Maryland Attorney General Opinion 95 OAG 095

Gen. 95] 95
COUNTIES

E LECTIONS – C HARTER H OME R ULE C OUNTIES – C OMMISSIONER
C OUNTIES – F EWER E LECTIONS A MEND M ENT –
A PPLICATION OF F EWER E LECTIONS A MENDMENT TO C ECIL
C OUNTY G OVERNING B ODY IF C OUNTY A DOPTS C HARTER
H OME R ULE

April 20, 2010

Ms. Joyce Bowlsbey
Chairman, Cecil County Charter Board

On behalf of the Cecil County Charter Board, you have
requested our opinion concerning the terms of office of a County
Executive and members of a County Council that would be created
by a prospective charter. The Charter Board’s questions each pertain
to the extent to which Article XVII of the Maryland Constitution,
known as the Quadrennial Elections Article or Fewer Elections
Amendment, would constrain the scheduling of elections under a
charter. In particular, the Charter Board is interested in the answers
to the following questions:

1 – May the staggered terms of office that now apply to the
Cecil County Commissioners also be applied to members of a Cecil
County Council upon adoption of a charter form of government?

2 – Alternatively, may the new charter dispense with staggered
terms of office for County Council members?

3 – May a Cecil County charter provide for the election of a
County Executive in 2012 and every four years thereafter?

4 – If the State Constitution would not permit off-year
elections of a County Executive, may a charter provide for the initial
election of a County Executive in 2012 as a transitional measure, a
subsequent election in 2014, and future elections every four years
thereafter?
96 [95 Op. Att’y
For the reasons set forth below,1 it is our opinion that:

1 – A Cecil County charter may provide for staggered terms for
members of a County Council.

2 – On the other hand, a County charter may supplant the
current local law and dispense with staggered terms for members of
a County Council.

3 – A Cecil County charter may provide for the election of a
County Executive in 2012 and every four years thereafter.

4 – Alternatively, a County charter may provide for the
initial election of a County Executive in 2012, a subsequent
election in 2014, and future elections every four years thereafter.

I

Background

Cecil County is currently governed by a five-member Board of
County Commissioners. Public Local Laws of Cecil County
(“PLL”), §15-1. The County Commissioners are each elected at
large, although each Commissioner is required to reside in a
different district. PLL §15-2.A and B. The terms of the five
Commissioners are staggered – two Commissioners are elected in
the year of the presidential election, while three are elected in
the year of the gubernatorial election. PLL §15-2.D.
The staggered terms of the Commissioners are permitted by
an exception to the general rule of Article XVII of the
State Constitution. The Fewer Elections Amendment generally
requires that all State and county officers be elected every four
years as part of the gubernatorial election. Maryland Constitution,
Article XVII, §2. However, there is an exception in the
Constitution for Cecil County:

1
In compliance with our policies concerning opinion requests from
local governments, you have provided the analysis of the Charter Board’s
counsel in two letters. Letter of Joyce Bowlsbey to Attorney General
Douglas F. Gansler (January 10, 2010); Letter of Victor K. Tervala,
Esquire, to Assistant Attorney General Robert N. McDonald (April 5,
2010). We have reviewed the information you have provided. We agree
with the conclusions of your counsel and elaborate in this opinion on the
reasons why.
Gen. 95] 97
Sections 1, 2, 3, and 5 of [the Fewer Elections
Amendment] do not apply or refer to ... the
Board of County Commissioners for Cecil
County.

Maryland Constitution, Article XVII, §7(2). This exception was
passed by the Legislature in 1999 and ratified by the voters in the
2000 election. Chapter 119, Laws of Maryland 1999. Upon
ratification, companion legislation creating staggered terms for the
Commissioners became effective. Chapter 380, Laws of Maryland
1999, later amended by Chapter 95, Laws of Maryland 2002, and
codified in PLL §15-2.D.

II

Analysis

Two of the Charter Board’s questions concern election of the
members of a prospective County Council under a new charter; two
questions concern election of a prospective County Executive.

A. County Council

The Charter Board has asked whether the staggered terms that
currently apply to the Cecil County Commissioners may be applied
to the members of a new County Council created under a charter.
This question is readily answered by reference to a provision of the
Maryland Constitution that concerns the adoption of home rule
charters by counties. That section provides, in relevant part:

Every charter so formed shall provide for an
elective legislative body in which shall be
vested the law-making power of said ...
County. Such legislative body ... in any
county shall be known as the County Council
of the County. The chief executive officer, if
any such charter shall provide for the election
of such executive officer, or the presiding
officer of said legislative body, if such charter
shall not provide for the election of a chief
executive officer, shall be known ... as the
President or Chairman of the County Council
of the County, and all references in the
Constitution and laws of this State to ... the
County Commissioners of the Counties, shall
98 [95 Op. Att’y
be construed to refer to ... the President or
Chairman and County Council herein
provided for whenever such construction
would be reasonable....

Maryland Constitution, Article XI-A, §3 (emphasis added).

Under this section, the reference to the County Commissioners
of Cecil County in Article XVII, §7(2) – the exception to the Fewer
Elections Amendment – would be construed to apply to a Cecil
County Council created by a new charter, if such a construction
would be reasonable. In our view, it would be reasonable to
construe this exception, which the General Assembly and the voters
of the State have authorized for the current governing body of the
County, to apply to the new governing body created when the voters
adopt charter home rule. Nothing in the legislative history of the
exception suggests otherwise.

The Charter Board has also asked whether a new charter could
dispense with staggered terms. The Cecil County exception in the
Fewer Elections Amendment of the State Constitution authorizes,
but does not mandate, the election of the County governing body on
a staggered schedule. The current staggered terms for County
Commissioners are set forth in a public local law that was enacted
by the General Assembly coincident with the constitutional
exception. However, given the lack of any public general law
governing the terms of Cecil County’s governing body, the proposed
charter may deviate from the current local law. Specification of the
terms of the local governing body clearly relate to the “form and
structure” of local government and are thus appropriately part of a
charter. See Save Our Streets v. Mitchell, 357 Md. 237, 248, 743
A.2d 748 (2000); Cheeks v. Cedlair Corp., 287 Md. 595, 606-7, 415
A.2d 255 (1980). Accordingly, a new charter could change the
staggering of terms, or eliminate it altogether.2

B. County Executive

The Charter Board has asked whether the exception to the
Fewer Elections Amendment for the Cecil County Commissioners

2
If the voters of Cecil County were to adopt charter home rule, the
County Council could formally repeal the inconsistent public local law
provisions under authority derived directly from Article XI-A of the State
Constitution. See City of Annapolis v. Anne Arundel County, 347 Md. 1,
15, 698 A.2d 523 (1997).
Gen. 95] 99
would extend to a County Executive created under a new charter.
More particularly, the Charter Board wishes to know whether the
charter could provide for the County Executive to be elected in
presidential election years – i.e., 2012, and every four years
thereafter. As indicated in the previous section, under Article XI-A,
§3, of the State Constitution, references to County Commissioners
in the State Constitution are to be construed to refer to a chief
executive officer of a county under a charter, as well as to a county
council, if such a construction would be reasonable. In our view,
such a construction would be reasonable for the same reasons set
forth above with respect to the prospective County Council.

In the alternative, the Charter Board asks whether a charter
may provide for the initial election of a County Executive in 2012
(presidential election year) as a transitional measure, a subsequent
election in 2014 (gubernatorial election year), and future elections
every four years thereafter. Even if our conclusion above is
incorrect and a County Executive would be subject to the Fewer
Elections Amendment, the charter may still provide for this scenario.
The charter, in effect, would provide for a special election with
respect to the County Executive’s initial term. The Court of Appeals
has held that a charter may provide for such an initial special
election as part of the transition to charter home rule. See County
Commissioners for Montgomery County v. Supervisors of Elections,
192 Md. 196, 63 A.2d 735 (1949) (new Montgomery County charter
could provide for an initial special election for the new County
Council in an off-year shortly after adoption of the charter and
subsequent regular elections in the years specified by Article XVII
of the State Constitution).

III

Conclusion

In sum, it is our opinion that:

1 – A Cecil County charter may provide for staggered terms for
members of a County Council.

2 – On the other hand, a County charter may supplant the
current local law and dispense with staggered terms for members of
a County Council.
100 [95 Op. Att’y
3 – A Cecil County charter may provide for the election of a
County Executive in 2012 and every four years thereafter.

4 – Alternatively, a County charter may provide for the initial
election of a County Executive in 2012, a subsequent election in
2014, and future elections every four years thereafter.

Douglas F. Gansler
Attorney General

Robert N. McDonald
Chief Counsel
Opinions and Advice*

*Assistant Attorney General William R. Varga contributed
significantly to the preparation of this opinion.