" county jails and "to regulate all persons confined therein." The authority vested by this language necessarily includes choosing whether to operate the institution with county employees or through the use of a contractor. This authority, of course, is further supported by §5(S) in that such an action not only would be an appropriate means of executing the express power granted by §5(C), but otherwise may be characterized as maintaining the "good government" of the county. See Montgomery Citizens League, 253 Md. 151 (1969); Prince George's County v. Silverman, 58 Md. App. 41 (1984); 65 Opinions of the Attorney General 136 (1980).

We are unaware of any enactments of the General Assembly that express a legislative purpose to reserve to the General Assembly the enactment of laws concerning contracts for custody of prisoners. Accordingly, we conclude that there is no preemption by direct, express legislative statement. The further question is whether the General Assembly has acted so forcefully, and in such a patterned manner, as to allow an inference of preemption by exclusive occupation.

The legislature has addressed the contracting of prison services in other contexts. For example, Article 27, §690(e) authorizes the Commissioner of Correction to enter into agreements for the housing of State inmates in county detention facilities and §690(g) authorizes the Commissioner to contract with the federal government for the housing of State inmates. Under Article 27, §700A(c), the Commissioner may contract with "the proper authorities of political subdivisions of this State" for the housing of work release program participants in "local confinement facilities."

Article 27, §705(b) provides for written agreements between counties that choose to establish and maintain a regional detention center. Article 27, §705(f) authorizes the Commissioner of Correction to enter into an agreement that provides for the housing of State inmates in a regional detention center. A county seeking to establish a Community Adult Rehabilitation Center is authorized, under Article 27, §710(b) to lease a facility to serve as a center. Additionally, under Article 27, §710A(a), the State or a county establishing a Community Adult Rehabilitation Center "may, by contract, provide for the operation of [the] center by a nonpublic person, group, or agency."

In addition to those provisions, the Commissioner of Correction is authorized to contract with certain other states for the housing of this State's inmates in facilities in those states. Article 41, §§4-1201 to 4-1211 (the "Interstate Corrections Compact"). Finally, under Article 27, §678(d), the Commissioner of Correction may contract with "any private persons, firms, or organizations, to provide food, housing, transportation, and programs to inmates in a prerelease unit for women."

A review of these statutes indicates a legislative intention to control the authority of the Commissioner of Correction to provide by contract for the custody of inmates. However, the statutes do not represent such a patterned approach to similar contracting by counties as to lead to the conclusion that the legislature has preempted such contract authority. Instead, as noted in 65 Opinions of the Attorney General at 143, "these legislative actions simply stem from disparate needs brought to the attention of the General Assembly" within the context of very specific types of institutions.

In sum, it is our advice that Talbot County, by enacting ordinances to vest authority over county inmates in a warden or jailor and to authorize custody and care of inmates to be provided by a private contractor, would be exercising its concurrent power to legislate in the area of local jail operation. Such ordinances would "supplement the Public General Law without contravening it." 63 Opinions of the Attorney General at 388, citing Rossburg v. State, 111 Md. 394 (1909).

V
Related Issues

A. County's Police Power

While the county has authority to contract for prison services, it cannot wholly abdicate its responsibility for the operation of a county jail. The operation of a jail is clearly an exercise of the police power, and the police power cannot be delegated to a private entity. "Although local governments are normally bound by their contracts, ... it has long been recognized that questions of invalidity and enforceability arise when governmental bodies attempt by ordinance or contract to surrender or bargain away their discretionary legislative functions." Maryland Classified Employees Ass'n v. Anderson, 281 Md. 496, 508 (1977) (citation omitted).

Hence, such a contract should not purport to prevent the county from controlling the operation of the jail. See City of Belleview v. Belleview Fire Fighters, Inc., 367 S.2d 1086, 1088 (Fla. App. 1979) (contract giving private corporation exclusive right to determine manner and method of providing fire protection, including selection of fire fighters and setting of policy, held invalid). We recommend that such a contract include provisions regarding the degree of control retained by county officials, the respective liabilities of the parties and their employees, standards for the operation of the facility, and the training and qualification of correctional officers.

With regard to the last two items, we direct your attention to relevant provisions of State law. Standards for local correctional facilities are established and enforced by the Maryland Commission on Correction Standards, under Article 41, §4-401. The term "local correctional facilities" includes "all places of correctional confinement or correctional institutions within the State of Maryland, primarily operated by local governments." Article 41, §4-401(b)(6). Thus, it appears that the State standards would apply, as a matter of law, to a facility operated under a contract with a private entity. Similarly, qualification and training requirements for certain correctional employees are established and enforced by the Correctional Training Commission, under Article 41, §4-301. Although the matter is not entirely free from doubt, it appears that these requirements may apply to the employees of a contractor. See Article 41, §4-301(b)(4).

B. Conformance to County Charter

Although the county has the authority to contract for prison services, the ordinances by which the county exercises its authority must be consistent with the provisions of the county charter. The ordinances may not permit the county to enter into a contract in a manner inconsistent with requirements set out in the charter. For example, if, under the charter, all county contracts must be approved by the County Council, the ordinances to be enacted may not delegate that approval authority. A thorough discussion of this principle, in the context of collective bargaining, is set out in 65 Opinions of the Attorney General 136, 144-52.

C. Private Ownership of Jail

You asked that we specifically address not only the county's authority to contract for the operation of a jail constructed and owned by the county, but also the county's authority to contract for the housing of county inmates in a privately owned and operated facility. Insofar as the authority of the county is concerned, we see no difference between the two means of contracting for inmate housing. So long as ordinances consistent with the county charter authorize the particular means of contracting, the county may undertake either method. We note, however, that there may be significant differences in the legal and practical issues presented by each scheme. For example, it is our understanding that State co-funding of the construction of county jails would not be available for the construction of a privately owned facility.

Furthermore, the county's reliance on a privately owned facility would have serious implications, in that the county would have great difficulty, on short notice, providing for custody of its inmates elsewhere. This would tend to place the county at a disadvantage in dealing with a contractor's poor performance or default. One acceptable solution might be the county's retention of an option to purchase the facility for a clearly established price in the event the county terminates the contract. In any event, the potential problems presented by termination of such a contract should be carefully addressed in the agreement between the county and the contractor.

VI
Conclusion

In summary, it is our opinion that Talbot County, as a charter county, may, through the enactment of ordinances consistent with the county charter, provide for custody of its inmates by a private contractor. These ordinances would both vest authority for the custody of county inmates in a warden or jailor under Article 87, §48, and authorize contracting with a private entity for the care of the inmates, either in a county owned facility or in a facility owned by the contractor.

Stephen H. Sachs
Attorney General
Alan D. Eason
Assistant Attorney General

Jack Schwartz
Chief Counsel
Opinions and Advice

Editor's Note: The preceding opinion was originally issued as a letter of advice. The references in it to Article 41 have been changed to reflect subsequent recodification. Other recent opinions on problems of preemption and conflict include 72 Opinions of the Attorney General 188 (1987) and 69 Opinions of the Attorney General 183 (1984).