Can a governor's advisory council testify to the legislature against the Governor's own position on a bill?

Plain-English summary

The Director of Maryland's Office for Handicapped Individuals asked the Attorney General whether the State Advisory Council for Handicapped Individuals, a 26-member gubernatorial advisory body, could take a position on pending legislation that differed from the Governor's own position. The Attorney General concluded that the Council remained bound by the Governor's general procedures for how executive branch agencies handle legislative matters, meaning disagreements with another agency's position had to first go through the Governor's Legislative Office for an attempt at resolution. But the opinion concluded that if that process failed to resolve the disagreement, the Council could still tell the General Assembly its own view, even one contrary to whatever position the Governor ultimately adopted, because the statute creating the Council gave it an inherent advocacy role for handicapped individuals that would be hollow if the Council could never disagree with the administration in public.

Currency note

This opinion was issued in 1988. 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 every Maryland executive agency have to clear its legislative testimony with the Governor's office first?
Generally yes, according to this opinion. The Attorney General concluded that the Governor's constitutional power to recommend legislation under Article II, §19 let the Governor set procedures requiring executive agencies to route legislative positions through the Governor's Legislative Office, and that a disagreeing agency should not testify against another agency's position without first attempting resolution there.

Could the General Assembly still get an agency's independent legislative advice even over the Governor's objection?
Yes, in certain cases. The opinion concluded the General Assembly has its own power to require specific agencies, through their creating statutes, to study and report on the need for legislative changes, and that this legislative design was not displaced by the Governor's general power to coordinate executive branch legislative positions.

What ultimately let the Advisory Council for Handicapped Individuals speak independently?
The opinion concluded the Council's own statute, requiring it to both advise the Office for Handicapped Individuals and to "foster ... support for programs for handicapped individuals," implied a degree of independence that would be meaningless if the Council could never publicly support legislation the Governor opposed, so after the Governor's dispute-resolution process was tried, the Council could still state its own position to lawmakers.

Background and statutory framework

The opinion described the State Advisory Council for Handicapped Individuals, created by Chapter 295 of the Laws of Maryland 1984, as a 26-member body of gubernatorial appointees, mostly members of the general public alongside some representatives of specific executive branch agencies, whose statutory duties under SG §9-1109 included advising the Office for Handicapped Individuals, reviewing statewide activities for handicapped individuals, and fostering support for relevant programs. The Office itself sits within the Office of the Governor, but the statute did not specify where the Council fit organizationally, unlike some other Title 9 bodies that the Revisor's notes expressly classified as part of the Executive Department or as "independent units."

The opinion grounded the Governor's general authority over executive branch legislative positions in Article II, §19 of the Maryland Constitution, which lets the Governor "recommend to [the Legislature's] consideration such measures as he may judge necessary and expedient," quoting the federal court's description of that power in United States v. Mandel. From that recommending power, the opinion reasoned the Governor must also be able to structure how executive agencies formulate and present legislative positions, including through a documented procedure (quoted from a 1987 memorandum from the Governor's Chief Legislative Officer) requiring agencies to clear disagreements with the Legislative Office before testifying against another agency's position.

At the same time, the opinion recognized a countervailing legislative power: the General Assembly can, through an agency's own statute, direct that agency to study and report on the need for legislative change, a function the opinion characterized, citing Department of Natural Resources v. Linchester Sand & Gravel Corp., as a proper administrative function serving the public health, safety, and welfare. The opinion harmonized these two sources of authority by concluding every executive agency remains subject to the Governor's procedural requirements on legislative matters, but an agency whose own statute reflects legislative intent that it make independent recommendations may still do so even against the Governor's wishes.

Applying this framework to the Council, the opinion reasoned that the Council's dual statutory role, advising the Office while also fostering support for handicapped-individual programs, would collapse into simple duplication of the Office's own role if the Council could never diverge from the Governor's position, and that the presence of departmental representatives on the Council suggested it was meant to be a forum where the administration's view is presented, not automatically adopted as the Council's own. The opinion accordingly concluded the Council had to route disagreements through the Governor's Legislative Office first, but retained the authority to state a contrary position to the General Assembly if that process did not resolve the disagreement, noting in a footnote that the Governor could ultimately respond to a disagreement through his power to appoint (and presumably not reappoint) Council members.

Citations and references

Statutes:

• SG §9-1109
• SG §9-1107(b)(3), (b)(6), (b)(7), (b)(9), (c), and (d)
• SG §9-1107(e)
• SG §9-1102
• SG §9-202
• SG §9-302
• SG §9-802
• SG §9-906
• SG §9-1201(b)
• SG §9-103
• SG §9-704
• SG §9-109(c)(3) and (4)
• Article II, §19
• Article 33, §1A-1(e)(5)
• Article 40A, §2-103(d)
• Chapter 295, Laws of Maryland 1984
• Chapter 284, Laws of Maryland 1984

Cases:

• United States v. Mandel, 415 F.Supp. 997, 1023 (D. Md. 1976), aff'd 602 F.2d 653 (4th Cir. 1979)
• Department of Natural Resources v. Linchester Sand & Gravel Corp., 274 Md. 211, 222, 334 A.2d 514 (1975)

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/1988/Volume73_1988.pdf

Original opinion text

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

LEGISLATION

Governor—State Advisory Council for Handicapped Individuals—Procedural Requirements on Legislative Matters—Authority To State Separate Position.

February 26, 1988

Ms. Gertrude R. Jeffers, Director
Office for Handicapped Individuals

You have requested our opinion concerning the authority of the State Advisory Council for Handicapped Individuals to take positions on proposed legislation. From the materials that you provided us, we understand your question to be whether the Council may take a position on legislation that differs from the position of the Governor.
For the reasons stated below, we conclude that the Council is subject to the procedures regarding departmental legislation prescribed by the Governor's Office. Under these procedures, any disagreement between the Council and another Executive Branch agency should be presented to the Governor's Legislative Office for resolution. However, if the disagreement cannot be resolved, the Council may state its position to the General Assembly even if its position is contrary to the position urged by another agency and ultimately adopted by the Governor.

                               I
                         Background

The State Advisory Council for Handicapped Individuals was created by Chapter 295, Laws of Maryland 1984. Under §9-1109 of the State Government Article ("SG" Article), the Council has the following duties:

  The Council shall:
   (1) advise the Office [for Handicapped Individuals] in carrying out its duties;
   (2) review statewide activities for handicapped individuals, including reviewing reports and publications of committees and commissions;

    (3) foster coordination of and support for programs for handicapped individuals;
     (4) study ways to maximize the use of the facilities and services available to handicapped individuals; and
     (5) hold:
        (i) at least quarterly, regularly scheduled meetings; and
       (ii) open meetings to provide direct communication, between handicapped individuals and private and public organizations and the general public, about programs and services for and needs of handicapped individuals.

The Council consists of 26 gubernatorial appointees, who serve three-year staggered terms. Some of the Council members represent specified Executive Branch agencies. See SG §9-1107(b)(3), (b)(6), (b)(7), (b)(9), (c), and (d). The majority are members of the general public. SG §9-1107(e).
The Office for Handicapped Individuals, which the Council advises, is established as part of the Office of the Governor. SG §9-1102. However, the statute does not specifically identify an organizational context for the Council.1

1
SG Title 9 was captioned "Miscellaneous Executive Agencies" by the Revisor of Statutes. See Chapter 284, Laws of Maryland 1984, at 1198. Some of these agencies are expressly identified as part of the Executive Department or a cabinet department. E.g., SG §§9-202 (State Commission on Uniform State Laws), 9-302 (Office of Minority Affairs), and 9-802 (War Memorial Commission). Others are expressly made "independent units." SG §§9-906 (Maryland Veterans Commission) and 9-1201(b) (Office of Special Counsel). Still others, like the Council, are simply established without further elaboration. E.g., SG §§9-103 (State Lottery Agency) and 9-704 (Council on the State Capital).

                                       II
                          Legislative Advocacy

Under Article II, §19 of the Constitution, the Governor is empowered to "recommend to [the Legislature's] consideration such measures as he may judge necessary and expedient." One court has paraphrased this section as follows: "The obvious import of this section is that the Governor may recommend such legislation for the General Assembly's consideration as he might determine in his discretion is in the public interest." United States v. Mandel, 415 F.Supp. 997, 1023 (D. Md. 1976), aff'd 602 F.2d 653 (4th Cir. 1979).
In order to carry out this power, the Governor must be able to structure the process by which Executive Branch legislative recommendations are made. See generally 1 Sutherland Statutory Construction §13.08, at 538 (rev. 4th ed. 1985). If the Governor exercises his discretion to support or oppose some piece of legislation, officials subject to the Governor's supervision generally are not entitled to advocate a different position without the Governor's approval.2
The Governor also has the power to implement Article II, §19 by prescribing the procedures under which an Executive Branch agency may request legislation or state its position on a bill. Current procedures embody a process for dispute resolution when Executive Branch agencies disagree about legislation: "Under ordinary circumstances an agency should not testify or lobby against another agency position without first having its position cleared with the Legislative Office so that all reasonable efforts to resolve agency conflict are attempted." Memorandum from Alan Rifkin, Chief Legislative Officer, at 1 (July 14, 1987) (emphasis in original).
However, the General Assembly itself has the power to vest in an agency the duty to make legislative recommendations. The General Assembly might well perceive the need for an agency not only to administer existing law but also to ascertain and report on the need for legislative change. See, e.g., Article 33, §1A-1(e)(5) of the Maryland Code (State Administrative Board of Election Laws); Article 40A, §2-103(d) (State Ethics Commission); SG §9-109(c)(3) and (4) (State Lottery Agency). The task of assessing the need for legislative change surely might be one "which the Legislature deems desirable and necessary to forward the health, safety, welfare and morals of the citizens of this State," and therefore to be a proper function of an administrative agency. Department of Natural Resources v. Linchester Sand & Gravel Corp., 274 Md. 211, 222, 334 A.2d 514 (1975). We do not believe that the Governor's constitutional power to recommend legislation divests the General Assembly of its power to obtain legislative recommendations from specified agencies.
In our view, the following principles harmonize the prerogatives of the Governor and the General Assembly: Every Executive Branch agency is subject to the Governor's procedural requirements regarding

2
This opinion does not treat the First Amendment right of individuals to express their views personally, as distinct from views expressed in their official capacity. The authority of constitutional officers other than the Governor to address legislative matters is also outside the scope of this opinion.

legislative agenda, as contemplated by Article II, §19. However, if an agency's statute indicates the General Assembly's intent that the agency make its own legislative recommendations, the agency may do so even if the Governor has a different position.3

                                  III
                   The Council's Responsibility

As we read the statute, the Council was created for two main purposes: to advise the Office for Handicapped Individuals, and to serve as an advocate for the interests of the handicapped. Both of these roles imply some degree of independence. If the Council were intended to be merely an agent of the Governor for the carrying out of the Governor's policy regarding the handicapped, it would essentially duplicate the role of the Office. Moreover, the statute's specification of departmental representation on the Council suggests that the Council as a whole was meant to serve as a forum where the Governor's point of view would be presented, but would not necessarily emerge as the position of the Council itself. Finally, the Council's statutory duty to "foster ... support for programs for handicapped individuals" could not be carried out effectively if the Council were unable to make known its support for the very legislation that would embody such programs. Thus, we think that the Council may take a position that deviates from that of the Governor on legislation pertinent to the handicapped. At the same time, we conclude that the Council remains subject to the procedures for legislation prescribed by the Governor. The requirement that the Council submit its legislative positions in advance to the Governor's Legislative Office is not inconsistent with the Council's underlying authority to make known its positions, even over the Governor's objection.

3
If the Governor disapproves of the agency's legislative recommendation, he will ultimately be able to act on that disapproval through his power of appointment.

                            IV
                        Conclusion

In summary, it is our opinion that the State Advisory Council for Handicapped Individuals is subject to the procedures regarding departmental legislation prescribed by the Governor's Office. Under these procedures, any disagreement between the Council and another Executive Branch agency should be presented to the Governor's Legislative Office for resolution. However, if the disagreement cannot be resolved, the Council may state its position to the General Assembly even if its position is contrary to the position urged by another agency and ultimately adopted by the Governor.

        J. Joseph Curran, Jr., Attorney General
        Jack Schwartz, Chief Counsel
           Opinions & Advice