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.
Circuit Court for Harford County
Case No. C-12-CV-22-000857 IN THE SUPREME COURT
Argued: April 4, 2023
OF MARYLAND*
No. 38
September Term, 2022
______________________________________
JACOB BENNETT
v.
HARFORD COUNTY, MARYLAND
______________________________________
Fader, C.J.,
Watts,
Hotten,
Booth,
Biran,
Gould,
Eaves,
JJ.
______________________________________
Opinion by Fader, C.J.
Pursuant to the Maryland Uniform Electronic Legal
Gould, J., dissents.
Materials Act (§§ 10-1601 et seq. of the State ______________________________________
Government Article) this document is authentic.
2024.04.26
Filed: August 30, 2023
11:49:00
-04'00'
Gregory Hilton, Clerk
* 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
Harford County Charter (the “Charter”), which prohibits a Council member from holding,
among other things, “employment in the government of the State of Maryland[ or] Harford
County”; or (2) the common law doctrine of incompatible positions. We hold that neither
Charter § 207 nor the doctrine of incompatible positions bars Mr. Bennett from
simultaneously serving as a member of the Council and an employee of the Board.
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.
2
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. Harford County Charter § 201. Six members of the Council
must, at the time of their elections, reside in one of the County’s six Council districts. Id.
§ 204. The seventh, who serves as Council President, is elected at large. Id. Members are
elected for four-year terms on the same schedule as the election of state officers. Id. §§ 204,
206.
To be qualified to serve as a Council member, a candidate must “have been a
resident and a qualified voter of the County for at least two years immediately preceding
election or appointment,” and (other than the Council President) “a resident of the Council
district from which elected or appointed.” Id. § 207.
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.” Id. Members are further ineligible during their term “for appointment to any
County office or position carrying compensation” other than Council member or the
County Executive. Id.
3
This dispute centers on the prohibition in Charter § 207 against a member holding
“employment in the government of the State of Maryland[ or] Harford County” while
serving on the Council.1
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
1
As no party contends that the Board could be considered a government entity
within a “municipality in Harford County,” we do not consider that part of Charter § 207.
4
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 to the Board to pay
for debt service on bonds issued to fund Board facilities, as well as to fund construction of
and improvements to Board facilities.
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 Charter § 207
2
Among the non-County agencies that receive funding from the County, as
approved by the Council, are the Sheriff and Sheriff’s office, the Harford County Health
Department, circuit court personnel, State’s Attorney’s Office personnel, and the Harford
Soil Conservation District.
5
and the doctrine of incompatible positions. Mr. Bennett contended that the Board was
neither a State nor a County agency and, therefore, he was not precluded from serving on
the Council. Mr. Bennett counterclaimed for injunctive, declaratory, and mandamus relief
to force the County to permit him to serve on the Council.
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 Charter § 207. The court noted that even if the Board
were instead treated as a State agency, “the result [would] remain[] the same.” The court
accordingly entered a declaratory judgment and order in which it: (1) declared that
Charter § 207 “applies to public school teachers employed by the Harford County Board
of Education”; (2) declared that Mr. Bennett, due to his employment with the Harford
County Board of Education, “is not qualified to be a member of the Harford County
Council”; (3) ordered Mr. Bennett to “cure his lack of qualification . . . by terminating his
employment with the Harford County Board of Education”; and (4) enjoined Mr. Bennett
from acting as a member of the Council “unless and until he cures his lack of
qualification[.]”
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
3
At the November 8, 2022 general election, the voters of Maryland ratified a
constitutional amendment changing the name of the Court of Special Appeals of Maryland
to the Appellate Court of Maryland. The name change took effect on December 14, 2022.
6
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 Charter § 207 nor the doctrine of incompatible
positions precludes Mr. Bennett from serving on the Council while employed as a teacher
by the Board. Bennett, 483 Md. at 416. We therefore remanded the case to the circuit
court with instructions to enter: (1) a declaratory judgment that Mr. Bennett is qualified to
serve as a member of the Harford County Council while being employed as a teacher by
the Harford County Board of Education; and (2) any injunctive relief that may be necessary
and appropriate to implement and enforce that declaratory relief.
Id. We now explain the
basis for our order.
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
Charter § 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.
Mr. Bennett is employed by the Board. The dispositive question is thus whether the Board,
for purposes of the application of § 207, is a State entity, a County entity, or neither. The
7
answer is not straightforward. Statutes treat county boards of education as State entities
for some purposes, County entities for others, and hybrid or independent entities for yet
others. Our decisional law reflects that the character of county boards of education changes
depending on the context in which an issue arises. We therefore begin with an exploration
of the role of county boards of education as they relate to the State and the County.
A. The Statutory Scheme
Article VIII, § 1 of the Constitution of Maryland requires the General Assembly to
“establish throughout the State a thorough and efficient System of Free Public Schools,”
and to “provide by taxation, or otherwise, for their maintenance.” The framework the
General Assembly has created for that system of free public schools is contained in the
Education Article (2022 Repl.).
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. Educ. §§ 2-101, 2-102. The State Board, which
consists of 13 regular members and one student member, id. § 2-202(a), is charged broadly
with “[d]etermin[ing] the elementary and secondary educational policies of this State,” and
“[c]aus[ing] to be carried out those provisions of this article that are within its jurisdiction,”
id. § 2-205(b)(1) & (2).
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.” Id. §§ 2-204(c)(1); 2-302(a); 2-303(c)(1).
Through the state superintendent, the State Board “exercise[s] general control and
8
supervision over the public schools and educational interests of this State” and
“establish[es] basic policy and guidelines for the program of instruction for the public
schools.” Id. § 2-205(g)(2) & (h)(1). The State Board is authorized to “adopt bylaws,
rules, and regulations for the administration of the public schools,” id. § 2-205(c); prepare
and send to the Governor, after certification by the state superintendent, “the annual State
public school budget,” which includes State aid to counties, id. § 2-205(j); “explain the true
intent and meaning of the provisions of” the Education Article that are within its
jurisdiction and the bylaws, rules, and regulations it adopts, id. § 2-205(e)(1); and “decide
all controversies and disputes under these provisions,” id. § 2-205(e)(2). This Court has
described the State Board’s broad authority “as a visitatorial power of such comprehensive
character as to invest [it] with the last word on any matter concerning educational policy
or the administration of the system of public education.” Donlon v. Montgomery County
Pub. Schs., 460 Md. 62, 81 (2018) (quoting Bd. of Educ. of Prince George’s County v.
Waeldner,
298 Md. 354, 360 (1984)).
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.” Educ. §§ 3-102, 3-103. State law governs the size, composition, and
manner of selection of the members of each county board of education. See generally id.
§§ 3-105–3-1405. In Harford County, the Board consists of six elected members: one
from each Council district; three members appointed by the County Executive, subject to
the advice and consent of the Council; the county superintendent of schools (ex officio);
and one student member. Id. § 3-6A-01(b), (c) & (d). In the event of a vacancy of an
9
elected member of the Board, the Council is to appoint a qualified individual to serve for
the remainder of the term. Id. § 3-6A-01(f)(1).
County boards of education are responsible for “educational matters that affect the
counties.” Id. § 4-101(a). Each county board of education is responsible for selecting a
county superintendent, who is to serve as “the executive officer, secretary, and treasurer of
the county board.” Id. § 4-102; see also id. §§ 4-204, 4-205 (setting forth the powers and
duties of county superintendents). Upon the written recommendation of the county
superintendent, each county board is responsible for appointing and setting the salaries of
“all principals, teachers, and other certificated and noncertificated personnel.” Id. § 4-103.
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.” Id. § 4-108. To carry out
those duties, county boards may establish public schools that, if approved by the state
superintendent, “become[] a part of the State program of public education.” Id. § 4-109.
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.” Id. § 5-101(a)(1). Although budgets are submitted to county
governments, the contents and process for the submission, review, and approval of annual
10
budgets is prescribed by State law, which sets out in detail the categories that must be
included in the budget for receipts and expenses. Id. § 5-101(b). Notably for our purposes,
all “[i]nstructional salaries,” including the salaries of all teachers, aides, psychological
personnel, guidance counselors, and library personnel, constitute a single subcategory of a
county board’s budget. Id. § 5-101(b)(2)(iii).
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. Id. § 5-102(b). The county
executive is first charged with identifying in writing categories of the budget to deny or
reduce “and the reason for the denial or reduction.” Id. § 5-102(c)(2). The budget then
goes to the county council, which may “restore any denial or reduction made by the county
executive.” Id. § 5-102(c)(3). The budget must include at least the minimum amount of
funding required by a formula set forth in § 5-2354 of the Education Article. Id. § 5-103(a).
If a county council does not ultimately approve the full amount requested by a county
board, the county board must submit to the council, “within 30 days after the adoption of
the budget, a report indicating how the alterations to the budget will be implemented,
accompanied by reasonable supporting detail and analysis.” Id. § 5-103(c)(2). The county
council is then obligated to levy property taxes that, together with other available revenue,
“will produce the amounts necessary to meet the appropriations made in the approved
annual budget of the county board.” Id. § 5-104(a). During a budget year, a county board
may transfer funds within major budget categories on its own, but must obtain the county
4
Section 5-103(a) of the Education Article references § 5-202(d)(1)(i), but § 5-202
was renumbered to § 5-235 in 2021. 2021 Md. Laws ch. 36.
11
council’s approval to transfer funds between major budget categories. Id. § 5-105(b)(1) &
(2).
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. Id. §§ 6-101, 6-201(a)(1). The county
superintendent is responsible for nominating, for the county board’s approval, all
professional assistants in the county superintendent’s office and all principals, teachers,
and other certificated personnel. Id. § 6-201(b)(1). The county superintendent is also
responsible for the assignment, transfer, and recommendation for promotion of those
personnel. Id. § 6-201(b)(2). On recommendation of the county superintendent, a county
board may suspend or dismiss a teacher on specified grounds. Id. § 6-202(a). An appeal
from such a decision may be made to the State Board. Id. § 6-202(a)(4).
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, Md. Code Ann., State
12
Gov’t §§ 12-101–12-110 (2021 Repl.; 2022 Supp.) & Cts. & Jud. Proc. § 5-522 (2020
Repl.); and tort claims against local government entities, including all counties and
Baltimore City, and related protections for their employees, are governed by the Local
Government Tort Claims Act, Cts. &. Jud. Proc. §§ 5-301–5-304. But tort claims against
county school boards, including the Board, and protections for their members and
employees, are governed by a separate tort claim and immunity regime applicable only to
county boards of education. See id. § 5-518; see also Neal v. Balt. City Bd. of Sch.
Comm’rs, 467 Md. 399, 422-24 (2020) (contrasting approaches taken under the Maryland
Tort Claims Act and Local Government Tort Claims Act with Courts and Judicial
Proceedings § 5-518). For purposes of tort claims handling, indemnification, and
protection of personnel, county school boards are thus treated both separately and
differently from both State entities and local government entities.
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 Md. Code Ann., Gen’l Provs. §§ 5-101–5-716 (2019 Repl.;
2022 Supp.). Separately, “each county and each municipal corporation” is required to
enact its own regulations governing the public ethics of local officials that, although similar
to those applicable to State officials and employees, may be modified to be more relevant
“in that jurisdiction.” Id. §§ 5-807–5-810. And separately still, county school boards are
required to adopt regulations governing the ethics of their own members and, if they
choose, their officials and employees, that, although similar to the State provisions, may
13
be modified to be more relevant in “that school system.” Id. §§ 5-815–5-818. Other
statutes that distinguish between the State and the various governmental entities within it
also further distinguish between counties and county boards of education, among other
subdivisions. See, e.g., id. § 4-101(j) (defining a “political subdivision” of the State, for
purposes of the Maryland Public Information Act, to include a county, a municipal
corporation, an unincorporated town, a school district, or a special district); State Gov’t
§ 10-1301(f)(2) (defining “unit,” as applicable to non-State entities, as including “a county,
municipality, bi-county, regional, or multicounty agency, county board of education,
public corporation or authority, or any other political subdivision of the State”).5
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
5
Provisions of the Harford County Code similarly treat the Board as an entity
separate from the County and the State. See, e.g., Harford County Code § 235-7(A)(1)(d)
(“The applicant shall also state how many channels, what facilities and what services shall
be provided free of charge to the County, the school systems and the public[.]”); id.
§ 235-10(F) (“On the County and educational channels, the company shall carry or
cablecast such programming as designated by the County or its designated representative
and the school system or its designated representative, respectively.”); id. § 68-8 (“The
government of the county, the County Board of Education and the Board of Trustees of the
Harford Community College are hereby exempted from the provisions of this chapter.”).
14
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 immunity.6
Id. at 80-81. However, we also noted
that it was possible for an entity to “qualify as a State agency for some purposes, while
being classified as a local agency for other purposes.”
Id. at 83 (quoting Wash. Suburban
Sanitary Comm’n v. Phillips,
413 Md. 606, 632 (2010)).7 Looking to our more recent
6
See, e.g., Lee-Thomas v. Prince George’s County Pub. Schs., 666 F.3d 244, 248-49
n.5 (4th Cir. 2012) (discussing state and federal decisions recognizing that Maryland’s
county school boards are “instrumentalities of the State” for Eleventh Amendment
immunity purposes); Jones v. Frederick County Bd. of Educ.,
689 F. Supp. 535, 538 (D.
Md. 1988) (holding, in the context of an employment discrimination claim, that a county
school board member, superintendent, and school principal, when employed by a county
school board, are state officials protected by Eleventh Amendment immunity); Bd. of Educ.
of Balt. County v. Zimmer-Rubert,
409 Md. 200, 205-06 (2009) (stating, in connection with
sovereign immunity, that this Court has “long considered county school boards to be State
agencies”); Norville v. Anne Arundel County Bd. of Educ.,
160 Md. App. 12, 62 (2004)
(concluding that a county school board was “an arm of the State” and so protected by
sovereign immunity), vacated on other grounds sub nom. Anne Arundel County Bd. of
Educ. v. Norville,
390 Md. 93 (2005).
7
In Phillips, in the course of concluding that the Washington Suburban Sanitary
Commission was a local entity for certain purposes, we determined that the Commission
“is a ‘hybrid’ entity, which defies simple and definitive categorization as either a ‘State’ or
15
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).
16
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,”
17
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
8
In Donlon, we went on to observe that during the pendency of that litigation, the
General Assembly had expanded whistleblower protection to employees of county school
boards, but chose to do so by enacting a new whistleblower protection law applicable only
to county school boards, rather than by expanding or clarifying the reach of the State
Whistleblower Protection Law. 460 Md. at 97-102. That is yet another example of the
General Assembly treating county boards of education separately from both State and
county entities.
18
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
Charter § 207 establishes the qualifications to be a member of the Council. One of
those requirements is that the individual may not “hold . . . employment in the government
of the State of Maryland[ or] Harford County.” We must therefore determine whether the
Board is of State, county, or independent character in the context of employment with the
Board serving as a qualification for public office in the County.
The circuit court concluded that the Board is a County agency for purposes of
Charter § 207 because “the issues springing from the controversy here are born from the
Board’s budget and the Council’s role in the Board’s budget.” Observing that this Court
in Chesapeake Charter had concluded that county school board budgetary issues are local
in nature, the circuit court determined that the Board was a County agency for purposes of
Charter § 207.
If Charter § 207 were a budgetary provision, we would agree with the circuit court’s
reasoning. But it is not. Charter § 207 establishes qualifications to hold office as a member
of the Council, none of which are either expressly or implicitly tied to budget
considerations. They appear in the middle of Article II of the Harford County Charter,
which is titled “Legislative Branch” and contains provisions relating to the personnel,
powers, duties, and operations of the Council. Provisions of the Charter relating to the
budget are found in Article V, titled “Budget and Finance.” Our focus must therefore be
19
on the character of the Board for purposes of employment with it serving as a qualification
(or, here, disqualification) for public office.
In relevant part, Charter § 207 bases an individual’s qualification to become a
member of the Council on the individual’s status as an employee (or not) of certain
governments, untethered from any role or function of those governments. Where
applicable, the limitation thus applies equally to all employees of the State, the County, or
any municipality within the County, regardless of the roles those employees perform or
whether their positions are in any way related to any business before the Council. The
limitation applies equally to an administrative assistant employed by the Maryland
Department of Labor, a laborer employed by the State Highway Administration, an
inspector with the Harford County Liquor Control Board, and the Director of Finance of
the Town of Bel Air.
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 Charter § 207 applies to county boards of education, it does
so irrespective of the character of their operation in any particular area.
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
20
interpretation: whether the framers of the Harford County Charter intended Charter § 207
to render employees of the Board ineligible to serve simultaneously on the Council. To
resolve that question, we turn to our canons of statutory construction, which “apply with
equal force to the interpretation of a charter provision.” Prince George’s County v.
Thurston, 479 Md. 575, 586 (2022). As we set forth earlier this term:
“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,
21
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
character, and Charter § 207 does not expressly mention the Board, the language of the
provision sheds no light on whether the Board should be considered a State or County
entity, or neither, for purposes of determining the qualifications of a member of the
Council.
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
22
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 Charter § 502, which contains definitions “of terms used
in” Article V, the Budget and Finance Article. The first definition is: “The term of
‘County’ or ‘County government’ shall include all agencies and their officers, agents, and
employees who receive or disburse County funds.” As a recipient of County funds, the
Board falls squarely within that definition, which the County encourages us to apply as
well to Charter § 207. To do so, however, we would have to ignore 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. Contrary to the
9
As we observed in Donlon, Ҥ 8-201 of the State Government . . . Article lists 19
[now 21] principal departments of the Executive branch of State government,” and “county
boards of education are not” among them. Donlon, 460 Md. at 82. As we also noted in
Donlon, the State Department of Education is not listed in § 8-201 either, but it is separately
identified as a “principal department of the State Government” in Education § 2-101. Id.
at 82 n.8. The Board is thus not identified in the laws of the State or the County as a
principal department or agency of either.
23
County’s view, the decision of the framers of the Charter to expressly limit the applicability
of that broad definition of “County” only to the Budget and Finance Article suggests that
they understood the term to have a narrower—or at least a different—meaning when used
elsewhere in the Charter.
Our consideration of “the purpose, aim, or policy” underlying Charter § 207,
FC-GEN, 482 Md. at 380, sheds little additional light on our inquiry. Section 207 does not
identify its purpose. It does not state why individuals employed by the State, the County,
or a municipality in the County are precluded from serving on the Council, nor is that
readily apparent from the set of entities included. If the intent underlying the restriction is
to avoid a conflict concerning the Council’s budgeting responsibilities, as the circuit court
seemed to conclude, it would appear to be both overly broad (in its application to all State
employees) and overly narrow (in its omission of non-governmental entities that receive or
benefit from County funding). An intent to avoid overlap with governmental entities over
which the Council exercises some measure of control also would not explain the inclusion
of State government employees. And an intent to avoid entanglement with all other
governmental entities, as suggested by the County, seems inconsistent with the omission
of the federal government—which, notably, is included in the analogous provision
applicable to the County Executive, see Charter § 305—and the governments of
neighboring jurisdictions. Nor is it readily apparent how precluding service by public
schoolteachers would further that goal. We are therefore unable to discern a clear
legislative purpose underlying Charter § 207 to aid in our interpretation.
24
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 Charter § 207, we
conclude that the provision is ambiguous with respect to whether employment with the
Board disqualifies an individual from simultaneous service on the Council. We therefore
turn to other indicia of legislative intent.
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
25
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 Charter § 502 was not intended to apply outside of Article V of the Charter. In
the first draft of the Charter, the term “County” was not defined in Article V. However,
§ 910(l), in what was then the General Provisions Article, provided: “The word ‘agency’
when used to designate a subordinate element of government shall be construed as
including all offices, departments, institutions, boards, commissions, and corporations of
the County government and, when so specified, all offices, departments, institutions,
boards, commissions, and corporations which receive or disburse County funds.” In a
letter, the County Superintendent of Schools expressed concern that the definition could be
interpreted as applying to the Board and expressed the Board’s view that it would not be
“appropriate for us to be considered an agency of County government.” The version of the
10
Ordinarily, the views expressed by one member of the legislative body would not
necessarily provide much insight into the intent of the entire body. State v. Phillips, 457
Md. 481, 488-89 (2018) (“The views expressed by individual members of the legislative
(or Constitutional) body as part of the debate may be considered, subject to the critical
caveat that those views may not have been shared by anyone else and, to that extent, may
be irrelevant.”). Here, however, Mr. Carson was one of just five members of the Charter
Board, and his statements were made without contradiction while seated with at least three
of the other members of the board in responding to questions raised about the draft charter
at a public hearing.
26
Charter that was ultimately adopted included the definition of “County” now contained in
§ 502, perhaps to identify Article V as the “so specified” portion of the Charter in which
all entities that receive or disburse County funds are to be treated as County agencies.
The legislative history of Charter § 207, alongside the plain language and context
of the provision, is sufficient to rule out the possibility that the framers of the Charter would
have viewed employees of the Board as County employees for purposes of that provision.
It does not, however, resolve whether they would have viewed employees of the Board as
State employees. Nor have the parties pointed us to any other indicia of legislative intent
that provide a definite conclusion.
Considering the remaining unresolved ambiguity, we reach our resolution of the
scope of Charter § 207 as applied to employees of the Board by invoking the canon of
construction establishing “a presumption in favor of the eligibility of one who has been
elected or appointed to a public office.” Green, 144 Md. at 89; see also Abrams,
398 Md.
at 179-80. As described succinctly in an Opinion of the Attorney General:
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).
27
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.
Id.11
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.”);
11
We also discussed the same presumption in Abrams but determined that it was
inapplicable there because the constitutional provision in dispute was not ambiguous. 398
Md. at 179-80.
28
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 Charter § 207, we
hold that it does not preclude Mr. Bennett from serving as a member of the Council while
maintaining his position as a public schoolteacher employed by the Board.
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
29
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
30
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. Educ. §§ 6-203, 6-202(a)(4); see,
31
e.g., Donlon, 460 Md. at 70-73. The Council plays no role in any aspect of the supervision
of Board employees.
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, Educ. §§ 2-205(b), (c) & (g), 6-101,
6-202(c)(3), the County Superintendent and the Board in some combination hold the power
to appoint, id. § 4-103(a), remove, id. § 6-202(a), and set the salary, id. §§ 4-103(a)(2),
6-201(f), of a public schoolteacher. The Council’s role with respect to the Board’s budget
is also limited, constrained to approving or reducing broad categories of spending, one of
which is all salaries of all teachers, administrators, and other personnel in the system. Id.
§§ 5-102(b), 5-105(b). If the Council fails to approve the full amount requested in the
Board’s budget, it is for the Board to decide how to adjust its spending. Id. § 5-103(c).
Simply put, the Council’s role concerning the Board’s overall budget does not provide it
with any power to appoint, remove, or set the salary of an individual teacher.12
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
12
The parties included in the record an advice letter from Assistant Attorney
General Kathryn M. Rowe opining that it would not “violate the common law doctrine of
incompatibility of offices for a teacher in Carroll County to also serve as a County
Commissioner.” Assistant Attorney General Rowe observed that “[t]he County
Commissioners do not have supervisory authority over teachers, do not set policy for the
school system, and do not have the authority to hire or fire teachers.” She further noted
that the Commissioners’ limited impact on the school system’s budget, “and thus some
possible impact on teachers[’] salaries,” was “too attenuated to create incompatibility
between the positions.” At least as applied to the facts here, we agree with that analysis.
32
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. Id. § 3-6A-01(d)(1)(ii)
& (f)(2). And, in the case of a mid-term vacancy in any of the six elected seats on the
Board, the Council may fill the vacancy “for the remainder of the term.” Id.
§ 3-6A-01(f)(1). But neither of those responsibilities provides the Council with any
supervisory authority over a public schoolteacher, or with the ability to hire, fire, discipline,
or set the salary of such a teacher. The Council’s role is simply too remote from the
position of any individual teacher to violate the doctrine of incompatibility.13
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.
13
We offer no opinion concerning whether any applicable code of ethics would
require Mr. Bennett to recuse himself from voting on any individual issue that may come
before the Council during his tenure.
33
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 on February 15, 2023 and
remanded the case to the circuit court for entry of: (1) a declaratory judgment that
Mr. Bennett is qualified to serve as a member of the Harford County Council while being
employed as a teacher by the Harford County Board of Education; and (2) any injunctive
relief that may be necessary and appropriate to implement and enforce that declaratory
relief.
34
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,
Md. Code Ann., State Pers. &
Pens. §§ 5-301–5-314 (1993, Repl. Vol. 2015)); Beka Indus., Inc. v. Worcester Cnty. Bd.
of Educ.,
419 Md. 194 (2011) (holding county boards of education are state governmental
entities for purposes of sovereign immunity under Md. Code Ann., State Gov’t § 12-201
(2014, Repl. Vol. 2021)); Chesapeake Charter, Inc. v. Anne Arundel Cnty. Bd. of Educ.,
358 Md. 129 (2000) (county boards of education are not state governmental entities for
purposes of the General Procurement Law,
Md. Code Ann., State Fin. & Proc. §§ 11-
101(x), 11-202 (1985, Repl. Vol. 2021)). Respectfully, whether a particular State statute—
which reflects only the intent of the General Assembly—applies to a local board of
education tells us little about the meaning and intent behind section 207 of the Charter.
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.
Furnishing a free, public education system is a primary function of this State’s
government. Article VIII, Section 1 of the Maryland Constitution provides: “The General
Assembly, at its First Session after the adoption of this Constitution, shall by Law establish
throughout the State a thorough and efficient System of Free Public Schools; and shall
provide by taxation, or otherwise, for their maintenance.” The General Assembly carried
out this mandate by enacting the statutes contained in the Education Article. This Court
has previously described the constitutional and statutory framework as establishing a
“shared responsibility between State and local governments for public school education
2
and emphasizing the need for a measure of local control and initiative.” Hornbeck v.
Somerset Cnty. Bd. of Educ., 295 Md. 597, 630 (1983). Importantly, when we made that
statement, we relied on sources that predated the 1972 adoption of the Charter.
Id. & n.9
(citing Green Comm’n, Report of Maryland Commission to Re-Study and Re-Evaluate the
Philosophy and Practices of the Finances of the Public Schools (1962); Hughes Comm’n,
Report of Senate Committee on Taxation and Fiscal Matters (1963); and Hughes Comm’n,
Report of the Commission to Study the State's Role in Financing Public Education (1971)).
The framers of the Charter presumably understood the shared responsibility between the
governments of the County and the State in providing for and funding Harford County
public schools. The Charter’s various provisions should be construed in that light.
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.
3
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.” Charter § 502(a). It then defines “County funds”
as “any monies appropriated or approved by the Council or to which the County may at
any time have legal or equitable title.” Charter § 502(b).
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.
First, nothing in section 502 can be properly characterized as an “express limitation
on the scope” of the definitions set forth therein. The language on which the Majority
relies is found exclusively in the title of section 502, which reads in full: “Section 502.
Definition of terms used in this article.” That language does not constitute an “express
limitation on the scope” of section 502’s definitions. Rather, that language, combined with
the definitions that follow in section 502, provides the reader with interpretive tools to
make sense out of words and phrases that are repeatedly used in Article V, which is entitled
“Budget and Finance.” Relevant here, “County” or “County government” is used 65 times
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in the subsequent provisions of Article V. So, it makes sense that the framers saw fit to
define those words in that Article.
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
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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 provided
elsewhere in the Charter or otherwise in State law, an agency can be part of the County
government even if it is not under the control of the executive branch. And, in section 502,
the Charter does otherwise provide that the Board is part of the County government and
that a teacher is employed in the County government. Thus, by the plain language of
section 401, any tension between section 401 and section 502 is resolved in favor of the
latter. Sections 401 and 402 are not, therefore, impediments to construing sections 207 and
502 together.
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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. Md. Code Ann., Educ.
§ 3-6A-01(d)(1)(ii) (2008, 2022 Repl. Vol.). Presumably, the General Assembly
7
determined that such veto authority would have a meaningful impact on the constitution of
the Board.
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.
8
