Maryland Attorney General Opinion 101oag023

Gen. 23] 23

PUBLIC OFFICERS AND EMPLOYEES
INCOMPATIBILITY OF OFFICES – COUNTY COMMISSIONER AND
PUBLIC SCHOOL EMPLOYEE
July 25, 2016
Rochelle S. Eisenberg
Pessin Katz Law, P.A.
On behalf of the Board of Education of Carroll County
(“school board”), you have asked for our opinion on two questions
that have arisen out of the election of Dennis E. Frazier, a public
school employee, to the Board of County Commissioners of Carroll
County. Your first question is whether “a county commissioner,
who is also a public school employee, may vote on matters
impacting the local board of education,” particularly school
funding matters. This question does not raise an issue of State law.
Instead, county law—specifically, Carroll County’s ethics
ordinance—controls County officials’ duties to avoid conflicts of
interest. It is our policy not to construe local laws in our opinions,
and therefore we offer no opinion on that issue.
Your second question, which does raise State law issues, is
whether there is an “incompatibility of office” between the
positions of county commissioner and school board employee
under the common-law doctrine that precludes a person from
serving in public positions that are incompatible with each other.
You have provided us with your opinion that the two positions are
not incompatible under the common law. We agree that the
positions of commissioner and public school teacher are ordinarily
not incompatible, but in Carroll County the inquiry is complicated
by the fact that the commissioners also serve as ex officio,
nonvoting, members of the school board. See Md. Code Ann.,
Educ. (“Educ.”) § 3-401(a)(3). That circumstance requires an
analysis of whether Mr. Frazier’s status as an ex officio member of
the school board is incompatible with his service as a public school
teacher. Although that is a closer question, we conclude that the
positions of ex officio member of the school board and employment
by the school board as a teacher are also not incompatible.
24 [101 Op. Att’y

I
Background
As we have previously observed, the county boards of
education “are granted broad authority to control all educational
matters that affect the counties.” 75 Opinions of the Attorney
General 172, 179 (1990); see also Educ. § 4-101(a) (providing that,
subject to certain provisions specific to Prince George’s County,
“educational matters that affect the counties shall be under the
control of a county board of education in each county”).1 The local
boards’ powers and duties include, among other things, the power
to appoint and set the salaries of school employees, § 4-103,
determine the educational policies of the county school system,
§ 4-108(3), and prepare an annual budget, § 5-101. Although the
statutory provisions that set forth these powers and duties apply
equally to all county boards, each board is subject to county-
specific statutory provisions that govern its make-up. Some boards
are appointed; they are filled according to the provisions in Part II
of Title 3, Subtitle 1 of the Education Article. See § 3-108. Others,
including the Carroll County board, are elected; they are filled
according to the provisions in Part III of Subtitle 1. See § 3-114.
Although the Carroll County school board is characterized as
an elected board, Educ. § 3-114(a)(3), not all of its members are
elected. The five voting members are elected to the board, § 3-
401(c), as is the nonvoting student representative, who is elected
by the high school students of the county. § 3-401(f). But the board
also includes all of the county commissioners, who are not elected
to the board, but instead serve as nonvoting, ex officio members.2
§ 3-401(a)(3).
Mr. Frazier was elected to the Board of County
Commissioners in 2014 and began his term of office on December

1
Unless otherwise indicated, all statutory references are to the
Education Article, 2014 Replacement Volume and 2015 Supplement.
2
In this opinion, we use the term “ex officio” to refer to a member
who holds his position by virtue of holding another office. See 61
Opinions of the Attorney General 152, 163 (1976) (stating that “the ex-
officio position must arise directly from holding the first office”); see
also 99 Opinions of the Attorney General 242, 248 n.6 (2014) (discussing
different uses of the term). Until July 1, 2014, the local boards in
Allegany County and Garrett County also had a county commissioner-
member who served ex officio. See 2014 Md. Laws, ch. 295. To our
knowledge, the Carroll County board is the only board on which all of
the county commissioners serve ex officio.
Gen. 23] 25

3, 2014. At the time he was elected, Mr. Frazier was a teacher
within the Carroll County Public School System. It is our
understanding that Mr. Frazier continues to hold that position
today. The questions you raise relate to whether Mr. Frazier’s
employment as a public school teacher is incompatible with his
service as a county commissioner or as an ex officio member of the
Carroll County school board.
II
Analysis
A. Whether Mr. Frazier’s Teaching Position in the Carroll
County School System Is Incompatible with His Service as
a County Commissioner
You provided your opinion that Mr. Frazier’s employment by
the school board is not incompatible with the office of county
commissioner. Your opinion is based in part on a letter of advice
from the Office of Counsel to the General Assembly on the
question of whether a teacher or administrator employed by a
school board could run for the office of county commissioner. See
Letter from Kathryn M. Rowe, Assistant Attorney General, to Hon.
George C. Edwards (Nov. 1, 2013). We agree with Ms. Rowe’s
explanation of the applicable principles and agree with your
conclusion that the two offices are not ordinarily incompatible.
The Court of Appeals has summarized the common-law test
of incompatibility as follows:
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 to set the salary of the
other.
Hetrich v. County Comm’rs of Anne Arundel County, 222 Md. 304,
308 (1960); see also Lilly v. Jones, 158 Md. 260, 266 (1930). In
Maryland, the doctrine applies both to public employees and to
public office-holders and requires a fact-specific inquiry. Howard
County Metro. Comm’n v. Westphal, 232 Md. 334, 342-43 (1963);
see also 85 Opinions of the Attorney General 218, 220-21 (2000)
(summarizing the common law). Ordinarily, an incumbent of a
26 [101 Op. Att’y

public position who accepts a second public position that is
incompatible with the first is deemed to have chosen the second
position and vacated the first. Hetrich, 222 Md. at 308.
As you have pointed out, Mr. Frazier’s teaching position does
not conflict with the office of commissioner by virtue of
subordination to, or supervision by, that office; county governing
bodies lack the power to appoint, remove, or supervise school
board employees. And while the county commissioners ultimately
approve the local school system’s budget and fund it in part, the
county commissioners do not set individual teacher salaries. Mr.
Frazier’s two positions thus do not fall under the Hetrich court’s
example of a conflict that would create an incompatibility.
Addressing a similar issue, the Attorney General of Kansas
concluded that the incompatibility doctrine did not bar a local
school board employee from serving on the state board of
education because the state board did not supervise the employee
and did not set either the employee’s salary or the employee’s
duties. Kan. Att’y Gen. Op. No. 2007-43; 2007 WL 4466583,*3
(Dec. 17, 2007).3
That leaves the question of whether another type of conflict
makes the positions incompatible under Hetrich, as might be the
case if Mr. Frazier’s employment by the school board entailed the
preparation of the school board’s budget. See Irvington Mun.
Council v. Steele, 95 N.J.A.R.2d (EDU) 123; 1994 WL 975083,
*16 (N.J. Adm. Dec. 19, 1994) (finding “a clear conflict for a
school business administrator who develops the budget for the
school district to review that same budget in his capacity as mayor
and chair of the [town’s] Board of School Estimate”). Here, it does
not appear that Mr. Frazier’s position as a teacher involves him in
the school board’s preparation of its budget or any other school
funding matters, and no other type of conflict has been brought to
our attention. Based on our understanding of Mr. Frazier’s
responsibilities as a public school teacher, we agree that his
teaching position is not incompatible with his service as a county
commissioner.
Our conclusion on this point, of course, does not fulfill your
request for guidance on whether Mr. Frazier is barred from voting

3
Although the Kansas Attorney General’s opinion is helpful in
analyzing common law incompatibility, the conclusion it reaches would
likely be foreclosed by Maryland statutory law, which prohibits an
“individual who is subject to the authority of the [State] Board” from
being appointed to the Board. See § 2-203(b)(3)(i).
Gen. 23] 27

on matters affecting a local board of education. The incom-
patibility doctrine addresses whether someone may hold both
positions, not whether someone who properly does so has the duty
under ethics laws to recuse himself from some matters. As might
be the case with any commissioner, a topic that comes before the
commissioners could conceivably be so specific as to affect Mr.
Frazier’s personal interests and thereby raise questions under the
county’s ethics ordinance.
In 1987, the Attorney General of North Carolina reached the
same conclusion when asked whether a school principal, serving
also as a county commissioner with funding power over the school
system, occupied incompatible offices. See 57 N.C. Op. Att’y Gen.
33; 1987 WL 269244, *2 (1987). The Attorney General explained
that he was “not prepared to declare [the positions] incompatible”
under the common law, but cautioned that “a school employee
serving on a board of county commissioners having funding
responsibility for his school system should constantly bear in mind
that his duty is to vote the public’s interest as he perceives it, not
his own interests.” Id. The Attorney General elaborated on the
potential conflicts that might arise:
Circumstances when the tension between the
school employee’s interests and the public’s
interest would be heightened include specific
votes on the parts of a budget request
providing salary supplements and specific
votes on other parts of the budget requests
directly relating to the employee. If a school
employee determines that his personal interest
predominates over, or might appear to
predominate over, the public’s interest in a
given situation, the school employee should
request to be excused from voting.
Id. Ultimately, however, whether a local official must recuse
himself from a matter is governed by local ethics laws, which, in
accordance with our longstanding policy, we do not construe.4 See,
e.g., 88 Opinions of the Attorney General 145, 150 (2003).

4
The interpretation of the county’s ethics ordinance lies with the
Carroll County Ethics Commission. Under that ordinance, the County
Ethics Administrator is to respond within 30 days to requests for
advisory opinions on the application of the ethics rules, and “[i]f the
28 [101 Op. Att’y

B. Whether Mr. Frazier’s Teaching Position Is Incompatible
with His Ex Officio Status as a Nonvoting School Board
Member
Our conclusion that Mr. Frazier’s employment as a public
school teacher is not incompatible with his service as a county
commissioner does not end the inquiry. Because all of the Carroll
County Commissioners are also nonvoting ex officio members of
the local school board, § 3-401(a)(3), we must also address whether
Mr. Frazier’s ex officio position on the board is incompatible with
his job as a teacher. Two circumstances complicate that analysis.
First, § 3-114(f) of the Education Article could be read to make the
positions statutorily incompatible. Second, as to the common law
doctrine of incompatibility, there is little or no Maryland precedent
on the duties and loyalties of ex officio members of boards.
Because the General Assembly may enact legislation altering the
common law of incompatibility, see 85 Opinions of the Attorney
General at 224, we will start by addressing statutory
incompatibility.
1. Statutory Incompatibility
Two provisions of the Education Article address the question
of when an individual is prohibited from serving on a county board
of education. Section 3-108(b)(2) applies to appointed school
boards; it provides that “[a]n individual who is subject to the
authority of the county board may not be appointed to or serve on
the county board.” That provision does not apply here because the
Carroll County board is an elected board. Section 3-114(f) applies
to elected school boards:
An individual subject to the authority of the
county board may not serve as a member of
the county board. At the time of filing a
certificate of candidacy for election to a
county board, a person shall certify to the
local board of supervisors of elections
whether or not the person is subject to the
authority of the county board. The Governor

Ethics Administrator is unable to respond within 30 days, then the
County Attorney will respond, or in the absence of the County Attorney,
the Ethics Commission will respond.” Carroll County Code of
Ordinances § 34.06(B). Further, under § 34.04, “[i]n the event that the
County Attorney is unable to provide legal advice due to a conflict or a
perceived conflict, the Ethics Commission may request through the
County Attorney outside counsel . . . .”
Gen. 23] 29

may not issue a commission of election to a
person who has certified affirmatively and
who is elected to a county board until the
member-elect offers proof that the member-
elect is no longer subject to the authority of
the county board.
Taken out of context, the first sentence of § 3-114(f) would seem
to prevent a public school teacher from serving on an elected local
board; it plainly prohibits anyone who is subject to a school board’s
authority from serving as a school board member in any capacity.
However, statutes must be read in context. Even when the meaning
of a provision seems plain, it is to be read not by reference to “the
isolated section alone,” but rather “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’
Ret. Sys. of City of Baltimore v. Dorsey, 430 Md. 100, 113 (2013)
(quoting cases); see also Robey v. State, 397 Md. 449, 454 (2007)
(noting that a court “may find useful the context of a statute, the
overall statutory scheme, and archival legislative history of
relevant enactments”).
The surrounding provisions in subsection (f) suggest strongly
that the prohibition is directed to school board members who are
elected to that office. The sentence immediately following the
prohibition requires a person to disclose, “[a]t the time of filing a
certificate of candidacy for election to a county board,” whether the
person is subject to the authority of the county board. If the person
certifies that he is subject to the county board’s authority, the
Governor may not issue a “commission of election” to the
“member-elect” until he offers proof that he is no longer subject to
the authority of the county board. Subsection (g) similarly provides
that the “election of the county boards shall be held” as provided in
Subtitles 2 through 14 of this title [i.e., the county-specific
provisions for elected boards] and the Election Law Article.”
Educ. § 3-114(g). In addition, the statute itself appears in that Part
of Title 3, Subtitle 1 dealing with elected boards, suggesting that
only those members elected to the boards were the object of
legislative concern in § 3-114. As a whole, then, the “thrust of the
entire statute,” Robey, 397 Md. at 455, is directed at the eligibility
of candidates for the elected positions on school boards and not at
members placed on those boards by other means.
The legislative history confirms that § 3-114 applies only to
candidates for election to a school board and the elected members.
30 [101 Op. Att’y

Carroll County’s board became an elected board in 1974. See 1973
Md. Laws, ch. 599 (adding a new § 35B to the “Public Education”
title of what was then Article 77). In the subsection that specified
the mode of nomination of school board candidates, the new statute
provided: “No person subject to the authority of the Board of
Education of Carroll County may be certified as a candidate.” Art.
77 § 35B(b)(2) (emphasis added). Later, after Article 77 had been
recodified into the Education Article, the General Assembly
amended the law governing the election of school board members
for purposes that included “specifying that the nomination and
election of [school board candidates] conform to the . . . Election
Code.” 1982 Md. Laws, ch. 338. A summary in the bill file for
that legislation indicates that the specific purpose of the
amendments was to ensure that elections to local school boards
were governed by the same election code provisions that govern
how other “elected officials are elected.” See “House Bill 281”
(summarizing legislation), Bill file on H.B. 281, 1982 Leg., Reg.
Sess. (1982); see also Patton v. Wells Fargo, 437 Md. 83, 99-100
(2014) (relying on similar documents found in a bill file). Indeed,
the current Election Law Article provisions applicable to the
election of school board members requires the election board to
“determine whether the candidate qualifies as provided under Title
3 of the Education Article and Title 5 of this [Election Law]
article.” Md. Code Ann., Election Law (“EL”) § 8-803(a). The
focus of all of these legislative enactments is on how members of
local school boards are elected to their position, not on those
members who sit on the board in an ex officio capacity.
Finally, since 1982, the General Assembly has provided for
most elected boards an appointed, often nonvoting, student
member. See, e.g., Educ. § 3-201(b)(2). We see no indication that
the General Assembly intended to render the various boards’
student members—who are obviously “subject to the authority of
the county board”—ineligible for the positions assigned to them in
the county-specific provisions. Instead, the legislative history
confirms what the statutory context already suggests: the first
sentence of what is now § 3-114(f) applies to candidates for, and
elected members of, elected school boards and not to other
members, such as appointed, student, and ex officio members. We
therefore conclude that § 3-114(f) of the Education Article applies
only to the elected members of the school board.
2. Common-Law Incompatibility, as Applicable to Ex
Officio Positions
Our conclusion that § 3-114(f) does not apply to the non-
elected ex officio board members means that the positions of ex
Gen. 23] 31

officio board member and teacher are only incompatible if they are
incompatible under the common law. As an initial matter, we think
that service as a public school employee and as a voting member of
the school board would likely be incompatible. Although no
Maryland appellate decisions have addressed the issue, courts in
other states have routinely found service as a school board
employee to be incompatible with service as a voting member of
the school board. See, e.g., Unified Sch. Dist. No. 501, Shawnee
County, Kan. v. Baker, 269 Kan. 239, 250-52 (2000) (holding that
the positions of schoolteacher and voting school board member
were incompatible under the common-law rule); Thomas v.
Dremmel, 868 P.2d 263 (Wyo. 1994) (same, as to school board
maintenance employee); see also Allan E. Korpela, Annotation,
Right of Schoolteacher to Serve as Member of School Board in
School District Where Employed, 70 A.L.R. 3d 1188 (1976 & Cum.
Supp.).
Mr. Frazier, however, is not a voting member of the school
board. The fact that the ex officio board member does not have a
vote would at least lessen the conflict of interest that would exist if
a public school teacher served as a voting member of the school
board. The nonvoting member might still be able to influence the
board by making his views known during the board’s
deliberations,5 but he would not be able to directly affect, by voting,
how the board acts with respect to matters of interest to public
school teachers.
At the same time, authorities from other jurisdictions suggest
that an incompatibility between offices does not evaporate simply
because the member does not vote. For example, the Supreme
Court of Wyoming has held that the incompatibility between a
position on the school board and employment as a teacher within
the district would not be cured by a member “absent[ing] himself
from the discussion and voting on his own contract.” Haskins v.
State ex rel. Harrington, 516 P.2d 1171, 1179 (Wyo. 1973). The
court reasoned that “the need of the community for continuing
exercise of judgment and the making of decisions on the basis of
give-and-take discussion of independent minds is not served best
where one of the board must at frequent intervals take no part
because of conflict.” Id.; see also 70 A.L.R. 3d 1188, at § 2

5
See 100 Opinions of the Attorney General 55, 77-78 (2015) (under
the liberal construction given the State Public Ethics Law, member of
district council “participates” in the “consideration” of matters by being
present during their discussion).
32 [101 Op. Att’y

(observing that most courts “apparently tak[e] the position that the
voters are entitled to school board members who are free to vote on
all matters and that the mere possibility of conflict is sufficient to
create an incompatibility between the two positions”). And the
Louisiana Attorney General concluded that a physician may not
serve on a hospital district board with authority over the
physician’s hospital, even if he served entirely in a non-voting
capacity. La. Atty. Gen. Op. No. 91-117 (1991).
However, none of these out-of-state authorities involved ex
officio membership on a school board, where the potential
incompatibility arises only because a statutory provision places the
member there. And those out-of-state authorities that do address
ex officio status, but do not involve school board membership,
provide conflicting guidance. For example, the Iowa Attorney
General concluded in 1906 that, while the law in this area was “not
clearly defined,” it was “extremely doubtful” that the mayor of a
city could serve on the state board of health when the mayor also
served ex officio as a member of the local board of health, which
was under the direction of the state board. See Iowa Atty. Gen.
Op., 1906 WL 52871 (Feb. 27, 1906). More recently, by contrast,
the Supreme Court of Hawaii has suggested that the common law
rule prohibiting a person from holding incompatible offices “is
inapplicable when a person is compelled by law to accept the
second position.” State v. Villeza, 85 Haw. 258, 270 (1997). When
the incompatibility is thrust upon the office-holder by operation of
law, “neither the design nor the spirit of” the common law
prohibitions is served by disqualification.6 Id. (quoting 63A Am.
Jur. 2d Public Officers and Employees § 83 (1984)); see also M.C.
Dransfield, Annotation, Effect of Election to or Acceptance of One
Office by Incumbent of Another Where Both Cannot Be Held by
Same Person, 100 A.L.R. 1162 (1936 & Cum. Supp.).
As for Maryland law, there is very little guidance available on
whether an incompatibility of an official’s outside employment
with a nonvoting ex officio position would make the person
ineligible for the principal office to which the ex officio position is
attached. On the one hand, it could be argued that, had the General
Assembly wished to disqualify all school board employees from
service on Carroll County’s board of commissioners, the General
Assembly would have expressed that intent. It did not; although
the Election Law Article makes clear that the candidacy of school

6
The circumstances of the Hawaii case are somewhat different from
ours; the potentially conflicting duties there were imposed on the office-
holder only after the official had taken office. Villeza, 85 Haw. at 270.
Gen. 23] 33

board members is subject to the Education Article, see EL § 8-801,
neither the Election Law Article nor the Local Government Article
contains an analogous provision on the candidacy of county
commissioners. Further, Maryland law expressly protects the right
of public servants, including school board employees, to run for
political office. See Md. Code Ann., State Pers. & Pens. § 2-304(a)
(2015 Repl. Vol.) (providing that a state employee “may freely
participate in any political activity”); 85 Opinions of the Attorney
General at 218 (“State law guarantees State and local government
employees the right to run for public office.”).
On the other hand, this office has consistently opined that the
right to run for office does not include the right to serve in an
incompatible position once elected. See, e.g., 85 Opinions of the
Attorney General 177, 180-81 (2000). And the fact that the
Election Law Article and other laws pertaining to elected officials
do not enumerate each public position with which an elective
office might be incompatible means only that common-law
incompatibility principles apply.
In sum, there is no clear answer to the question of whether an
incompatibility between outside (but public) employment and an
ex officio position would preclude a person from serving in the
office to which the ex officio position is attached. What does seem
clear, however, is that an ex officio membership on the school board
is not considered to be a separate position in the first place. It has
long been the view of this office that a membership made ex officio
by virtue of a principal office “does not constitute the holding of
separate offices but rather is the appending of additional duties
upon the first office.” 61 Opinions of the Attorney General at 162
(addressing whether an ex officio membership was a separate
position for purposes of the constitutional bar on holding two
offices of profit); 60 Opinions of the Attorney General 121, 129
(1975) (ex officio service “is not the holding of a separate office”);
see also, e.g., Hancock v. Davidson County, 104 S.W.2d 824, 828
(Tenn. 1937) (explaining that “it is almost everywhere a settled rule
that a statute conferring additional duties on a public officer ex
officio does not have the effect of appointing him to a second
office”).
From these principles, we conclude that the commissioners’
primary duty lies with the office of commissioner and that their ex
officio, nonvoting, membership on the school board does not create
a separate office with separate duties. The interplay between the
two positions does not involve the type of structural conflict of
34 [101 Op. Att’y

loyalties that the incompatibility doctrine is designed to prevent.
See Hetrich, 222 Md. at 308. As applied here, that means that Mr.
Frazier’s duties lie with the principal office, that of county
commissioner. Because his teaching position is not incompatible
with that of commissioner, there is no incompatibility of office. So,
while ethical questions may arise from time to time in particular
circumstances, as would be the case for any commissioner when an
issue arises that might affect the commissioner’s personal interests,
the positions of school board employee and commissioner are not
rendered incompatible by the provision in the Education Article
that confers ex officio, non-voting school board membership on the
commissioners. We found no indication of a broad legislative
intent to bar the employees of the Carroll County School Board
from serving as Carroll County commissioners.
III
Conclusion
The office of county commissioner, which includes the
function of serving ex officio on the school board, is not
incompatible with employment by the school board as a teacher.
This conclusion does not address Mr. Frazier’s duties under the
ethics provisions applicable to his positions.
Brian E. Frosh
Attorney General of Maryland
Adam D. Snyder
Chief Counsel, Opinions & Advice
* Ann MacNeille, Assistant Attorney General, contributed
significantly to the preparation of this opinion.