Can a Montgomery County Council member resign and later be appointed to the county Planning Board, if the two jobs are otherwise incompatible?

Plain-English summary

Montgomery County's own attorney asked the Attorney General in 1989 whether a sitting County Council member could apply for and accept a full-time position on the County Planning Board, given that Council members appoint and can remove Planning Board members, approve the Board's budget, and set the salary for a full-time Board position. The Attorney General agreed the two positions were legally "incompatible" under the common law doctrine, since the Council has direct supervisory and financial power over the Board. But the opinion concluded that incompatibility only barred someone from holding both jobs at the same time; a councilmember who resigned from the Council before the Council took the specific actions that would benefit him (filling the Planning Board vacancy, or raising that position's salary) could then be appointed to the Board without running afoul of either the common law doctrine or the Maryland Declaration of Rights' ban on holding two "offices of profit" simultaneously.

Currency note

This opinion was issued in 1989. 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

In 1989, could a Montgomery County Council member also serve on the County Planning Board at the same time?
No. The opinion concluded the two offices were legally incompatible under the common law doctrine, since the Council appoints and can remove Planning Board members, approves the Board's budget, and sets the salary for the full-time Board position at issue.

Could resigning from the Council first fix the problem?
Yes, according to the opinion, as long as the resignation happened before the Council voted either to fill the Planning Board vacancy or to increase the salary of that Planning Board position. The opinion reasoned that a genuine resignation removes the conflict of interest the incompatibility doctrine exists to prevent.

Why did the timing of the resignation matter so much?
The opinion distinguished a genuine resignation from cases where an official kept enough control or influence over the very vote that benefited them. It cited an 1891 Michigan case where a councilmember's resignation, made only a week before his colleagues voted to appoint him police chief to a position they had newly created while he was still on the council, did not cure the conflict, because a Maryland constitutional provision governing legislators bars them from taking a newly created or newly better-paid office they helped create or fund during their own term, even after resigning.

Did the Maryland Constitution's ban on legislators taking self-created offices apply here?
No, according to the opinion, because that specific provision, Article III, §17, applies only to members of the General Assembly taking offices they helped create or fund, not to county council members. The opinion found the Planning Board itself was created by state law, not the County Council, and that the Council had not yet acted on the proposed salary increase for the position at issue, so the councilmember could resign before either relevant Council action.

Background and statutory framework

Article 35 of the Maryland Declaration of Rights bars a person from holding two "offices of profit" "at the same time." Separately, Maryland's common law incompatible-offices doctrine, most authoritatively stated in Hetrich v. County Commissioners, asks "whether there is a present or prospective conflict of interest, as where one office is subordinate to the other or subject to supervision by the other, or where the incumbent of one office has the power to appoint or remove or set the salary of the other." Applying that test, the opinion found the Montgomery County Council and County Planning Board offices incompatible: under Article 28, §§2-101 and 2-103, three Planning Board members are appointed and removable by the County Council; under §2-118 the Council approves the Board's budget; and under §2-104 the Council authorizes a "supplementary salary" for a full-time Board member, the very position at issue.

The harder question was whether resignation from the first office cures the incompatibility. The opinion found no Maryland case squarely addressing that sequence (all the reported Maryland incompatibility cases involved simultaneous service), but read the doctrine's purpose, preventing self-dealing conflicts of interest, as implying that resignation should ordinarily cure the problem, consistent with how officials satisfy Article 35 generally. It distinguished two out-of-state cases the Court of Appeals had cited in Hetrich without extended analysis: in the Michigan case, People ex rel. Ellis v. Lennon, a town councilmember's resignation one week before his own colleagues voted to appoint him to a newly created police chief position did not cure the problem, but the opinion traced that result to a specific Michigan anti-self-dealing statute closely paralleling Maryland's own Article III, §17 (which bars a member of the General Assembly from taking an office he helped create or fund during his own legislative term, even after resigning), a provision that by its terms applies only to state legislators, not county council members. In the New York case, People ex rel. Shirey v. Pearson, the court found a purported resignation to be a sham used to manipulate a vote, a fact pattern the opinion distinguished from a councilmember who genuinely resigns and has no further involvement in the vote appointing his successor position.

Citations and references

Statutes:

• Article 35 of the Maryland Declaration of Rights, barring simultaneous holding of two "offices of profit"
• Article III, §17 of the Maryland Constitution, barring a member of the General Assembly from taking an office he helped create or fund during his legislative term, even after resigning
• Article 28, §§2-101 and 2-103, governing County Council appointment and removal of Planning Board members
• Article 28, §2-104, the "supplementary salary" provision for a full-time Planning Board member
• Article 28, §2-118, the County Council's budget-approval authority over the Planning Board

Cases:

• Hetrich v. County Commissioners, 222 Md. 304, 308, 310, 159 A.2d 642 (1960), stating the common law incompatible-offices test
• Lilly v. Jones, 158 Md. 260, 265, 148 A. 434 (1930), and Howard County Metro. Comm'n v. Westphal, 232 Md. 334, 193 A.2d 56 (1963), on the rule against simultaneously holding incompatible offices
• People ex rel. Ellis v. Lennon, 49 N.W. 308 (Mich. 1891), and Wachter v. McEvoy, 125 Md. 399, 93 A. 987 (1915), on situations where a specific statute, not the common law doctrine, prevented resignation from curing an office conflict
• People ex rel. Shirey v. Pearson, 200 N.Y.S. 60 (Sup. Ct.), aff'd mem. 201 N.Y.S. 936 (N.Y. 1923), on a sham resignation not curing a self-appointment conflict
• Dry Creek Valley Ass'n, Inc. v. Board of Supervisors, 135 Cal. Rptr. 726, 729 (Cal. App. 1977), on construing the common law and a constitutional or statutory provision to avoid conflict where reasonably possible

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/1989/Volume74_1989.pdf (this opinion appears at printed pages 238-242 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

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

PUBLIC OFFICERS

Incompatible Positions - County Council - Planning Board - Effect of
Resignation

                        April 4, 1989

Clyde H. Sorrell, Esquire
County Attorney for Montgomery County

You have requested our opinion on the eligibility of a member of

the Montgomery County Council for appointment to the Montgomery
County Planning Board during that councilmember's term of office.
Specifically, you ask that we consider the applicability of the common
law doctrine of incompatible positions to this situation.

 For the reasons stated below, we conclude that a person may not

serve simultaneously as a member of the Montgomery County Council
and a member of the Montgomery County Planning Board. However,
a councilmember is eligible to serve on the Planning Board if he or she
resigns from the County Council prior to any action by the County
Council (i) to make the appointment to the Planning Board or (ii) to
increase the salary of the Planning Board position.

                               I

                         Background

 As we understand the situation, a member of the Montgomery

County Council is considering whether to apply for the position of full-
time member of the County Planning Board. Because the positions of
member of the County Council and member of the Planning Board are
"offices of profit," within the meaning of Article 35 of the Maryland
Declaration of Rights, a person may not hold both of those offices "at
the same time." The councilmember is prepared to resign from the
County Council prior to assuming the Planning Board position (should
the councilmember apply and be selected). The question has arisen,
however, as to whether this course, resignation from the first office,
followed by acceptance of the second, would be permissible under the
common law incompatibility doctrine, or whether that doctrine renders
the councilmember ineligible for the Planning Board position.

                               II

        Resignation and the Incompatibility Doctrine

We begin with the question of whether the two positions are

incompatible, within the meaning of the common law doctrine. In
Hetrich v. County Commissioners, 222 Md. 304, 159 A.2d 642 (1960),
a member of a board of county commissioners had been appointed by
the board to serve simultaneously as county business manager. The
Court of Appeals held that the two positions were incompatible and that
the commissioner was not eligible for the position of business manager.

The Court phrased the test for determining whether offices are

incompatible rather broadly:

        The fundamental test of incompatibility at common
     law is whether there is a present or prospective
     conflict of interest, as where one office is subordinate
     to the other or subject to supervision by the other, or
     where the incumbent of one office has the power to
     appoint or remove or set the salary of the other.

222 Md. at 308.

 Three members of the Planning Board are appointed, and may be

removed, by the Montgomery County Council. See Article 28, §§2-
101 and 2-103 of the Maryland Code. The County Council also
approves the operating and capital budgets of the Planning Board. §2-

118. Moreover, the County Council authorizes a "supplementary
     salary" for a Planning Board member who serves full-time, which is
     the position in question here. §2-104. Based on these and other legal
     relationships between the County Council and the Planning Board, we
     conclude that the two offices are incompatible.

     This conclusion matters, however, only if the common law doctrine
     prevents the holder of one office from resigning and accepting the
     second office. Such a sequence would, of course, satisfy Article 35 of
     the Declaration of Rights. The question is whether it would also
     satisfy the common law doctrine, or whether a member of the County
     Council would be ineligible for membership on the Planning Board
     even if the councilmember resigned from the County Council prior to
     his or her appointment.

     Hetrich involved the problem of simultaneous service in
     incompatible offices. It did not address the legal consequence of a
     prior resignation from the first office. Indeed, as far as we are aware,
     all of the Maryland incompatibility cases involved simultaneous
     service. The Court of Appeals has summarized the doctrine as follows:
     "It is the well settled rule of the common law that a person cannot, at
     one and the same time, rightfully hold two offices which are
     incompatible ...." Lilly v. Jones, 158 Md. 260, 265, 148 A. 434 (1930)
     (emphasis added). See also Hetrich, 222 Md. at 310; Howard County
     Metro. Comm'n v. Westphal, 232 Md. 334, 193 A.2d 56 (1963). An
     attempt to hold both simultaneously fails because, under Hetrich, the
     person who continues in the first office is ineligible for the second.

     However, the clear implication of this caselaw is that if two offices
     are incompatible, the holder of one becomes eligible for the second
     through resignation from the first at the appropriate time. In this way,
     the common law doctrine would operate in conformity with the
     accepted mode of compliance with Article 35 of the Declaration of
     Rights. In general, "the common law and [a] statute", or, as here, a
     constitutional provision, "must be construed so as to avoid conflict, if
     reasonably possible." Dry Creek Valley Ass'n, Inc. v. Board of
     Supervisors, 135 Cal. Rptr. 726, 729 (Cal. App. 1977).

     To be sure, in Hetrich the Court of Appeals cited (without
     pertinent analysis) two out-of-state cases in which resignation from one
     office did not cure the legal problems occasioned by acceptance of the
     second office. But both of those cases involved special circumstances
     and do not, in our view, represent a general legal principle barring
     acceptance of an incompatible office after resignation from the prior
     office.

     In People ex rel. Ellis v. Lennon, 49 N.W. 308 (Mich. 1891), a
     member of a town council resigned one week before the vote at which
     his former colleagues appointed him to be the town's police chief. The
     Michigan court held that he was ineligible for the position of police
     chief. However, the basis of the court's holding was a statute
     prohibiting appointment to office "during the period for which he was
     elected." The office of police chief had been created while Lennon was
     a member of the council. 49 N.W. at 310.

     The Michigan statute, in other words, was aimed at the same evil
     addressed by Article III, §17 of the Maryland Constitution, a member
     of a legislative body being in a position to influence the creation of an
     office, or an increase in its salary, and then reaping the benefits of that
     legislative act. Resignation from the legislative body would not, in that
     situation, correct the problem.

     The wording of Article III, §17 is noteworthy: "No Senator or
     Delegate, after qualifying as such, notwithstanding he may thereafter
     resign, shall during the whole period of time, for which he was
     elected, be eligible to any office, which shall have been created, or the
     salary, or profits of which shall have been increased, during such
     term." As far as we are aware, none of the cases or opinions on this
     provision suggest that the italicized phrase merely embodies a common
     law principle. See also Wachter v. McEvoy, 125 Md. 399, 93 A. 987
     (1915) (specific statute prevents pursuit of office despite resignation
     from prior office).

     Assuming that the common law incompatibility doctrine nonetheless
     may itself be applied to prevent the kinds of problems that are
     addressed only as to members of the General Assembly by Article III,
     §17, the doctrine need not apply in this case. First, the Planning Board
     was not created by the Montgomery County Council. Rather, it has
     existed by virtue of a State statute for many years. Second, although
     the County Council sets the salary of the full-time Planning Board
     position in question here (see Article 28, §2-104), we understand that
     the County Council has not yet acted on a proposed increase.
     Therefore, a councilmember interested in applying for the Planning
     Board position could resign from the County Council prior to that
     action.

     The other case mentioned in Hetrich is People ex rel. Shirey v.
     Pearson, 200 N.Y.S. 60 (Sup. Ct.), aff'd mem. 201 N.Y.S. 936 (N.Y.
     1923). In that case, the trial court announced the unexceptionable
     principle that "a public officer may not vote to appoint himself to
     public office." On the facts before it, the court found that a purported
     resignation was a sham, a mere "subterfuge and strategem" by which
     to control the vote on the appointment. 200 N.Y.S. at 61. We do not
     believe that this case addresses a situation in which a member of a
     legislative body resigns from the body and genuinely has nothing to do
     with a subsequent vote by which the former member is appointed to
     another office.

                               III
     
                           Conclusion
     

     In sum, if a member of the Montgomery County Council resigned
     from the County Council prior to its action to fill a vacancy on the
     Planning Board, and prior to any action by the County Council to
     increase the salary for that Planning Board position, in our opinion the
     common law incompatibility doctrine would not likely be applied to
     prevent that former councilmember from serving on the Planning
     Board.

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