Maryland Attorney General Opinion 98 OAG 051

Gen. 51] 51

EDUCATION

BOARD OF EDUCATION OF ANNE ARUNDEL COUNTY – SCHOOL
BOARD NOMINATING COMMISSION – ALL BOARD
MEMBERS APPOINTED BY THE GOVERNOR MUST BE
NOMINATED, SELECTED, AND STAND FOR RETENTION
REGARDLESS OF WHETHER THEY ARE SEEKING A FIRST
OR SECOND TERM

May 22, 2013
Andrew C. Pruski
President
Board of Education Anne Arundel County

On behalf of the Board of Education of Anne Arundel
County (“Board”), you have requested our opinion regarding § 3-
110 of the Education Article and its application to incumbent
Board members who wish to serve a second consecutive term.
Under § 3-110, the School Board Nominating Commission of
Anne Arundel County (“Nominating Commission”) nominates
candidates for any vacancy among the seats that are to be
appointed by the Governor. Md. Code Ann., Educ. (“ED”) § 3-
110(a)(2), (b)(5).1 The Governor then appoints one of the
candidates, and the appointed member runs to retain the seat in
the next general election. ED § 3-110(c)(1). You ask whether
this same process applies to incumbents who seek a second term
on the Board. You also ask us to explain the Governor’s role in
the reappointment process.
In our opinion, an incumbent Board member who seeks a
second term must be nominated for that term by the Commission
and appointed for that term by the Governor. After that, the
member must stand for retention at the next general election. The
Governor has the sole authority to appoint and reappoint the
Board’s eight non-student members. 2

1
Unless otherwise noted, all statutory references refer to the
current version of the Education Article, which is reflected in the 2008
Replacement Volume of the Annotated Code of Maryland and the 2012
Supplement.
2
The ninth member of the Board is a student member, who is
appointed through a separate process. See ED § 3-110(a)(2), (d). We
52 [98 Op. Att’y

I
Background
The process of becoming and being retained as a member of
the Board consists of three steps, each of which is set forth in a
different part of § 3-110 of the Education Article. The first step is
the nominating process, which is set forth in subsection (b). The
Nominating Commission “select[s] nominees to be recommended
to the Governor as qualified candidates for appointment to the
[Board].” ED § 3-110(b)(1)(ii). The Nominating Commission
holds at least two public hearings and submits to the Governor at
least two names for each vacant seat, unless there are fewer
applicants for a vacancy, in which case a single nominee will
suffice. ED § 3-110(b)(1)(iii) and (5). The Governor then appoints
one of the Commission’s nominees to the seat. ED § 3-110(a)(2).
Appointment is the second step in the process and is set forth in
subsection (a) of § 3-110.
The third step in holding board membership—standing for
retention before the electorate—is set forth in subsection (c).
After appointment, the board member begins to serve
immediately, but must stand for “approval or rejection of the
registered voters of the county at the next general election.” ED
§ 3-110(c)(1). The board member is placed on the ballot, without
opposition. ED § 3-110(c)(3)(ii). If the voters reject the board
member or the vote is tied, the position becomes vacant by
operation of law “10 days after certification of the election
returns.” ED § 3-110(c)(4). If the voters retain the board
member, he or she may complete the remainder of the five-year
term. ED § 3-110(c)(1); see also ED § 3-108(c) (establishing
five-year term).
You explain that two incumbent board members plan to seek
second consecutive terms and that questions have arisen as to
whether they must go through the statutory nomination and
election process. The provision that governs reappointments is
§ 3-110(c)(2): “A member of the county board is eligible for
nomination and reappointment for a second consecutive term in
accordance with the provisions of subsections (a) and (b) of this
section.” As outlined above, subsections (a) and (b) establish the
nominating and appointment process, but not the election process.

do not address the process by which the Board’s student member is
appointed.
Gen. 51] 53

At least one member of the Nominating Commission has
apparently expressed the view that a board member who seeks a
second consecutive term is not subject to the Commission’s
nomination process. That view is contrary to the advice that the
Board received from its counsel.3 The Board’s counsel noted that
§ 3-110(c)(2) explicitly makes the nomination and appointment
process set forth in § 3-110(a) and (b) applicable to a
reappointment. The Board’s counsel also concluded that § 3-
110(c)(2) does not make the election requirement similarly
applicable to reappointed members. Board counsel thereby
concluded that if the member is retained and then seeks a second
term, the member must repeat the nomination and appointment
process pursuant to § 3-110(c)(2).

II
Analysis
The interpretation of every statute begins with ascertaining
legislative intent. See, e.g., Wal-Mart Stores, Inc. v. Holmes, 416
Md. 346, 359 (2010). The starting point, and often the ending
point, of this inquiry is the plain language of the statute. Id. But
the plain language of a statute is not to be read in a vacuum.
Instead, “the plain language must be viewed within the context of
the statutory scheme to which it belongs, considering the purpose,
aim, or policy of the Legislature in enacting the statute.”
Employees Retirement System of the City of Baltimore v. Dorsey,
430 Md. 100, 113 (2013) (citations and quotation marks omitted).
The statutory provision we interpret here is ED § 3-
110(c)(2), which provides that a member “is eligible for
nomination and reappointment for a second consecutive term in
accordance with the provisions of subsections (a) and (b) of this
section.” Because subsections (a) and (b) lay out the nomination
and appointment process, the plain language of (c)(2) requires
that a board member who seeks a second term must be re-
nominated by the Nominating Commission and re-appointed by
the Governor. That much is clear.
Whether a re-appointed member must stand for retention
“at the next general election” is less clear. As Board counsel
noted, the statute does not appear to resolve the issue; § 3-
3
At our request, and in compliance with our policy, you provided
the opinion of Board counsel on the issues that are the subject of this
opinion.
54 [98 Op. Att’y

110(c)(2) refers back to subsections (a) and (b), which address
nomination and appointment, but not election. In our view,
however, the answer can be found by comparing the current
version of § 3-110(c)(1) and (2) to prior versions of that law.
A. The 2007 Legislation
Until 2007, the statute governing membership on the Board
called for a board appointed solely by the Governor. See former
ED § 3-108(a) (2006 Repl. Vol.). The General Assembly
changed that procedure in 2007. While the Governor retained the
right to appoint the members, the amended statute established the
Nominating Commission and the process by which the Governor
selects from the Commission’s nominees. See 2007 Md. Laws,
ch. 454, codified at ED § 3-110(b).
The 2007 law also added the requirement that appointed
board members stand for a retention election, but it did so through
the enactment of separate provisions for first-term and second-
term board members. Subsection (c)(1) applied to “the initial
appointment of a member” and required the member to stand for
retention to complete his or her “first term.” 2007 Md. Laws, ch.
454, codified at ED § 3-110(c)(1). Subsection (c)(2), by contrast,
applied specifically to second terms: “A member . . . may serve
for a second consecutive term subject to the approval of or
rejection by the registered voters of the county at the next general
election.” Id., codified at ED § 3-110(c)(2). Subsection (c)(2) did
not, however, refer back to subsections (a) and (b), with the result
that a member seeking a second term was not required to go
through the nomination and appointment process. So, the process
enacted in 2007 required three steps for a new member’s first
term (i.e., nomination, appointment, retention election) but only
one step—the retention election—for a second term.4

4
The 2007 legislation included uncodified language providing a
separate appointment process for “a member serving a first term on the
Anne Arundel County Board of Education on or before June 30, 2008.”
Such a member:
(a) (1) shall be eligible to be included in the list
of nominees submitted by the School Board
Nominating Commission of Anne Arundel
County to the Governor to serve a second term
when the first term ends; and
(2) may be reappointed by the Governor to
the Anne Arundel County Board of Education
subject to the approval or rejection of the
Gen. 51] 55

B. The 2011 Amendments
The General Assembly changed the procedure again in 2011
and gave the statute its current form. See 2011 Md. Laws, chs.
177, 178. As we see it, the amendments enacted in 2011 effected
two principal changes. First, the amendment added the re-
nomination and reappointment process for the second term that is
currently set forth in § 3-110(c)(2). The amendment also altered
the provisions relating to the election requirement. As amended,
the statute no longer describes the retention election as a
condition of the member’s completion of his or her “first term,”
no longer refers to any election temporally as the general election
“following the initial appointment of a member,” and no longer
contains a separate provision applicable only to a second term.
Instead, the statute contains one election provision that is not
specific to either the first or the second term. In relevant part, the
statute now provides:
Following the appointment of a member of
the [Board] by the Governor, a member may
serve for the remainder of the member’s term
. . . subject to the approval or rejection of the
registered voters of the county at the next
general election.
ED § 3-110(c)(1). It is this 2011 amendment that we construe
here.
When construing the “plain language” of a statute, we are to
give effect “to every word, clause, and sentence.” Fisher v.

registered voters of the county at the next general
election; and
(b) as provided in § 3-108(c)(3) of the Education
Article, is not eligible to serve another con-
secutive term following the second term by a
reappointment.
2007 Md. Laws, ch. 454, § 2. Our Office has previously interpreted
this uncodified provision to mean that board members serving as of
June 30, 2008, need not be re-nominated by the Commission to serve a
second term but are instead automatically placed on the list of
nominees submitted to the Governor for appointment. If appointed, the
member must still stand for retention. See Letter of Assistant Attorney
General Sandra Benson Brantley to Joshua C. Greene, Chair, Anne
Arundel County School Board Nominating Commission (April 8,
2010) (“2010 Advice Letter”).
56 [98 Op. Att’y

Bethesda, 221 Md. 271, 277 (1960). By way of a corollary to that
rule, just as every word is presumed to have been used for a
purpose, “every word excluded from a statute must be presumed
to have been excluded for a purpose.” See 2A N. Singer & J.
Singer, Sutherland Statutes and Statutory Construction § 46.6 (7th
ed. 2007); see also, e.g., Briggs v. State, 413 Md. 265, 277 (2010)
(giving weight to the Legislature’s use of a particular word
“without any qualification”).
Read in isolation, the General Assembly’s removal of the
separate election provision for second-term members would seem
to be strong evidence that the General Assembly intended to
eliminate the requirement that second-term members stand for
retention. But other aspects of the 2011 amendments lead us to
the conclusion that removal of the second-term election provision
was part of a larger effort to make the election requirement
applicable to all board members in the same manner. In this
respect we find it significant that the General Assembly deleted
the words “initial” and “first” from the election provision that had
been applicable only to first-term members. Rather than have
separate election provisions for first- and second-term members,
the statute now has a single provision—subsection (c)(1)—that
applies to the election of all board members, whether they are
seeking their first term or their second.
To the extent that the current statutory language remains
ambiguous on this point, the legislative history, including the
fiscal and policy note prepared by the Department of Legislative
Services for the General Assembly, confirms the interpretation we
reach. See, e.g., Washington Suburban Sanitary Comm’n v.
Phillips, 413 Md. 606, 629-30 (2010) (inferring legislative intent
from the statutory language and the fiscal note). The sponsor of
Senate Bill 78, Senator Simonaire, submitted written testimony
stating that “[t]he bill was drafted to address the problems
documented on April 8, 2010 in the Attorney General’s letter in
regards to the reappointment process for a 2nd term.” See S.B.
78, 2011 Leg., Reg. Sess., Hearing Before the Senate Educ.,
Health and Envt’l Affairs Comm. (Feb. 9, 2011) (written
testimony of Sen. Bryan W. Simonaire) (“Simonaire Testimony”).
Senator Simonaire testified that the bill was to provide:
Corrective language to ensure the original
intent of the 2007 modification to the Anne
Arundel County School Board selection
process, specifically:
Gen. 51] 57

a. Current law only requires a retention vote
of the people to be reappointed to a 2nd term
without the Governor’s action (see AG
letter).

b. Ensure that a school board member
seeking a 2nd term is first re-appointed by
the Governor and then elected through the
existing retention election process of the
people.

Id. The April 8, 2010 advice letter—described in note 4 above—
had concluded, among other things, that a board member who had
been nominated and appointed under the process established in
2007 “may serve a second consecutive term subject only to voter
approval.” 2010 Advice Letter at 4. The purpose of the bill, then,
was to “[a]dd language to require the Governor to reappoint the
school board member when a 2nd term is sought by an incumbent
member.” Simonaire Testimony at 1.
A co-sponsor of House Bill 220—the House version of
Senate Bill 78—provided similar written testimony about the
legislation’s “corrective” purpose. Delegate McConkey testified
that the 2007 legislation was “ambiguous on the process of
reappointment”:
The 2007 change set up a process of vetting
prospective members to the school board and
making nominations to the Governor for
appointment. Unfortunately, under the
current interpretation reappointment is
automatic. HB 200 would require members
seeking reappointment to go back through the
process.
See H.B. 220, 2011 Leg., Reg. Sess., Hearing Before the House
Ways and Means Comm., (Feb. 17, 2011) (written testimony of
Del. Tony McConkey) (emphasis in original). Delegate
McConkey explained the policy rationale behind the proposed
amendments:
The nominating commission is made up of
representatives of stakeholders in the public
school system. The nominating process is
the only means the community has to hold
58 [98 Op. Att’y

school board candidates accountable;
therefore, it is important that after four years,
candidates for reappointment go back
through the process, to share their
experiences and their vision for their second
term.
Id.
The Floor Reports and Fiscal and Policy Notes all confirm
that the purpose of the 2011 legislation was to provide for a single
nominating, appointment, and election process that would be
applicable to members seeking first or second terms:
This bill specifies that a member of the Anne
Arundel County Board of Education must be
appointed by the Governor from a list of
nominees submitted by the School Board
Nominating Commission, subject to election
by the registered voters of the county at the
general election following the member’s
nomination and appointment, regardless of
whether that member is serving a first or
second term.
Fiscal and Policy Note (Revised) for Senate Bill 78 (2011) at 1;
see also Senate Educ., Health and Envt’l Affairs Comm., Floor
Report, Senate Bill 78 at 1 (2011) (same); House Ways and
Means Comm., Floor Report, House Bill 220 at 1 (2011) (same).
In sum, the legislative history makes clear that the General
Assembly enacted the 2011 legislation to make the nomination
and appointment steps applicable to second terms, and not to
change the requirement that both five-year terms be subject to the
approval of the voters of the County. The provisions for the
nomination and appointment process, § 3-110(a), (b), and for the
election and re-election process, § 3-110(c)(1), now apply to all
Board members—whether they are seeking a first or second
term—and require that they be nominated (or re-nominated) by
the Nominating Commission, appointed (or re-appointed) by the
Governor, and retained at the next general election.5

5
The 2011 legislation did not carry forward the uncodified
language in the 2007 legislation, which we had interpreted, in the 2010
Advice Letter, to mean that Board members serving as of June 30,
2008, need not be re-nominated by the Commission to serve a second
term. Given that Board members serve five-year terms, see ED § 3-
Gen. 51] 59

III
Conclusion
In our opinion, an incumbent Board member who seeks a
second term must be nominated for that term by the Commission
and appointed for that term by the Governor. After that, the
member must stand for retention at the next general election. The
Governor has the sole authority to appoint and reappoint eight of
the Board’s eight non-student members.
Douglas F. Gansler
Attorney General

Elizabeth M. Kameen
Assistant Attorney General

Adam D. Snyder
Chief Counsel,
Opinions & Advice

108(c)(1), any Board member who was sitting as of June 30, 2008—
and, thus, would have been entitled to automatic nomination under the
2007 uncodified language—has already gone through the appointment
process for a second term. Going forward, then, all Board members
must be nominated, be appointed, and stand for retention in the manner
set forth in the codified statute.