Can a Maryland public drainage association manager also hold another paid government office at the same time?

Plain-English summary

The County Attorney for Worcester County, on behalf of the county commissioners, asked the Attorney General whether a public drainage association manager holds an "office of profit" within the meaning of Article 35 of the Maryland Declaration of Rights, which bars a person from holding more than one office of profit at the same time. The question mattered because some drainage association managers also held other positions, such as membership on a soil conservation district board, that were themselves considered offices of profit.

The opinion concluded that a drainage association manager does hold an office of profit. Applying the standard two-step test, first whether the position is a public "office" as distinct from mere employment, and second whether that office is "of profit," the opinion found the manager position satisfied both. It was created by statute with continuing duties, carried genuine sovereign powers such as condemning rights of way and levying drainage taxes, and Article 25, §94 entitled managers to negotiated "reasonable compensation" for their service, which under existing Maryland case law was enough to make it an office "of profit" even for managers who personally agreed to waive their pay. The opinion emphasized that the legal entitlement to compensation, not whether a particular officeholder actually accepted it, controls the analysis, so a manager who volunteered to serve without pay still held an office of profit and remained barred from simultaneously holding a second one.

Currency note

This opinion was issued in 1991 and interpreted Article 25 of the Maryland Code and Article 35 of the Maryland Declaration of Rights as they then existed. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis, including possible recodification of Article 25's drainage association provisions. Treat this page as historical context, not current legal advice. Verify the current codification of these drainage association provisions and current dual-office-holding case law before relying on any specific rule described here.

Common questions

Did serving as a public drainage association manager count as holding a government "office" in Maryland?
According to this 1991 opinion, yes. The Attorney General found the position was created by statute, involved continuing (not occasional) duties, and carried real sovereign powers, including the power to condemn rights of way for drainage improvements and to levy drainage taxes, which was enough to satisfy the legal test for a public office.

Could a drainage manager avoid being an "office of profit" by simply not taking a salary?
No, according to the opinion. It concluded that Article 25, §94's entitlement to "reasonable compensation" made the office one of profit as a matter of legislative design, regardless of whether a particular manager chose to waive that pay, since Maryland case law treated the legal entitlement to compensation, not the individual's acceptance of it, as the controlling factor.

What was the practical effect of a drainage manager being classified as an office of profit?
The opinion explained that Article 35 of the Declaration of Rights bars a person from holding more than one office of profit at the same time, so a person who was already a drainage association manager could not simultaneously hold another office of profit, such as membership on a soil conservation district board, and the annual state budget bill included its own provision withholding a second office's compensation from anyone caught by this rule.

Background and statutory framework

Article 25, §70 through §94 of the Maryland Code established the framework for public drainage associations, giving assessed landowners the right to elect a three-person board of managers that operated as "a body corporate" with authority to hold and convey property and to sue and be sued, Article 25, §71, serving three-year terms without any oath requirement, Article 25, §78. The opinion found the board's condemnation power under Article 25, §80 and its tax-levying and bond-issuing powers under §81 and §82(a) satisfied the "sovereign power" element of the public-office test, citing the general criteria for a public office drawn from 59 Opinions of the Attorney General 154, 156 (1974), and Board of Supervisors of Elections v. Attorney General, 246 Md. 417 (1967), while noting that the Court of Appeals gives the greatest weight to the sovereign-power factor, per Duncan v. Koustenis, 260 Md. 98 (1970).

On the "of profit" question, the opinion relied on Howard County Metro Comm'n v. Westphal, 232 Md. 334 (1963), and Hetrich v. County Comm'rs, 222 Md. 304 (1960), for the rule that an office is one of profit if compensation is a legal entitlement of the position, regardless of whether the particular officeholder accepts it, reasoning that Article 25, §94's "reasonable compensation" language reflected a legislative expectation that managers would ordinarily be paid. The opinion also flagged that the General Assembly had separately addressed the practical consequence of holding two offices of profit at once: the annual budget bill, Chapter 3 (House Bill 650), §3, Laws of Maryland 1991, withheld appropriated compensation for a second office from anyone who became the holder of a second office of profit while already holding one, citing Truitt v. Collins, 122 Md. 526 (1914), for the related common law rule that accepting a second office of profit automatically vacates the first.

Citations and references

Statutes:

• Article 35 of the Maryland Declaration of Rights, barring a person from holding more than one office of profit at the same time
• Article 25, §70 of the Maryland Code, giving assessed landowners the right to elect a board of drainage association managers
• Article 25, §71, establishing the board of managers as a body corporate with power to hold property and to sue and be sued
• Article 25, §78, setting three-year terms for board members
• Article 25, §80, granting the board power to condemn rights of way for drainage improvements
• §81, granting the board power to levy drainage taxes
• §82(a), granting the board power to issue and sell bonds or notes
• Article 25, §94, entitling board members to negotiated "reasonable compensation" for their service
• Chapter 3 (House Bill 650), §3, Laws of Maryland 1991, the annual budget bill provision withholding compensation for a second office of profit

Cases:

• Truitt v. Collins, 122 Md. 526, 530, 89 A. 850 (1914), Maryland Court of Appeals decision on the common law rule that accepting a second office of profit vacates the first
• Board of Supervisors of Elections v. Attorney General, 246 Md. 417, 439, 229 A.2d 388, 230 A.2d 61 (1967), Maryland Court of Appeals decision setting out the criteria for determining whether a position is a public office
• Duncan v. Koustenis, 260 Md. 98, 105, 271 A.2d 547 (1970), Maryland Court of Appeals decision identifying the exercise of sovereign power as the most important characteristic of a public officer
• Howard County Metro Comm'n v. Westphal, 232 Md. 334, 339-40, 193 A.2d 56 (1963), Maryland Court of Appeals decision holding that legal entitlement to compensation, not actual acceptance, determines whether an office is one of profit
• Hetrich v. County Comm'rs, 222 Md. 304, 310, 159 A.2d 642 (1960), Maryland Court of Appeals decision applying the same legal-entitlement standard for offices of profit

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/1991/Volume76_1991.pdf (this opinion appears at printed pages 347-350 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 AND EMPLOYEES

Public Drainage Association Manager Holds Office of Profit

                          June 27, 1991

Edward H. Hammond, Jr., Esquire
County Attorney for Worcester County

   On behalf of the Worcester County Commissioners, you have

requested our opinion whether a public drainage association manager
holds an "office of profit" within the meaning of Article 35 of the
Maryland Declaration of Rights.

   For the reasons stated below, we conclude that a public drainage

association manager does hold an office of profit.

                                 I

                          Background

   Article 35 of the Declaration of Rights provides in pertinent part

that "no person shall hold, at the same time, more than one office of
profit, created by the Constitution or laws of this State ...." Your
question arises because certain public drainage association managers
have held other positions that are considered to be offices of profit - for
example, members of a soil conservation district. See 56 Opinions of
the Attorney General 329 (1971). Hence, if the position of manager of
a public drainage association is also an office of profit, simultaneous
service of this kind would not be permissible.1

   The analysis of "office of profit" questions has two steps: (1) Is

the position a public "office," as distinct from employment? (2) If so,
is the office one "of profit"? See 72 Opinions of the Attorney General
286, 288-89 (1987).

   1
      When a person who holds one office of profit accepts a second office

of profit, the first office is deemed to have been vacated. See, e.g., Truitt v.
Collins, 122 Md. 526, 530, 89 A. 850 (1914).

                                 II

                            "Office"

The criteria for determining a public office have been

summarized as follows:

          (1) The position was created by law and
      involves continuing and not occasional duties.

          (2) The holder performs an important public
      duty.

           (3) The position calls for the exercise of
      some portion of the sovereign power of the
      State.

          (4) The position has a definite term for
      which a commission is issued and a bond and an
      oath are required.

          (5) The position is one of dignity and
      importance.

59 Opinions of the Attorney General 154, 156 (1974). See Board of
Supervisors of Elections v. Attorney General, 246 Md. 417, 439, 229
A.2d 388, 230 A.2d 61 (1967). See also, e.g., 72 Opinions of the
Attorney General at 288; 65 Opinions of the Attorney General 285, 286
(1980).

   Not all of these criteria are of equal importance. In a recent

opinion, we discussed their comparative significance as follows:

      In terms of the weight be given these factors,
      the Court of Appeals has ascribed the least
      significance to the "dignity and importance"
      component. Somewhat greater importance is
      given to the oath requirement. But of these
      criteria, "the single most important characteristic
      of a public officer is that the 'public servant
      exercise in his own right some of the sovereign
      power of government for the benefit of the
      public.'"

72 Opinions of the Attorney General at 288 (citations omitted). See
Duncan v. Koustenis, 260 Md. 98, 105, 271 A.2d 547 (1970); 72
Opinions of the Attorney General 281, 283 (1987); 64 Opinions of the
Attorney General 255 (1979).

   Under Article 25, §70 of the Maryland Code, landowners

assessed for the cost of certain improvements have a right to elect a
board of three managers of a drainage association. The board of
managers is "a body corporate ... with the right to hold property and
convey the same, to sue and be sued, to adopt a seal and to alter it at
pleasure, and to exercise corporate powers." Article 25, §71. Members
of the board serve three-year terms. Article 25, §78. No oath is
required.

   The board of managers unquestionably exercises sovereign

powers. Under Article 25, §80, the managers have the power to
condemn rights of way for drainage improvements. They also levy
drainage taxes. §81. Moreover, they have the power to issue and sell
bonds or notes. §82(a).

   In our view, a manager of a drainage association holds a public

office.

                                III

                           "Of Profit"

   "Even if a position constitutes an 'office' under these tests, it will

not be an 'office of profit' within the meaning of Article 35 of the
Declaration of Rights unless compensation in the form of salaries, fees,
or the like attaches to the office." 72 Opinions of the Attorney General
at 289. See 60 Opinions of the Attorney General 121, 124 (1976); 24
Opinions of the Attorney General 618, 619 (1939); 11 Opinions of the
Attorney General 236 (1926).

   In considering whether an office is one "of profit," the Court of

Appeals and this office have focused on the legal entitlement to
compensation. That is, if the legislative body establishing the office
determined that compensation was ordinarily a benefit of the position,
the office was one of profit even if particular office-holders chose not to
accept the compensation. See Howard County Metro Comm'n v.
Westphal, 232 Md. 334, 339-40, 193 A.2d 56 (1963); Hetrich v. County
Comm'rs, 222 Md. 304, 310, 159 A.2d 642 (1960); 60 Opinions of the
Attorney General at 124.

   Under Article 25, §94, drainage association managers are to

receive a negotiated amount of "reasonable compensation": "For every
day spent in the discharge of their duties ..., each member of the board
of managers ... shall receive such reasonable compensation as shall be
agreed upon between the parties and the county commissioners."

   Although the question is a close one, we conclude that Article

25, §94 renders the office of drainage association manager one "of
profit," even if, as we understand is true of the officeholders in question,
members of a particular board of managers have agreed to forgo
compensation. In that section, the General Assembly determined that
the managers are entitled to "reasonable compensation," subject to a
negotiated agreement about the amount. The legislative expectation was
that some level of compensation would ordinarily be paid.

   In instances where managers of a public drainage association

agree to accept no compensation, their agreement is akin to the decision
of an officeholder to decline a specific level of compensation set in the
statute. Yet, this office has concluded, "an office of profit for which a
salary was provided by law would still be considered as such,
notwithstanding that the incumbent may have declined to accept the
emoluments to which he was entitled." 60 Opinions of the Attorney
General at 124.

                                IV

                           Conclusion

   In summary, it is our opinion that the position of member of the

board of managers of a public drainage association is an office of profit
within the meaning of Article 35 of the Declaration of Rights.2

                                               J. Joseph Curran, Jr.
                                               Attorney General

                                               Jack Schwartz
                                               Chief Counsel
                                               Opinions and Advice


   2
      We note that in the annual budget bill, the General Assembly seeks to

avoid potential problems under Article 35 of the Declaration of Rights by
providing that "if any person holding an office of profit ... is appointed to or
otherwise becomes the holder of a second office within the meaning of Article 35
of the Declaration of Rights, ... then no compensation or other emolument ...
shall be paid from any fund appropriated by this bill to that person for any
services in connection with the second office." Chapter 3 (House Bill 650), §3,
Laws of Maryland 1991. If a drainage association manager were to accept a
public office paid out of appropriated funds, this provision would apply.