Jacob Bennett v. Harford County, Maryland
No. 38, September Term, 2022
IN THE SUPREME COURT OF MARYLAND
August 30, 2023
Opinion by Fader, C.J. Gould,
Circuit Court for Harford County, Case No. C-12-CV-22-000857. Argued: April 4, 2023.
Jacob Bennett v. Harford County, Maryland, No. 38, September Term, 2022.
STATUTORY INTERPRETATION – ELIGIBILITY TO BE A HARFORD COUNTY COUNCIL MEMBER
Section 207 of the Harford County Charter, which prevents a Council member from holding employment in the government of the State, Harford County, or any municipality within Harford County, does not preclude a teacher employed by the Harford County Board of Education from simultaneously serving as a member of the Harford County Council. Finding Charter § 207 ambiguous concerning whether it applies to employees of the Board, the Court applied a canon of construction favoring candidate eligibility to resolve the ambiguity.
PUBLIC EMPLOYMENT – INCOMPATIBLE POSITIONS
The doctrine of incompatible positions does not preclude a teacher employed by the Harford County Board of Education from simultaneously serving as a member of the Harford County Council.
Fader, C.J., Watts, Hotten, Booth, Biran, Gould, Eaves, JJ.
Pursuant to the Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic.
Gregory Hilton, Clerk
2024.04.26 11:49:00 -04‘00’
Filed: August 30, 2023
* At the November 8, 2022 general election, the voters of Maryland ratified a constitutional amendment changing the name of the Court of Appeals of Maryland to the Supreme Court of Maryland. The name change took effect on December 14, 2022.
Jacob Bennett, the appellant, and Harford County, Maryland (the “County“), the appellee, dispute whether Mr. Bennett is barred from serving as a member of the Harford County Council (the “Council“) because of his employment as a schoolteacher by the Harford County Board of Education (the “Board“). In the November 2022 general election, Mr. Bennett was elected to the Council. Soon after, a dispute arose between Mr. Bennett and the County concerning whether he is precluded from serving simultaneously as a member of the Council and as an employee of the Board by either: (1) Section 207 of the
First, Charter § 207 does not preclude Mr. Bennett from serving on the Council because his employer, the Board, does not have the character of either a State or County government entity in the context presented. County boards of education can have the character of State, county, hybrid, or independent entities. Which character applies to a particular situation depends on context and applicable statutory and regulatory provisions. As applied in the context of Charter § 207, a county board of education does not have a particular character as State, county, hybrid, or independent entity. We therefore turn to our canons of statutory interpretation to discern the legislative intent underlying the provision. Because the language of § 207 is ambiguous and legislative history clarifies only part of that ambiguity, we employ a canon of statutory interpretation favoring candidate eligibility. We ultimately conclude that, for purposes of the applicability of § 207, the Board is an independent entity, neither State nor County, and that § 207 therefore does not preclude Mr. Bennett from simultaneously serving as a member of the Council and an employee of the Board.
Second, the doctrine of incompatible positions does not preclude Mr. Bennett‘s simultaneous service on the Council and as an employee of the Board because there is no present or prospective conflict of interest between the positions; neither position has a level of supervisory power over the other or the ability to hire, fire, or set the salary of the other; and none of the functions of the offices are “inherently inconsistent and repugnant.” Hetrich v. County Comm‘rs of Anne Arundel County, 222 Md. 304, 308 (1960) (quoting Lilly v. Jones, 158 Md. 260, 266 (1930)). The Council‘s limited roles with respect to the budget and membership of the Board are too attenuated from Mr. Bennett‘s position as a teacher to implicate the doctrine.
For those reasons, in a per curiam order issued following oral argument, we held that Mr. Bennett was not barred from serving on the Council while remaining a schoolteacher employed by the Board, reversed the contrary order and declaratory judgment of the Circuit Court for Harford County, and remanded the case with instructions to that court to enter a declaratory judgment in accord with our order. Bennett v. Harford County, 483 Md. 414 (2023) (per curiam). We now explain the basis for that order.
BACKGROUND
A. The Harford County Charter and the Council
Harford County is governed by the terms of a charter adopted by the eligible voters of the County in November 1972. See Maryland Manual 1973-1974, at 589 (Morris L. Radoff & Frank F. White, Jr., eds., 1974). The legislative branch of the County government is the seven-member Council.
While serving on the Council, a “member shall not hold any other office of profit or employment in the government of the State of Maryland, Harford County, or any municipality within Harford County, except a position held by virtue of being a Council member.”
This dispute centers on the prohibition in
B. Factual Background
Before the circuit court, the parties stipulated to the following facts, among others.
Mr. Bennett is a teacher in the Harford County Public Schools, employed by the Board. For the 2022-2023 school year, Mr. Bennett was under contract with the Board to teach wherever the Superintendent of the Harford County Public Schools assigned him.
In the November 2022 General Election, the voters of Harford County Council District F elected Mr. Bennett to serve as the Council member representing that district. Mr. Bennett intends to work as a teacher in Harford County Public Schools while simultaneously serving as a Council member.
Mr. Bennett is paid by the Board. As a teacher, Mr. Bennett participates in the State retirement system, with funding that comes from the County.
The Board receives substantial funding from the State, some of which comes from federal programs, and the County. Annually, the Board submits a proposed budget to the County Executive and the Council. Since 1972, the County Executive and the Council have fully funded the Board‘s proposed budget only four times, three of which were the last three fiscal years. Each year, the Council meets with Board representatives, considers the Board‘s proposed budget and any proposed cuts to it, and usually approves in part and denies in part the proposal. The Council also considers and acts on Board requests to transfer funds in the Board‘s budget between major categories. In making its funding decisions, the Council allocates County funds among the various agencies and units of government that receive funds from it, including several non-County entities.2 The Board is the largest recipient of County operating budget funds.
Annually, the Council approves the allocation of County revenues to the Board, which the Board uses to pay for textbooks and classroom supplies; information and communication technology; a fleet of vehicles; and the salaries of its personnel, including teachers. The Council also approves the allocation of County revenues
Mr. Bennett‘s compensation as a member of the Council would be $49,000 per year.
C. Procedural Background
About one month after Mr. Bennett‘s election, the County filed this action. In its complaint, the County sought a declaratory judgment that Mr. Bennett was not qualified to serve on the Council while employed by the Board, as well as an injunction barring him from serving on the Council. Before the circuit court, the County argued that the Board was either a State or a County agency and that, in either case, Mr. Bennett‘s employment with the Board rendered him unqualified to serve on the Council pursuant to
In February 2023, after a hearing, the circuit court ruled for the County. The court concluded that because the controversy arose from the Council‘s required input on the Board‘s annual budget, and budgetary issues are local in nature, the Board should be treated as a County entity for purposes of
Mr. Bennett filed a notice of appeal with the Appellate Court of Maryland,3 and petitioned for a writ of certiorari to this Court before action was taken by the Appellate
Court. This Court granted Mr. Bennett‘s petition and the parties’ joint petition for expedited proceedings on March 6, 2023. Bennett v. Harford County, 483 Md. 264 (2023).
On April 5, 2023, following oral argument, we issued a per curiam order reversing the circuit court and declaring that neither
DISCUSSION
The interpretation of a provision of a county charter is a legal question, which we review without deference. Prince George‘s County v. Thurston, 479 Md. 575, 585 (2022). The application of the doctrine of incompatible positions to undisputed facts is also a question of law, which we again review without deference. See Uthus v. Valley Mill Camp, Inc., 472 Md. 378, 385 (2021).
I. CHARTER § 207
A. The Statutory Scheme
Title 2 of the Education Article establishes the State Department of Education as a principal department of the State government, with the State Board of Education (the “State Board“) serving as head of the department.
The State Board appoints a state superintendent, who serves as the chief executive, secretary, and treasurer of the State Board and is charged with “[c]arry[ing] out the educational policies of the State Board.”
Title 3 of the Education Article establishes “a county board of education,” co-extensive with the geographical boundaries of each county in the State, “for each county school system.”
County boards of education are responsible for “educational matters that affect the counties.”
Under State law, county boards are required, among other things, to carry out applicable provisions of the Education Article “and the bylaws, rules, regulations, and policies of the State Board“; maintain throughout their jurisdiction “a reasonably uniform system of public schools that is designed to provide quality education and equal educational opportunity for all children“; “determine . . . the educational policies of the county school system“; and promulgate “bylaws, rules, and regulations not inconsistent with State law, for the conduct and management of the county public schools.”
Each county board of education must prepare and submit an annual budget “[s]ubject to the rules and regulations of the State Board and with the advice of the county superintendent.”
In counties with a county executive and council, such as the County, budgets are due at least 45 days before the date for levying local taxes.
council‘s approval to transfer funds between major budget categories.
County boards are responsible for employing individuals necessary to the operation of the public schools in the county, but they may not hire anyone as a county superintendent, supervisor, principal, or teacher unless the individual is eligible to be issued a certificate by the state superintendent.
As shown by the discussion above, county boards of education are: (1) integral parts of the State system of public education, which is established and thoroughly regulated by State law and ultimately presided over by the State Board; (2) organized, selected, and funded in significant part on a county level, although through a process grounded in State law; and (3) in many respects, distinct in their operations from both State and county entities.
The unique status of county boards is reflected in other statutes as well. For example, tort claims against State entities, including the State Board, and related immunity for State personnel, are governed by the Maryland Tort Claims Act,
Maryland‘s Public Ethics Law also treats State entities, county entities, and county school boards separately. The Maryland Public Ethics Law contains provisions addressing conflicts of interest, financial disclosures, and lobbying that apply generally to State officials and employees. See
B. Treatment of County School Boards in Caselaw
Reflecting the complexity of the character of county school boards laid out in the Maryland Code, this Court has not adopted a uniform determination of the character of such boards for all purposes. Instead, we have recognized that their character can vary based on context. We recently traced the evolution of our caselaw in this area in determining whether a county school board is part of the executive branch of the State government for purposes of the State‘s Whistleblower Protection Law in Donlon v. Montgomery County Public Schools, 460 Md. 62 (2018).
In Donlon, we rejected the petitioner‘s contention that county school boards are State agencies for all purposes. Id. at 79. We acknowledged that several of our prior opinions had “referred to county boards of education as State entities in a variety of contexts,” but concluded that “none [we]re consequential to the present case,” both because the conclusory statements at issue were made in dicta and because they were not explained. Id. We also observed that courts had uniformly determined that county school boards are State agencies for purposes of sovereign
cases, including Chesapeake Charter, Inc. v. Anne Arundel County Board of Education, 358 Md. 129 (2000) and Beka Industries, Inc. v. Worcester County Board of Education, 419 Md. 194 (2011), we concluded in Donlon that county boards of education are agencies whose character can vary based on context.
We first summarized our decision in Chesapeake Charter, in which we “elaborated . . . on the hybrid nature of county school boards of education.” Donlon, 460 Md. at 83. The issue in Chesapeake Charter was whether the Anne Arundel County Board of Education is subject to the State‘s General Procurement Law and, therefore, to the jurisdiction of the Maryland State Board of Contract Appeals. Id. (discussing Chesapeake Charter, 358 Md. at 134). In resolving that question, we explained that county school boards “are generally regarded as State agencies because they are part of the State public education system, are subject to extensive supervision and control by the State Board of Education, and exercise a State function[.]” Donlon, 460 Md. at 83-84 (quoting Chesapeake Charter, 358 Md. at 139-40). Nonetheless, we noted that “from a budgetary and structural perspective, [county school boards] are local in character.” Id. Indeed, we observed that “in terms of their composition, jurisdiction, funding, and focus, [county school boards] clearly have a local flavor[.]” Donlon, 460 Md. at 84 (quoting Chesapeake Charter, 358 Md. at 135-36). We also found it notable that county school boards “retain unique autonomy aspects, irrespective of the [State Board]‘s authority,” that weighed
‘local’ agency or instrumentality for any and all purposes.” 413 Md. at 630 (citation omitted).
against concluding that they were part of the State procurement system. Donlon, 460 Md. at 85-86.
Ultimately, in the context presented in Chesapeake Charter, we concluded that “the county board‘s school bus contracts were not subject to the General Procurement Law because the board did not fall within the purview of the statute.” Id. at 86. We held that “from a budgetary and structural perspective,” county boards “are local in character[,]” and they do not comprise “‘divisions of or units within’ the State government.” Id. (quoting Chesapeake Charter, 358 Md. at 139).
We next turned to our decision in Beka, which the petitioner in Donlon argued had limited our holding in Chesapeake Charter. We disagreed. Donlon, 460 Md. at 87. The relevant issue in Beka “was whether a county board of education retained its right to sovereign immunity asserted in defense to a breach of contract action under [State Government] § 12-201.” Id. We concluded that our decision in Chesapeake Charter “did not foreclose, in Beka, a different analysis and holding” for purposes of the application of a sovereign immunity waiver. Id. at 87-88. We therefore “reiterated that, for purposes of Eleventh Amendment/sovereign immunity analysis, local boards of education are entities of State government.” Id. at 88. The different answers provided in Chesapeake Charter and Beka concerning whether the county school boards at issue were units of State government resulted from the different contexts in which the questions arose. See id.
In turning to the facts of Donlon, we observed that “sovereign immunity [wa]s extraneous to the purpose and legislative history of the [Whistleblower Protection Law].” Id. After noting “the local flavor of a county board of education‘s budgeting process,”
which was central to the outcome of Chesapeake Charter, we observed that “[t]he blend of State, local, and independent characteristics of a county board extends beyond local budgetary concerns,” and that “[p]ersonnel matters are inherently local at their inception.” Id. at 90. Dissecting the relevant provisions of the Education Article, we specifically noted the special authority of county school boards—“distinct from [the State Board]“—over personnel matters and discipline. Id. at 91. Because the Whistleblower Protection Law is a law concerning personnel matters and discipline that is limited in its application only to State employees, we concluded that it was “not expansive enough . . . to cover under its umbrella county boards and their school teachers[.]” Id. at 94. We therefore held “that a county board of education is not an entity of the State . . . for purposes of the [Whistleblower Protection Law].”8 Id. at 96.
As clarified in Donlon, county school boards do not have the same character for all purposes. To the contrary, they have a “blend of State, local, and independent characteristics,” id. at 90, that, depending on context, could result in a determination that they are of a State, local, or independent character for a particular purpose. Which character prevails depends on an investigation of the particular context and the
characteristics of county school boards that are relevant to that context. With that understanding, we turn to the present dispute.
C. The Character of the Board for Purposes of Charter § 207
The circuit court concluded that the Board is a County agency for purposes of
If
In relevant part,
In Chesapeake Charter, Beka, and Donlon, our analyses turned on the character of the role or function of the county board as it pertained to the issue in dispute: procurement matters, sovereign immunity, and personnel matters, respectively. But where affiliation with the county board is itself the purported disqualification, there is no applicable role or function of the county board to be analyzed to determine whether it is State, county, or independent in character. If
Because there is no necessary character of a county school board for purposes of determining whether its employees are eligible to serve in the government of a different governmental entity, we are ultimately confronted with a question of statutory interpretation: whether the framers of the Harford County Charter intended
“Our goal is to ascertain and effectuate the intention of the legislature and we
begin that exercise by reviewing the statutory language itself.” [Comptroller v.] Citicorp[ Int‘l Commc‘ns, Inc.], 389 Md. 156, 165 [(2005)] (quotations omitted). We read the plain meaning of the language of the statute “as a whole, so that no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless or nugatory.” Wheeling v. Selene Fin. LP, 473 Md. 356, 376 (2021) (quoting Koste v. Town of Oxford, 431 Md. 14, 25-26 (2013) (internal quotations omitted)). “Additionally, we neither add nor delete language so as to reflect an intent not evidenced in the plain and unambiguous language of the statute, and we do not construe a statute with forced or subtle interpretations that limit or extend its application.” Wheeling, 473 Md. at 376-77 (quoting Lockshin v. Semsker, 412 Md. 257, 274 (2010)) (cleaned up). “If the language of the statute is unambiguous and clearly consistent with the statute‘s apparent purpose, our inquiry as to legislative intent ends ordinarily and we apply the statute as written, without resorting to other rules of construction.” Id. at 377 (quoting Lockshin, 412 Md. at 275). That said, as the Court recently reiterated in Wheeling, [w]e, however, do not read statutory language in a vacuum, nor do we confine strictly our interpretation of a statute‘s plain language to the isolated section alone. Rather, 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. We presume that the Legislature intends its enactments to operate together as a consistent and harmonious body of law, and, thus, we seek to reconcile and harmonize the parts of a statute, to the extent possible consistent with the statute‘s object and scope.
Where the words of a statute are ambiguous and subject to more than one reasonable interpretation, or where the words are clear and unambiguous when viewed in isolation, but become ambiguous when read as part of a larger statutory scheme, a court must resolve the ambiguity by searching for legislative intent in other indicia, including the history of the legislation or other relevant sources intrinsic and extrinsic to the legislative process. In resolving ambiguities, a court considers the structure of the statute, how it relates to other laws, its general purpose, and the relative rationality and legal effect of various competing constructions.
In every case, the statute must be given a reasonable interpretation, not one that is absurd, illogical, or incompatible with common sense.
473 Md. at 377 (quoting Lockshin, 412 Md. at 275-76) (internal quotations omitted).
Comptroller v. FC-GEN Operations Invs. LLC, 482 Md. 343, 379-81 (2022).
We have recognized another canon of statutory interpretation applicable specifically to provisions relating to candidate qualification: When statutory language is ambiguous, there is “a presumption in favor of the eligibility of one who has been elected or appointed to a public office.” Mayor & Comm‘rs of Westernport v. Green, 144 Md. 85, 89 (1923); see also Abrams v. Lamone, 398 Md. 146, 179-80 (2007) (discussing the presumption in favor of eligibility).
Because county boards of education are not inherently of either State or county
Context provided by other sections of the Charter suggests that the framers did not view the Board as part of the County government. Article IV of the Charter identifies the administrative organization of the County. Section 401 provides that “[e]xcept as otherwise provided in this Charter or in state law, all agencies of the County government shall be subject to the direction, supervision, and control of the County Executive.” (Emphasis added). Section 402 then identifies 11 agencies as being within the executive branch of the County government, along with “any other agencies established by law.”9 The Board is not among the agencies listed. Indeed, the sole mention of the Board in the Charter is in § 409, which concerns the Harford County Department of Parks and Recreation. In setting out duties of the Director of that department, § 409(b) requires the Director to “encourage the development of cooperative programs and joint use of facilities with the Board of Education[.]” The only mention of the Board in the Charter is thus a direction that a County department seek to cooperate with it.
The County directs us to
Our consideration of “the purpose, aim, or policy” underlying
Although context suggests that the framers of the Charter did not view the Board as part of the County government, we do not find that context strong enough to be dispositive. As a result, after considering the plain language, context, and purpose of
The scant legislative history that might reflect on the question before us consists mostly of explanations provided by one member of the Charter Board during a January 27, 1971 public hearing. During that hearing, in response to comments from the County superintendent of schools, Charter Board member Robert J. Carson explained his view that the Board was part of a state education system and, therefore, that the “[s]uperintendent and all the employees underneath of that [position], I don‘t think, will be affected in any way by the charter,” with the possible exception of school construction bonds. He also explained that the County lacked the authority to alter the manner of selecting members of the Board. And in responding to a different inquiry about why education was not included in the Charter, Mr. Carson stated that was because “the State alone controls the educational system in this State and forbids the Counties passing local laws in respect to schools.” He observed, however, that the County pays for a portion of the education system, as required by State law, and that the County Executive and the Council would scrutinize that part of the budget. To the extent these comments can be understood to reflect the understanding of the Charter Board as a whole,10 they are evidence that the framers did not consider the Board to be an agency of the County government. Although the same comments indicate that the framers understood the Board to be part of the Statewide system of public education, they do not necessarily suggest that the Charter Board members viewed it as an entity of the State government. That subject simply did not come up.
Legislative history also strengthens our conclusion that the definition of “County” included in
The legislative history of
Considering the remaining unresolved ambiguity, we reach our resolution of the scope of
Constitutional and statutory provisions that impose restrictions on the eligibility of a person to hold public office are construed liberally in favor of the eligibility of the person to hold the office. See 63C Am.Jur.2d Public Officers and Employees §53 at pp. 497-98 (observing that the case law generally holds that “[i]f there is any doubt or ambiguity in the applicable provisions, such doubt or ambiguity must be resolved in favor of eligibility“); see also 67 C.J.S. Officers §23 at pp. 175-76 (“The courts have a duty to liberally construe words limiting the right of a person to hold office“). The underlying basis for the presumption of eligibility is to favor the right of the voters to select their public officers. Id.
91 Op. Att‘y 99, 103 (2006).
This Court applied the presumption in favor of eligibility in Green, in which the Circuit Court for Allegany County had found an individual ineligible to serve as clerk of Westernport, Maryland due to his service in the General Assembly when, the circuit court found, an increase in the salary for the clerk position “was virtually directed by [a] statute passed [by the General Assembly] during his legislative term.” 144 Md. at 87. The circuit court issued a writ of mandamus removing the clerk from office. Id. at 89. This Court disagreed with the circuit court‘s interpretation of the effect of the relevant statute, and then stated:
There is a presumption in favor of the eligibility of one who has been elected or appointed to a public office. 22 R. C. L. 400. Before his removal can be compelled by mandamus his constitutional or statutory disqualification should be clearly apparent. In this case the alleged ineligibility is not sufficiently demonstrated to require us to declare the appointment invalid. It will, therefore, be
necessary to reverse the order for the writ of mandamus which directed the office to be vacated.
The principle underlying the presumption in favor of candidate eligibility is that “[t]here is nothing more fundamental to our society than the ability of our electorate to choose its leaders.” Becker v. Dean, 854 So. 2d 864, 869 (La. 2003); see also id. (“The purpose of the election process is to provide the electorate with a wide choice of candidates. . . . Thus, the interests of the state and its citizens are best served when election laws are interpreted so as to give the electorate the widest possible choice of candidates.“); In re Farnese, 17 A.3d 357, 372 (Pa. 2011) (“[T]he Election Code must be liberally construed to protect a candidate‘s right to run for office and the voters’ right to elect the candidate of their choice.” (quoting In re Nomination Petition of Driscoll, 847 A.2d 44, 49 (Pa. 2004))); State ex rel. Kelly v. Cuyahoga County Bd. of Elections, 639 N.E.2d 78, 79 (Ohio 1994) (“Words limiting the right of a person to hold office are to be given a liberal construction in favor of those seeking to hold office, in order that the public may have the benefit of choice from all those who are in fact and in law qualified.” (quoting State ex rel. Schenck v. Shattuck, 439 N.E.2d 891, 893 (Ohio 1982))); Sears v. Bayoud, 786 S.W.2d 248, 251 (Tex. 1990) (“We have repeatedly recognized the principle that constitutional provisions which restrict the right to hold public office should be strictly construed against ineligibility.“).
In recognition of the public interest in strictly construing laws limiting eligibility for public office to protect the right of voters to choose their elected officials, we continue to adhere to the presumption in favor of eligibility when laws imposing restrictions are ambiguous. Applying that presumption here to resolve the ambiguity in
II. THE DOCTRINE OF INCOMPATIBLE POSITIONS
The circuit court also determined that Mr. Bennett is barred from simultaneously serving as a member of the Council and an employee of the Board by the common law doctrine of incompatible positions. Under that doctrine, an individual cannot simultaneously hold two offices that are incompatible with each other. Lilly v. Jones, 158 Md. 260, 265-66 (1930); see also Hetrich v. County Comm‘rs of Anne Arundel County, 222 Md. 304, 308 (1960). “The fundamental test of incompatibility . . . 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, 222 Md. at 308. Incompatibility is determined by “the character and relation of the offices,” id. (quoting Lilly, 158 Md. at 266), and “whether there is a present or prospective conflict of interest,” Hetrich, 222 Md. at 308. If an officer accepts two offices that are incompatible with each other, the officer generally must vacate the first one the officer accepted. Id.
Hetrich and Lilly are instructive as to when two offices are incompatible. In Hetrich, a Board of County Commissioners appointed one of its members to serve as the Acting County Business Manager. Id. at 307. The trial court concluded that the positions were incompatible. Id. at 306-07. This Court agreed, noting that, by statute: (1) the Board of County Commissioners had direct authority over the County Business Manager, including the power to appoint, remove, and set the salary for the position; and (2) the manager was “responsible to the board of county commissioners for the proper administration of all affairs of the county[.]” Id. at 308.
In Lilly, this Court held that service on the Baltimore City Service Commission and the Port Development Commission of Baltimore City, both appointments by the Mayor of Baltimore City, were incompatible. 158 Md. at 265-66. The Baltimore City Service Commission was responsible for classifying all municipal offices and positions in the City of Baltimore, including those of the Port Development Commission, and “no appointment to any such offices or places [could] be made except under the rules of the” Baltimore City Service Commission. Id. at 262. In that way, “[t]he powers and duties of the Port Development Commission in the matter of appointments [we]re subject to the supervisory powers of the City Service Commission[.]” Id. at 266. The purpose of the division between the classification power of the Baltimore City Service Commission and the appointment power held by the various other entities in the City government was “to provide a merit system of appointment for the City of Baltimore.” Id. at 262. In light of that, we held that “to permit one person to exercise the powers of both commissions would not only allow [that person] to exercise powers that are inconsistent, but would defeat the very object and purpose of the creation of the City Service Commission.” Id. at 266.
Returning to the dispute before us, any possible conflict between the positions of Council member and public schoolteacher is too attenuated to run afoul of the doctrine of incompatible positions. In Hetrich, we identified two examples of “a present or prospective conflict of interest” that would fail the “fundamental test of incompatibility“: (1) “where one office is subordinate to the other or subject to supervision by the other,” or (2) “where the incumbent of one office has the power to appoint or remove or to set the salary of the other.” 222 Md. at 308. Here, neither position is subordinate to or subject to supervision by the other. A teacher in the Harford County school system is subordinate to and subject to the supervision of the Board, the County Superintendent, and, presumably, the principal and other administrators in the school in which the teacher is placed. To the extent a teacher has a right to appeal certain decisions of the Board, such as those related to discipline, that right of appeal is to the State Board, not the Council.
Nor does the Council have the power to appoint, remove, or set the salary of a public schoolteacher employed by the Board. Rather, subject to the State Board‘s role in setting standards for teachers and certifying them,
We also do not discern any incompatibility between the Council‘s limited role in the selection of members of the Board and employment as a public schoolteacher. The Council must approve of the County Executive‘s selection of three of the nine voting members of the Board, whether for a full term or to fill a vacancy.
Nor does any inherent incompatibility arise from the possibility that a public schoolteacher might favor policy decisions that enhance education in the County or provide additional funding for it, any more than a similar possibility that a business owner might favor policy decisions that enhance the business climate in the County or provide for additional spending on infrastructure that might benefit that individual‘s business. The doctrine of incompatible positions precludes service in roles that are specifically incompatible, such as the roles at issue in Hetrich and Lilly. It does not preclude service by individuals who might benefit generally or indirectly from the roles they fulfill. Indeed, by making residency in one‘s Council district a qualification for election, the Charter ensures the election of Council members who will be able to benefit generally from the Council‘s decisions.
CONCLUSION
In summary, we hold that Mr. Bennett was not barred by (1) Section 207 of the Harford County Charter or (2) the doctrine of incompatibility, from serving as a member of the Harford County Council while simultaneously employed as a teacher by the Harford County Board of Education. For that reason, we reversed the declaratory judgment and order issued by the Circuit Court for Harford County entered
Circuit Court for Harford County
Case No. C-12-CV-22-000857
Argued: April 4, 2023
IN THE SUPREME COURT OF MARYLAND*
No. 38
September Term, 2022
JACOB BENNETT
v.
HARFORD COUNTY, MARYLAND
Fader, C.J.,
Watts,
Hotten,
Booth,
Biran,
Gould,
Eaves,
JJ.
Dissenting Opinion by Gould, J.
Filed: August 30, 2023
* During the November 8, 2022 general election, the voters of Maryland ratified a constitutional amendment changing the name of the Court of Appeals to the Supreme Court of Maryland. The name change took effect on December 14, 2022.
The Majority Opinion reaches two conclusions. First, that the Harford County Charter (“Charter“) section 207 does not preclude Mr. Bennett from serving on the Harford County Council (“Council“) because, under the circumstances here, his employer, the Harford County Board of Education (“Board“), lacks the character or qualities of either a State or County government. Second, that the doctrine of incompatible positions does not preclude Mr. Bennett from serving as both a schoolteacher and a Council member simultaneously. I respectfully disagree with both conclusions.
The Plain Language of Charter Section 207
Section 207 of the Charter provides: “During the term of office, the Council member shall not hold any other office of profit or employment in the government of the State of Maryland, Harford County, or any municipality within Harford County, except a position held by virtue of being a Council member.”
In construing section 207, the Majority focuses on the identity of the entity that employs Mr. Bennett, stating that section 207 “prohibits an individual from serving as a Council member if, among other things, the individual is employed by the State of Maryland or the County.” Maj. op. at 7 (emphasis added). From that premise, the Majority surveys caselaw that addresses whether certain state statutes treat local boards of education as State or County governmental entities. See Donlon v. Montgomery Cnty. Pub. Schs., 460 Md. 62 (2018) (holding county boards of education are state governmental entities for purposes of Maryland‘s Whistleblower Protection Law,
In my view, the Majority misconstrues section 207. Section 207 requires us to ask whether Mr. Bennett holds “employment in the government of the State of Maryland, Harford County, or any municipality within Harford County,” (emphasis added), not which entity serves as his official employer. As a teacher in the County public school system, Mr. Bennett clearly holds employment in either the State or County government. That the Board—a creature of State statute that can be viewed as either a State or County entity depending on the circumstances—cuts Mr. Bennett‘s paycheck is beside the point.
As a teacher in Harford County‘s public school system, Mr. Bennett is on the frontlines in executing a specific governmental function for which both the State and County governments share responsibility. That the General Assembly chose to implement its constitutional mandate by creating local boards of education that serve as the official employers of public school teachers does not obscure the governmental nature of Mr. Bennett‘s job as a teacher. The General Assembly could change the structure of the public school system at any time, but Mr. Bennett‘s role as a teacher in the government-established and government-funded school system would remain unchanged. One way or the other, Mr. Bennett is employed “in” either the State or County government. The Majority‘s exercise in characterizing the nature of the entity that formally employs Mr. Bennett—which is merely an instrument devised by the General Assembly to implement its constitutional mandate—misses the forest for the trees.
Charter Section 502
The Charter certainly treats Mr. Bennett as a County employee. Section 502 provides a list of “[d]efinition[s] of terms used in this article.” There, “County” or “County government” is defined to “include all agencies and their officers, agents, and employees who receive or disburse County funds.”
The Majority acknowledges that “[a]s a recipient of County funds, the Board falls squarely within [section 502‘s definition of County government],” but dismisses the relevance of that provision to section 207 because of “both (1) the express limitation on the scope of that definition to the provisions of Article V and (2) the much different scope of County government agencies identified in Article IV.” Maj. op. at 23. I respectfully disagree with the Majority on both fronts.
But that doesn‘t render irrelevant such definitions for the purposes of section 207. To the contrary, the sweeping breadth of section 502‘s definition of “County” or “County government” to include any entity or person who receives any funding from the County is entirely consistent with the sweeping breadth of section 207‘s prohibition of Council members from holding ”any other office of profit or employment in the government of the State of Maryland, Harford County, or any municipality within Harford County[.]” (emphasis added). Absent express language in either section 207 or section 502 requiring otherwise, these sections of the Charter should be construed in harmony, which means that employment “in” County government under section 207 would include any person considered a County employee under section 502. See O‘Connor v. Baltimore County, 382 Md. 102, 113 (2004) (“Local ordinances and charters are interpreted under the same canons of construction that apply to the interpretation of statutes.“); Moore v. RealPage Util. Mgmt., Inc., 476 Md. 501, 512 (2021) (“The Court presumes that the Legislature intends its enactments to operate together as a consistent and harmonious body of law, and, therefore, attempts to reconcile and harmonize the parts of a statute, to the extent possible consistent with the statute‘s object and scope.” (internal quotation marks omitted) (quoting State v. Johnson, 415 Md. 413, 421–22 (2010))).
Second, the Majority‘s reliance on Article IV is misplaced. Starting from the premise that the Board is an agency, the Majority notes that section 401 places all agencies of the County government under the control of the County Executive. Thus, according to the Majority, if the Board is intended by the Charter to be a County agency, one would expect to find the Board on the list of the agencies under executive branch control. The Majority notes that the list of such agencies is found in section 402, and the Board is not on it. The Majority reasons that this indicates that the framers did not intend for the Board to be considered a County agency. The Majority sees this tension between sections 401 and 402—which don‘t include the Board as part of the County government—with the definition of County government in section 502—which does include the Board—as an indication that the definitions in section 502 were meant to be cabined to Article V, and not applicable elsewhere in the Charter.
The problem with the Majority‘s reasoning is that it doesn‘t give meaning to the prefatory words of section 401, which provides that “[e]xcept as otherwise provided in this Charter or in state law, all agencies of the County government shall be subject to the direction, supervision, and control of the County Executive.” The phrase “[e]xcept as otherwise provided in this Charter or in state law” is critical. It means that, if
In sum, when section 207 is read in conjunction with section 502, Mr. Bennett‘s status as a teacher means that he holds employment in the County government and is thus ineligible to serve as a member of the Council. I would hold, therefore, that so long as Mr. Bennett remains employed as a teacher in the County public school system, he is ineligible to serve as a Council member. Accordingly, I would affirm the circuit court‘s judgment on that basis.
The Doctrine of Incompatible Positions
The Majority correctly states:
Under [the doctrine of incompatible positions], an individual cannot simultaneously hold two offices that are incompatible with each other. . . . “The fundamental test of incompatibility . . . 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.” . . . Incompatibility is determined by “the character and relation of the offices,” . . . and “whether there is a present or prospective conflict of interest[.]” . . . If an officer accepts two offices that are incompatible with each other, the officer generally must vacate the first one the officer accepted.
Maj. op. at 29-30 (internal citations omitted).
In my view, the positions of teacher and Council member meet this test of incompatibility. As the Majority acknowledges, the Board wields considerable power in appointing, removing, and setting the salaries of teachers. The Board also has considerable input in setting the Board‘s budget. The Council, in turn, has a significant role in choosing the members of the Board. Indeed, the Council has veto authority over three of the nine Board members appointed by the County Executive.
Because a teacher‘s salary and working conditions are determined in large part by the Board, and the Council plays a material role in the selection of the Board members, it seems obvious that the position of Council member is incompatible with the position of a teacher. Think of it this way: if each Council member were a teacher in a County public school, those teachers would have a significant role in selecting the teachers’ negotiating counterparts in setting teacher compensation. The potential for a conflict of interest is, in my view, readily apparent. As such, I would affirm the circuit court on that basis as well.
Accordingly, I respectfully dissent.