Can Maryland raise the pay of a State Roads Commission member in the middle of the member's term?

Plain-English summary

A Fiscal Year 1990 state budget bill raised the annual pay of the seven regional members of the State Roads Commission from $4,500 to $4,700. The Secretary of Transportation asked whether Article III, §35 of the Maryland Constitution, which bars increasing a public officer's compensation during a term of office of four years or less, blocked that raise for commissioners already serving.

The Attorney General concluded the commissioners are "public officers" within the meaning of Article III, §35: their positions are created by law, carry continuing duties and fixed four-year terms, require an oath of office, and, most importantly, the Commission still exercises sovereign "quick-take" condemnation power under Article III, §40B of the Constitution. Because they are public officers with four-year terms, their pay could not be raised mid-term. The practical result split the Commission in two: four commissioners who began new terms in October 1989, after the pay raise took effect, could be paid the new $4,700, while the three commissioners whose terms ran until 1992 had to remain at the old $4,500 until their terms ended. The opinion added that no administrative fix existed and that the only way to unblock future raises across the board would be legislation eliminating the commissioners' fixed terms or extending them beyond four years.

Currency note

This opinion was issued in 1990. 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. Many State Roads Commission functions described here were transferred to the State Highway Administration by 1970, and further reorganizations of Maryland's transportation agencies may have occurred since 1990.

Common questions

Why couldn't the state just pay all commissioners the new $4,700 rate right away?
Because Article III, §35 of the Maryland Constitution bars increasing a public officer's compensation during that officer's term when the term is four years or less. Commissioners who were mid-term when the raise took effect could not receive it until their next term began.

What made State Roads Commission members "public officers" rather than employees?
The opinion pointed to several traditional markers: their positions are created by statute, carry continuing duties and a fixed four-year term, and require the oath demanded of officers of profit or trust. It found the most important factor was that commissioners still exercise a sovereign power, "quick-take" condemnation of private property for highway purposes under Article III, §40B of the Constitution.

Could the Department of Transportation find an administrative workaround?
No. The opinion concluded there was no administrative way to increase the sitting commissioners' pay given the constitutional bar; only a legislative change to the commissioners' terms could resolve the problem going forward.

What legislative fix did the opinion suggest?
Amending the Transportation Article provision setting the commissioners' terms, either eliminating fixed terms so commissioners serve at will, or extending the term beyond four years, since Article III, §35 only bars pay changes for officers whose term is four years or less.

Background and statutory framework

Article III, §35 of the Maryland Constitution prohibits increasing or decreasing a public officer's salary during the officer's term, unless the officer's full term "is fixed by law in excess of 4 years." The opinion described this as a "prophylactic" rule meant to prevent an officer from pressuring the Legislature for a raise, and to prevent the Legislature from coercing an officer with the promise of a raise or the threat of a cut (Comptroller v. Klein).

State Roads Commission members serve four-year terms under §8-212(b) of the Transportation Article and are compensated as set in the state budget under §8-212(c). Reaffirming a 1945 AG opinion that a commissioner "holds an office of trust and profit," this opinion applied the Court of Appeals' public-officer factors from Board of Supervisors of Elections v. Attorney General: posts created by law, continuing duties, definite terms, and a required oath. It found the decisive factor in Duncan v. Koustenis' standard that commissioners exercise "some of the sovereign powers of government for the benefit of the public," pointing specifically to the Commission's exclusive "quick-take" condemnation authority under Article III, §40B and its implementing provisions in the Transportation Article, a power the opinion called a "prerogative of sovereignty" (Riden v. Philadelphia, B. & W. R.R. Co.).

Because the Fiscal Year 1990 budget bill (Chapter 14, Laws of Maryland 1989) took effect July 1, 1989, and four commissioners began new terms on October 10, 1989 under §8-211(b), those four could receive the increased $4,700 rate since it was fixed before their terms began. The three commissioners whose terms ran through 1992 had to remain at $4,500 for the balance of their terms, consistent with the rule in Comptroller v. Klein that a new appointee taking a vacant seat may receive an increased rate even though a sitting officer cannot.

Citations and references

Statutes:

• Article III, §35 of the Maryland Constitution (bar on mid-term pay changes for public officers with terms of four years or less)
• Article III, §40B of the Maryland Constitution (State Roads Commission's "quick-take" condemnation power)
• §§8-210, 8-211, 8-212 of the Transportation Article (creation, appointment, and compensation of State Roads Commission members)

Cases:

• Comptroller v. Klein, 215 Md. 427 (1958) (purpose of Article III, §35; new appointees may receive an increased rate)
• Board of Supervisors of Elections v. Attorney General, 246 Md. 417 (1967) (traditional indicia of a public officer)
• Duncan v. Koustenis, 260 Md. 98 (1970) (exercising sovereign powers for the public benefit is the key public-officer factor)
• Riden v. Philadelphia, B. & W. R.R. Co., 182 Md. 336 (1943) (condemnation power is a "prerogative of sovereignty")

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/1990/Volume75_1990.pdf (this opinion appears at printed pages 377-381 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

State Roads Commission -- Commissioners Are Public Officers Subject to Bar Against Increased Compensation in Article III, §35 of the Constitution

January 24, 1990

The Honorable Richard H. Trainor
Secretary of Transportation

You have requested our opinion on whether Article III, §35 of the Maryland Constitution would prevent increases in the compensation of the seven regional members of the State Roads Commission.

A regional member of the State Roads Commission is "entitled to the compensation provided in the State budget." §8-212(c) of the Transportation Article ("TR" Article). From July 1, 1973 to July 1, 1989, commissioners were paid $4500 per year. Section 3 of the Fiscal Year 1990 budget bill, Chapter 14 of the Laws of Maryland 1989, raised that annual compensation to $4700.

For the reasons detailed below, we conclude as follows:

1. Members of the State Roads Commission are "public officers," whose compensation may not be increased during their terms.

2. The four commissioners who began new terms in October 1989 may receive $4700, the increased compensation provided for in the Fiscal Year 1990 budget bill, but the three commissioners whose terms expire in 1992 may not be paid more than $4500 per year.

3. Administratively, there is no way that the Department can increase the present compensation of commissioners.

4. The only possible legislative solution to this problem is to amend TR §8-212(b) to eliminate the terms of the regional commissioners or to set the terms in excess of four years.

I

Commissioners Are Public Officers

Article III, §35 of the Maryland Constitution provides that the salary or compensation of a "public officer" may not be increased or diminished during his or her term of office, "except those whose full term of office is fixed by law in excess of 4 years." The purpose of this provision 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." 70 Opinions of the Attorney General 177, 178 (1985). See Comptroller v. Klein, 215 Md. 427, 436, 138 A.2d 648 (1958). See also, e.g., 60 Opinions of the Attorney General 823 (1975). The "prophylactic" purpose of Article III, §35 must be given effect even in situations like that presented in your letter, where the goals underlying the proposed increase are entirely appropriate. 70 Opinions of the Attorney General at 178.[1]

Members of the State Roads Commission serve four-year terms. TR §8-212(b). Hence, the only question to be resolved is whether commissioners are "public officers." If so, the prohibition in Article III, §35 applies to them.

In 30 Opinions of the Attorney General 132, 133 (1945), the Attorney General concluded that "[t]here can be no question but that a member of the State Roads Commission holds an office of trust and profit ...."[2] At that time, the statutory powers and duties of the Commission were much more extensive than they are now. See former Article 89B, §§53 to 65.[3] Nevertheless, we are convinced that the conclusion reached in the 1945 opinion is still correct and that the commissioners are public officers under the standards enunciated by the Court of Appeals.

Members of the State Roads Commission exhibit many of the traditional indicia of public officers. See Board of Supervisors of Elections v. Attorney General, 246 Md. 417, 439, 229 A.2d 338 (1967). The posts are created by law, TR §§8-210 and 8-211; their duties are continuing; the positions have definite terms, TR §8-212(b); and commissioners are required to take the oath demanded of persons elected or appointed to offices of profit or trusts, TR §8-212(a). Most importantly, the Commissioners exercise "some of the sovereign powers of government for the benefit of the public." Duncan v. Koustenis, 260 Md. 98, 105, 217 A.2d 547 (1970).

Although many of the commissioners' duties under prior law have been transferred, the State Roads Commission still retains significant powers over the exercise of "quick-take" condemnation. Article III, §40B of the Constitution provides that:

    The General Assembly shall enact no law authorizing private property to be taken for public use without just compensation, to be agreed upon between the parties or awarded by a jury, being first paid or tendered to the party entitled to such compensation, except that where such property in the judgment of the State Roads Commission is needed by the State for highway purposes, the General Assembly may provide that such property may be taken immediately upon payment therefor to the owner or owners thereof by said State Roads Commission, or into Court, such amount as said State Roads Commission shall estimate to be of the fair value of said property, provided such legislation also requires the payment of any further sum that may subsequently be awarded by a jury.

(Emphasis added.) These constitutional powers are also vested by statute exclusively in the commissioners. See TR §§8-218, 8-302(b), 8-318 through 8-331, and 8-334 through 8-339. Moreover, TR §2-103(f) and (g) preclude the Secretary of Transportation from transferring these powers or from exercising them in the first instance. The power of condemnation thus conferred upon the commissioners is a "prerogative of sovereignty." Riden v. Philadelphia, B. & W. R.R. Co., 182 Md. 336, 339, 35 A.2d 99 (1943). In light of this exercise of the State's sovereignty, the commissioners unquestionably are public officers.

II

Applicability of the Fiscal Year 1990 Pay Increase

The Fiscal Year 1990 budget bill, Chapter 14, purported to increase the pay of all seven regional commissioners from $4500 to $4700. It became law April 4, 1989 and took effect July 1, 1989. A few months later, on October 10, 1989, the Governor approved the appointment of four commissioners pursuant to TR §8-211(b). For these four officers, the increased compensation was fixed before the beginning of their terms. Thus, these commissioners may receive the $4700 specified in the budget.

However, the terms of the remaining regional members of the Commission do not expire until 1992. If these commissioners were to receive the additional $200 specified in the budget bill, their compensation would be increased in violation of Article III, §35 of the Constitution. Thus, it is our opinion that these commissioners may not be paid more than $4500. If a vacancy should occur in one or more of these positions, the new appointee may receive the increased amount. See Comptroller v. Klein, 215 Md. 427, 138 A.2d 648 (1958).

III

Further Steps to Increase The Pay of The Commissioners

At the present time, the Constitution would prohibit any further administrative action to increase the pay of the commissioners. The two most common legislative methods of obviating an Article III, §35 problem are to alter the duties of the officer in question, to convert the position from that of an "officer" to that of an "employee"; or to eliminate the term or extend it in excess of four years.

We do not recommend the first approach in the present case, because the key duties of the commissioners are set forth in the Constitution and cannot be changed by legislative enactment. However, the General Assembly may eliminate the term of the commissioners to provide that they serve at will. Or, in the alternative, the terms of members can be extended to a period in excess of four years. In either case, once legislation of this kind has taken effect, the Constitution would not bar future pay increases for commissioners.

                                        J. Joseph Curran, Jr.
                                        Attorney General

                                        Robert A. Zamoch
                                        Assistant Attorney General

Jack Schwartz
Chief Counsel
Opinions & Advice

[1] The prohibition in Article III, §35 applies so frequently that the manual used by bill drafters contains standard language to prevent the grant of salary increases to incumbent officers. 1989 Legislative Drafting Manual at 65-66.

[2] The 1945 opinion went on to note of a commissioner that: "He takes the oath of office, his pay, tenure and duties are provided by the Legislature, and his duties are those of trust and responsibility, as an executive of the State government. He is certainly a public officer." 30 Opinions of the Attorney General at 133.

[3] In 1970 many of these functions were transferred to the State Highway Administration. See Chapter 526, Laws of Maryland 1970.