Public Officers and EmployeesEducation – A State Superintendent of Schools Who is Appointed to a Vacancy in the Middle of a Term Serves for the Remainder of the Unexpired Term. ( 2021 )

Gen. 67] 67
PUBLIC OFFICERS AND EMPLOYEES
EDUCATION – WHETHER A STATE SUPERINTENDENT OF
SCHOOLS APPOINTED TO A VACANCY IN THE MIDDLE OF A
TERM SERVES FOR THE REMAINDER OF THE UNEXPIRED
TERM
April 21, 2021
Clarence C. Crawford
President, Maryland State Board of Education
You have asked for an opinion of the Attorney General on
whether, when the current State Superintendent of Schools (“State
Superintendent”) steps down on June 30, 2021, the Maryland State
Board of Education (the “State Board”) can offer a new State
Superintendent a full four-year term beginning on July 1, 2021,
instead of only the remaining three years in the term of the current
State Superintendent, which began on July 1, 2020. Although you
acknowledge in your request that § 2-302 of the Education Article
seems to provide that the State Superintendent’s successor must be
appointed to complete the remaining three years of the current
Superintendent’s term, you have asked us to consider whether the
State Board can nonetheless offer a full four-year term to the new
State Superintendent to begin on July 1, 2021. In the event that we
conclude that the State Board cannot offer a full four-year term to
the new State Superintendent, you have also asked for suggestions
as to legislative language that would permit the State Board to offer
a new full term to a State Superintendent hired to fill a vacancy in
the middle of a term.
For the reasons explained below, it is our opinion that,
assuming that the current State Superintendent resigns or retires in
June of 2021 before the expiration of her four-year term, the State
Board cannot offer the next State Superintendent a new four-year
term starting July 1, 2021. Rather, the statute expressly provides
that “[t]he State Board shall appoint a new State Superintendent
to fill a vacancy in that office for the remainder of the unexpired
term” and does not provide for any exceptions to that rule. Md.
Code Ann., Educ. (“ED”) § 2-302(e). Thus, the next appointee
must be appointed to serve the remainder of the current State
Superintendent’s term. While it is beyond our role to tell the
General Assembly the precise language that it should use if it wants
to permit the State Board to give a full four-year term to a State
Superintendent appointed to fill a mid-term vacancy under these
68 [106 Op. Att’y
circumstances, we are able to provide examples of statutes that
could be interpreted in that manner.
I
Background
Maryland law governing the appointment and term of the
State Superintendent dates back nearly 200 years. In 1825, the
General Assembly passed a law providing that “there shall be
constituted and appointed by the governor and council, an officer
to be known and distinguished as the superintendent of public
instruction.” 1825 Md. Laws, ch. 162, § 1. Almost forty years
later, during the Civil War, the delegates to the Constitutional
Convention of 1864 wrote the office of the State Superintendent
into Maryland’s Constitution. Although ultimately short-lived,
Article VIII, § 1 provided that “[t]he Governor shall, within thirty
days after the ratification by the people of this Constitution,
appoint, subject to the confirmation of the Senate, at its first session
thereafter, a State Superintendent of Public Instruction, who shall
hold his office for four years and until his successor shall have been
appointed and shall have qualified.” Md. Const., Art. VIII, § 1
(1864). Section 4 of the same Article required that the General
Assembly, at its first session after adoption of the 1864
Constitution, “provide a uniform system of Free Public Schools[.]”
Thus, in 1865, the Legislature established that system and provided
that supervision and control of public instruction would be vested
in a State Board of Education and “a State Superintendent of Public
Instruction, appointed by the Governor, subject to the confirmation
of the Senate.” 1865 Md. Laws, ch. 160.
In 1867, a constitutional convention met again and drafted a
fourth version of Maryland’s Constitution. This Constitution,
which was ratified in September 1867, contained a far less specific
education clause, leaving it to the Legislature to determine
questions of control and supervision. That new provision directed
that the General Assembly, at its first session after adoption of the
Constitution, “establish, throughout the State, a thorough and
efficient system of free public schools.” Md. Const., Art. VIII, § 1
(1867). The Constitution also provided that “[t]he system of public
schools, as now constituted, shall remain in force until the end of
the said first session of the General Assembly, and shall then
expire, except so far as adopted, or continued, by the General
Assembly.” Md. Const., Art. VIII, § 2. These same provisions are
contained in our current Constitution.
Gen. 67] 69
Freed from any specific constitutional prescriptions regarding
the structure, organization, and control of the public education
system, the General Assembly, in 1868, designed a body of public
education law that committed control entirely to local school
districts; there was no centralized supervision role for the State.
See 1868 Md. Laws, ch. 407 (providing that “[e]ducational matters
affecting a County shall be under the control of a Board of County
School Commissioners”). This scheme of local control lasted for
a few years, until 1872, when the General Assembly passed a law
that gave some control and supervision back to the State. See 1872
Md. Laws, ch. 377 (providing that “[e]ducational matters affecting
the State and the general care and supervision of public education
shall be entrusted to a State Board of Education”); see also Md.
Code, Art. 27, §§ 2-4 (1879) (providing supervisory roles for a state
board of education, a board of county school commissioners, and
district school trustees).
The role of State Superintendent reappeared in the State’s
education laws in 1900, when the General Assembly amended what
was by then Article 77 of the Maryland Code. The amendment
provided that “the Governor, by and with the advice and consent of
the Senate, shall appoint a competent person as Superintendent of
Public Education for the State of Maryland, who shall serve for a
term of four years, beginning on the first Monday in May next
ensuing his appointment, and until his successor has been
appointed and qualified according to law.” 1900 Md. Laws, ch.
428.
In 1914, the Legislature created a commission to conduct a
survey of public schools in Maryland. 1914 Md. Laws, ch. 844.
The commission was “directed to report its findings, with
recommendations to the Governor, which report shall be
transmitted by the Governor to the General Assembly at its session
of 1916.” Id. The resulting report made recommendations for
changes to the State Superintendent provisions. See Abraham
Flexner & Frank P. Bachman, Public Education in Maryland, A
Report to the Maryland Educational Survey Commission 22-29
(1916) (“Flexner & Bachman Report”). In particular, the report
noted that the current law provided that the State Superintendent
“holds office for four years—as does the Governor who appoints
him[,]” id. at 22, and recommended that the State Superintendent,
“who is the state’s educational executive, should be chosen, not by
the Governor, but by a board as far removed from political
influences as possible, for a term either indefinite or long enough
to avoid danger of political complications.” Id. at 23.
70 [106 Op. Att’y
Following the Flexner & Bachman Report, the General
Assembly adopted the commission’s recommendation that the
Governor be stripped of appointment authority but declined to alter
the length of the State Superintendent’s term. See 1916 Md. Laws,
ch. 506 (“The state superintendent of schools shall be appointed by
the state board of education for a term of four years. . . . In case of
vacancy due to any cause, the state board of education shall fill the
vacancy, and the appointment shall be for the unexpired term, and
until a successor shall qualify.”). This amendment also represented
the first time that the General Assembly explicitly addressed what
was to occur in the event of a vacancy in the position of the State
Superintendent.
The provision continued essentially unaltered in the Maryland
Code until 1969. See, e.g., Md. Code, Art. 77, § 27 (1939). In that
year, the Maryland General Assembly amended Article 77 by
specifying that the State Superintendent’s four-year term was to run
“from the first day of July next succeeding his appointment.” 1969
Md. Laws, ch. 405. This change was recommended in the 1968
Report of the School Law Revision Commission. See Report of
the School Law Revision Commission 35 (Jan. 1, 1968) (“1968
Report”) (“This section establishes the beginning date of the term
of office of the State Superintendent of Schools. At present the law
is silent on the subject.”); see also 27 Opinions of the Attorney
General 113, 115-16 (1942) (advising that, before the 1969
revision, the State Superintendent’s term was to begin on June 1
every four years, starting from June 1, 1916).
Finally, in 1978, Article 77 was repealed and recodified as the
Education Article. See 1978 Md. Laws, ch. 22. The provisions
governing the appointment of the State Superintendent remained
substantively the same, with only minor changes for style and
clarity. See id. (Revisor’s Note). Under the relevant provision as
it exists today, “[t]he State Superintendent shall be appointed by
the State Board for a term of 4 years beginning on July 1 after the
Superintendent’s appointment and serves until a successor is
appointed and qualifies,” ED § 2-302(a), and “[t]he State Board
shall appoint a new State Superintendent to fill a vacancy in that
office for the remainder of the unexpired term,” ED § 2-302(e).
II
Analysis
Your question is one of statutory interpretation. Therefore,
we must determine the intent of the General Assembly in enacting
the current law governing the appointment and term of the State
Gen. 67] 71
Superintendent. Here, the relevant question is whether the General
Assembly intended that a State Superintendent appointed to fill a
mid-term vacancy be appointed to serve the remainder of the
previous Superintendent’s term or intended that a State
Superintendent would always begin a full four-year term on July 1
following the appointment regardless of whether the previous
Superintendent had been in the middle of a term. 1
To ascertain the intent of the General Assembly, we first look
to the words of the statute and determine, if possible, their plain
meaning. Kushell v. Department of Nat. Res., 385 Md. 563, 576
(2005). “In construing the plain language, ‘[a] court may neither
add nor delete language so as to reflect an intent not evidenced in
the plain and unambiguous language of the statute; nor may it
construe the statute with forced or subtle interpretations that limit
or extend its application.’” Id. at 576-77 (quoting Price v. State,
378 Md. 378, 387 (2003)). If the language of the statute is
unambiguous, then effect must be given to the statute as written.
Id. at 577.
Turning to the language of ED § 2-302, the Legislature made
clear that a State Superintendent appointed to fill a mid-term
vacancy serves the remainder of the previous Superintendent’s
term. The General Assembly explicitly provided that, when a
vacancy occurs during a regular four-year term, “[t]he State Board
shall appoint a new State Superintendent to fill a vacancy in that
office for the remainder of the unexpired term.” ED § 2-302(e).
Such explicit language leaves no room for doubt that such an
appointee is to serve the remainder of the predecessor’s unexpired
term, rather than receiving a new four-year term. Cf. Sansbury v.
Middleton, 11 Md. 296, 313-14 (1857) (holding that a clerk
appointed to fill a mid-term vacancy was entitled to a full term but
contrasting the provision at issue there from other constitutional
provisions containing language, like that at issue here, explicitly
limiting service of mid-term successors to the remainder of an
unexpired term); accord Wilson v. Shaw, 188 N.W. 940, 943 (Iowa
1922) (“When a person is appointed to fill a vacancy for an
1
In some cases, courts frame this type of question as whether the term
is intended to run with the office (i.e., a new term of office begins every
four years on July 1) or with the officer (i.e., a new four-year term begins
with the appointment of a new officer, regardless of how long the
previous officer in that position served). See, e.g., People v. Nickel, 100
P. 1075, 1076 (Cal. Ct. App. 1909). For clarity and precision, we will
focus on the specific question asked rather than using this shorthand
here.
72 [106 Op. Att’y
unexpired term, the unambiguous meaning is that he is to hold for
the same term as the person whose place he takes.”); 67 Cal. Op.
Att’y Gen. 220 (1984) (“To hold that the terms run with the officer
would have the additional effect of rendering meaningless the
language . . . providing that vacancies will be filled only for the
balance of the unexpired term.”).
Although no Maryland appellate court has yet decided this
question under ED § 2-302, at least one case addressed a similar
provision. See Ash v. McVey, 85 Md. 119 (1897). That case
involved the appointment of George Biddle, in 1892, to a term on
the Board of School Commissioners for Cecil County. According
to the statute as it existed at the time, Mr. Biddle’s four-year term
began on the first day in August following his appointment. See Md.
Code, Art. 77, § 6 (Suppl. 1898), as amended by 1892 Md. Laws,
ch. 341. Mr. Biddle resigned, however, in December of 1892,
during a recess of the Legislature. The statute provided that, in the
event of such a vacancy during a recess of the General Assembly,
“the Governor shall have power to appoint a qualified person to fill
the vacancy for the unexpired term[.]” Md. Code, Art. 77, § 25
(Suppl. 1898) (emphasis added). The Governor subsequently
appointed George Ash to fill the vacancy, and the Senate confirmed
Mr. Ash at the next session of the Legislature, in January of 1894.
Then, in January of 1896, presumably in anticipation of the
upcoming expiration of Mr. Ash’s term on July 31, 1896, the
Governor appointed S.G. Bye as Mr. Ash’s successor. However,
the Senate failed to confirm the new appointee before it adjourned.
Eventually, at the end of the four-year term that had originally
begun with Mr. Biddle, the Governor appointed George McVey to
succeed Mr. Ash.
The dispute before the Court of Appeals was essentially about
who had the right to occupy the seat on the Cecil County Board of
School Commissioners—Mr. Ash or Mr. McVey. The precise
question, which involved a constitutional provision governing
recess appointments, was different than the question you ask here,
but the Court’s interpretation of Article 77, §§ 6 and 25 in the
course of answering that other question is nevertheless instructive.
The Court found that it was “clear” that the appointment of Mr.
Ash as a school commissioner in December of 1892 was for the
unexpired term of his predecessor. Ash, 85 Md. at 119. Looking
at Article 77, § 25’s provision that “the governor shall have power
to appoint a qualified person to fill the vacancy for the unexpired
term,” the Court said that “[t]he plain meaning of this section of the
statute is that a person appointed to fill a vacancy holds for the same
term as the person whose place he takes.” Id.
Gen. 67] 73
Given the similarities between the statutory provisions at
issue in Ash and the statute here, that case suggests that the plain
meaning of ED § 2-302(e) is that “a person appointed to fill a
vacancy holds for the same term as the person whose place he
takes.” Ash, 85 Md. at 119. That conclusion is also consistent with
our characterization, in a 1942 opinion, of an earlier version of
what is now ED § 2-302 as establishing fixed terms for the State
Superintendent that ran every four years from a specific date in
1916. See 27 Opinions of the Attorney General at 115-16
(involving the version of the statute in place before the Legislature
expressly provided that the Superintendent’s term was to begin on
July 1 after the Superintendent’s appointment).
Although the language of ED § 2-302 is plain and we need
not go any further, we have also examined the legislative history of
the enactment as a “check” on the reading of a statute’s plain
language, Washington Gas Light Co. v. Maryland Pub. Serv.
Comm’n, 460 Md. 667, 686 (2018), and that history is consistent
with our interpretation. Beginning in 1900, the Legislature specified
that the State Superintendent’s term was to be four years, 1900 Md.
Laws, ch. 428, and then further amended the State Superintendent
provisions in 1916 to vest appointment power with the State Board
rather than the Governor, 1916 Md. Laws, ch. 506. The 1916
amendment was the result of a report that had recommended that
the State Superintendent be chosen “by a board as far removed
from political influences as possible, for a term either indefinite or
long enough to avoid danger of political complications.” Flexner
& Bachman Report at 23.
The 1916 amendment was also the first time that the
Legislature specified that, in case of a vacancy in the office of the
State Superintendent, an appointment to fill the vacancy “shall be
for the unexpired term,” which makes sense given the purpose of
the amendment to better insulate the State Superintendent from
politics. Id. After all, an office of State Superintendent that has a
defined, predictable term is consistent with an intention to keep that
office removed from political whims and influences. No matter
who holds the governorship—and which Governor’s appointees sit
on the State Board of Education—the State Superintendent holds a
four-year term that will begin and end on the same fixed dates and,
in the event of a vacancy, the new appointee simply fills out the
predecessor’s term. Such design presumably makes it more difficult
and less tempting for a Governor (through the Governor’s
appointees on the State Board) to try to force the ouster of a State
Superintendent before the Superintendent’s term ends and also
74 [106 Op. Att’y
provides a sense of stability within the leadership of Maryland’s
public education system. 2 Thus, since at least 1916, the Legislature
has, by the words of the statute, indicated a clear intent that a State
Superintendent appointed to fill a mid-term vacancy is appointed to
serve the remainder of the previous Superintendent’s unexpired term.
The history of the statute is entirely in line with its plain language.
Finally, the historical practice under the statute aligns with
our interpretation of ED §§ 2-302(a) and 2-302(e). Starting in
1900—when the Legislature reintroduced the role of the State
Superintendent—there have been eleven individuals who have
served as State Superintendent for either a full or interim term, or
both, and the terms have run every four years from that first
appointment.
M. Bates Stephens served as State Superintendent from 1900
until 1920, i.e., five four-year terms. See Maryland Manual 1900
at 155 (listing M. Bates Stephens as State Superintendent and
indicating his first term expired in 1904); Maryland Manual 1920
at 127 (listing Mr. Stephens as State Superintendent). Albert S.
Cook, his successor, also served for a total of twenty years, or five
four-year terms. See Maryland Manual 1921 at 16 (listing Albert
S. Cook as State Superintendent). In 1940, Thomas G. Pullen, Jr.
was appointed State Superintendent and held the post until 1964,
or for six four-year terms. James A. Sensenbaugh followed from
1964 until 1976—three four-year terms. Starting in 1976, David
W. Hornbeck also served three four-year terms as State
Superintendent, from 1976 until 1988. See generally Editorial, Our
View: The Way Md. Picks Its State Superintendent Has Worked for
100 Years, Balt. Sun, Feb. 19, 2016, at 16A (detailing history of
State Superintendent appointments beginning with Mr. Cook,
including lengths of terms).
The same has been true more recently even when some State
Superintendents resigned before the end of their terms. Joseph L.
Shilling was appointed in 1988 and resigned three years into his
four-year term. See Amy Goldstein, Md. Selects School Chief After
One Interview; Ex-Hornbeck Aide Schilling to Succeed Him, Wash.
2
Members of the State Board of Education are appointed by the
Governor, with the advice and consent of the Senate, ED § 2-202(a), and
serve staggered terms of four years, ED § 2-202(d)(1). Thus, an
incoming Governor does not have the power to immediately appoint all
of the members of the State Board. The statute also provides limited
reasons for the State Board to remove a State Superintendent:
immorality, misconduct in office, insubordination, incompetency, and
willful neglect of duty. ED § 2-302(d).
Gen. 67] 75
Post, June 28, 1988. The State Board appointed Nancy Grasmick
to fill the vacancy for the remainder of Dr. Shilling’s term, and after
being reappointed she then served until 2011, when she resigned
the post three years into her fifth four-year term. Liz Bowie et al.,
Grasmick Announces She’ll Retire in June, Balt. Sun, Mar. 31,
2011, at 1A. Bernard J. Sadusky was then appointed interim State
Superintendent for the remainder of Dr. Grasmick’s term, and in
2012, Lillian M. Lowery was appointed to a full four-year term.
Liz Bowie, Lowery to Head State’s Schools, Balt. Sun, Apr. 21,
2012, at 1A. Dr. Lowery resigned in 2015. Jack R. Smith then
served as interim State Superintendent from 2015 until the end of
Dr. Lowery’s four-year term in 2016. Finally, in 2016, the current
State Superintendent, Karen B. Salmon, was appointed. Liz
Bowie, Salmon to Lead State’s Schools: Ex-Administrator on
Shore Appointed as Md. Superintendent, Balt. Sun, May 25, 2016,
at 1. Her four-year term ended in 2020. As you have indicated in
your request, though she was appointed to another four-year term
in 2020, she is expected to resign and leave the position on June
30, 2021.
Thus, it appears that the State Board has consistently adhered,
in practice, to § 2-302(e)’s requirement that a State Superintendent
appointed to fill a vacancy that occurs during a four-year term is
appointed for the unexpired portion of that four-year term. Given
all of the above—especially the unambiguous language of the
statute—it is clear that ED § 2-302 does not permit the State Board
to offer a full four-year term to the new State Superintendent
appointed to fill the mid-term vacancy that the State Board
anticipates will occur in June of this year. 3
3
To be clear, there might be situations when the State Board could
appoint someone to fill a mid-term vacancy as State Superintendent (for
the remainder of the unexpired term) and also, at the same time,
prospectively appoint that same person to the full four-year term that is
to begin after the end of that unexpired term. It is generally “permissible
for an appointing authority to make appointments prospectively, i.e., to
announce and put in motion the appointment of a person to fill a
prospective vacancy before the vacancy actually occurs, so long as the
vacancy will, in fact, exist when the new appointment becomes
effective” and so long as “the vacancy to be filled by the prospective
appointment [is] certain to exist while the appointing authority is still
empowered to fill the vacancy.” Bryan v. Makosky, 380 Md. 603, 611-
12 (2004). The statute governing the appointment of the State
Superintendent also appears to contemplate that the State Board can
make prospective appointments under at least some circumstances, given
76 [106 Op. Att’y
You have provided us with four reasons why you nonetheless
believe the law should afford the State Board the flexibility to offer
the next State Superintendent a full four-year term instead of the
three years remaining on Dr. Salmon’s current term. First, you note
that the current State Superintendent’s tenure was extended
because of the COVID-19 pandemic, in order to allow her to
provide continuity and stable leadership to the Maryland State
Department of Education and the State Board. Second, you have
been advised to expect a “highly competitive search environment”
with more superintendent vacancies than usual, and you point out
that “top candidates tend to favor longer employment terms.”
Third, you state that, because Maryland is facing an unprecedented
education crisis due to the pandemic, the next State Superintendent
must be an “exceptional educational executive leader,” and you
worry that, without such a leader, many students will have to live
with lifetime economic and societal consequences of their learning
loss. Finally, you have indicated that, if Maryland does not
accelerate learning in the wake of the pandemic, the State will
suffer economic costs, including “a significant drop in GDP and
that it provides for a term “beginning on July 1 after the Superintendent’s
appointment,” ED § 2-302(a) (emphasis added)—a provision which
makes sense only if the State Board can make the appointment at some
point before the vacancy that is to occur on July 1. However, the State
Board cannot make a prospective appointment this far in advance to a
term that does not begin until July 1, 2024. Under the common law rule,
“a prospective appointment may not be made to fill a vacancy that is not
certain to occur during the term of office of the appointing authority.”
Bryan, 380 Md. at 612. Here, it appears that all of the members of the
current State Board have terms that will expire before July 1, 2024. It is
beyond the scope of this opinion to determine exactly when a multi-
member body like the State Board becomes the “appointing authority”
empowered to fill a prospective vacancy, see Letter from Sandra Benson
Brantley, Assistant Attorney General, to Delegate Pamela D. Beidle at 3
(April 26, 2016) (summarizing differing views of the law on that issue),
but it surely cannot qualify when all its members have terms of office
that expire before the date the vacancy is certain to occur. And even if
that were not the case, ED § 2-302(a) arguably permits the Board to make
a prospective appointment only in the year before the vacancy is certain
to arise—i.e., not before July 2, 2023, for a term that is to begin on July
1, 2024—even when the common law would allow the appointment.
Otherwise, the State Superintendent could not begin the term on the July
1 “after the Superintendent’s appointment,” as is contemplated by the
statute. Of course, nothing prevents the State Board, once it has the
power to do so, from reappointing the new State Superintendent to the
full four-year term that will begin on July 1, 2024. But it cannot bind
itself to do that now.
Gen. 67] 77
decreased competitiveness in [its] ability to attract and maintain
high paying industries.”
None of those reasons, however, allow for an exception to the
plain language of the statute. Though it is true that “the plain-
meaning rule is not rigid[,]” Kaczorowski v. Mayor and City
Council of Baltimore, 309 Md. 505, 513 (1987), the types of
considerations that you have raised are generally relevant only
when the statute is “susceptible of more than one meaning.” Id.(quoting Tucker v. Fireman’s Fund Ins. Co., 308 Md. 69, 75
(1986)). That is not the case here, as the statutory language is clear
and does not admit of any exceptions. In light of the plain language
of the statute, the policy concerns you cite are more properly
directed to the General Assembly.
As a final matter, you ask for suggestions as to how the statute
could be amended to permit the State Board to offer a new, full
term to a State Superintendent hired to fill a vacancy in the middle
of a term. There are likely several different ways that such a change
could be accomplished, and it is beyond our role to favor any one
approach over another from a policy perspective. Some possible
approaches include that ED § 2-302(e) could be amended to
expressly provide that a State Superintendent appointed to fill a
mid-term vacancy is appointed for a full term of four years, to
expressly allow for exceptions to the statute’s current mid-term
vacancy rule in certain specified circumstances, or to expressly
provide for the appointment of an interim State Superintendent who
serves only until the next July 1, when the State Board is to appoint
a State Superintendent to a full four-year term. Cf. ED § 4-201(d)
(providing, as to county superintendents of schools, that “[i]f a
vacancy occurs in the office of county superintendent, the county
board shall appoint an interim county superintendent who serves
until July 1 after the interim county superintendent’s
appointment”). 4
Alternatively, ED § 2-302(e) could be deleted in its entirety,
and the statute could be amended to look more like other provisions
that have been interpreted to afford each new appointee a full term
regardless of whether the predecessor in that position had been in
the middle of a term. See, e.g., Letter from Patrick B. Hughes,
4
We do not purport here to definitively interpret ED § 4-201 in its
entirety, as that would be outside the scope of your opinion request. We
merely cite the provision to point out an example of alternative language
that the General Assembly might consider using.
78 [106 Op. Att’y
Chief Counsel for Opinions & Advice, to Christopher Mincher,
Deputy Legal Counsel to the Governor (Feb. 14, 2020) (“Hughes
Letter”) (interpreting §§ 14-102(c) and 14-104 of the Criminal
Procedure Article to provide that each new State Prosecutor is
appointed for a term of six years and is not required to serve out
the unexpired portion of the predecessor State Prosecutor’s six-
year term); cf. Sansbury, 11 Md. at 313-17 (interpreting a
constitutional provision stating that, in case of a vacancy in the
office of clerk of the circuit court, a judge shall appoint a clerk to
serve until the next election, and concluding that the clerk
subsequently elected was entitled to a full six-year term); Marshall
v. Harwood, 5 Md. 423, 431-32 (1854) (examining a constitutional
provision stating that the State Librarian was to be elected by the
Legislature for a term of two years and concluding that a librarian
elected after the office became vacant four months into his
predecessor’s term was entitled to hold office for a full two years
after the successor’s election, not the remainder of the prior
librarian’s term, because there is “no intimation in express terms in
the constitution, nor can we infer by analogy from any of its other
provisions, that it was the duty of the legislature to regard the term
of . . . the former incumbent, as still subsisting at the time of the
election of [the current librarian]”).
More specifically, when a provision does not expressly state
that the person appointed to fill a mid-term vacancy serves for the
remainder of the unexpired term and also does not imply as much
by, for example, fixing the dates for the beginning or end of the
term or providing for staggered terms, the general rule seems to be
that the person appointed to that mid-term vacancy may receive a
full term. See, e.g., Marvel v. Camden County, 57 A.2d 455, 458
(N.J. Ct. Err. & App. 1948) (“Where no time is fixed for the
beginning or end of the period during which a public office is to be
occupied and the duration of such period is alone designated, a
person selected to fill a vacancy in such office may serve the full
term and not merely the unexpired balance of the prior incumbent’s
term.” (internal quotation omitted)); State v. Malone, 174 S.W.
257, 262 (Tenn. 1915) (“[T]he rule is general that when the length
of the term, merely, is fixed, with no set time for its beginning, or
no date for its ending, and no reference to an unexpired term, or to
a vacancy in the term of office, as distinguished from a vacancy in
the office itself, it is considered that upon the happening of a
vacancy the office reverts to the people, or sovereign, and when
again vested it is not for an unexpired term, but for the full term.”);
Clark v. State, 59 So. 259, 262 (Ala. 1912) (explaining that,
generally, a mid-term appointee receives a full term when “no
express provision is made for filling vacancies, or where provision
Gen. 67] 79
is made for filling vacancies by appointment, but without fixing the
duration of authority of persons so appointed” and that, generally,
a mid-term appointee serves only for the unexpired portion of the
predecessor’s term when the statute “expressly provide[s] for, or
necessarily contemplate[s] the existence and filling of, unexpired
terms”); Nickel, 100 P. at 1075; Hughes v. Buckingham, 5 Smedes
& M. 632 (Miss. 1846); 70 Cal. Op. Att’y Gen. 168 (1987); 29 Or.
Op. Att’y Gen. 58 (1958); 67 C.J.S. Officers § 183; 63C Am. Jur.
2d Public Officers and Employees § 146; Throop, Public Officers
§§ 319, 320 (1892). 5
That is not an absolute rule, of course. See McQuillin,
Municipal Corporations § 12:164 (declining to lay down a
definitive rule “as to the duration or length of the term of one
appointed or chosen to fill a vacancy in office”). 6 “[W]hen dealing
with an office created by the General Assembly, the question will
always be one of legislative intent, and it will thus always be
necessary to examine all aspects of the statutory scheme to
determine what the General Assembly intended with respect to the
particular office at issue.” Hughes Letter at 6.
5
Although our Office issued three opinions in the early 1900s
concluding that county commissioners appointed to fill a vacancy in the
middle of a term under a particular statute served for the unexpired term,
those opinions did not provide much in the way of analysis for why that
was the case, and we do not read them as setting an overarching rule for
when mid-term appointees serve for the unexpired term of their
predecessors or for a new, full term. See 8 Opinions of the Attorney
General 132 (1923); 2 Opinions of the Attorney General 345 (1917); 2
Opinions of the Attorney General 347 (1917). In any event, for what it
is worth, the result in those opinions seems consistent with the general
rule stated in the above paragraph, in that the county commissioners
appear to have been serving staggered terms at the time, which (under
the general rule) implies that a person appointed to a mid-term vacancy
is to serve for the remainder of the unexpired term. See 1894 Md. Laws,
ch. 305 (Frederick County); 1892 Md. Laws, ch. 249 (Caroline County);
1892 Md. Laws, ch. 569 (Charles County). It also appears that, in the
1923 opinion, the Attorney General may have analyzed the wrong
statute, as there was a provision in the Public Local Laws that provided
a special procedure for filling mid-term vacancies in the office of county
commissioner in Caroline County. See Code of Public Local Laws of
Maryland, Art. 6, § 100 (1930).
6
We do not discuss here, for example, a statute that expressly
provides for a temporary appointment until an appointee can be chosen,
either for the remainder of an unexpired term or a full, new term.
80 [106 Op. Att’y
We can say, however, that it is more likely that a mid-term
appointee would be entitled to a full term if the statute does not
expressly provide that an individual appointed to fill a vacancy
serves for the unexpired term, does not fix the dates for the
beginning or end of the term, does not provide for staggered terms,
and does not refer to a vacancy in the term, as opposed to a vacancy
in the office. 7 For example, Title 14 of the Criminal Procedure
Article provides that “[t]he term of the State Prosecutor is 6 years,”
Md. Code Ann., Crim. Proc. (“CP”) § 14-102(c)(2), and that when
a vacancy in the office occurs, the State Prosecutor Selection and
Disabilities Commission must begin a search process for
prospective nominees, CP § 14-104(a), and nominate one or more
legally and professionally qualified candidates to the Governor, CP
§ 14-104(b)(2). That statutory scheme “does not include any
reference to unexpired terms and does not, either explicitly or
implicitly, fix the dates for the beginning or end of the term,” but
rather “merely fixes the duration of the term.” Hughes Letter at 3.
The statute also refers to a vacancy in the “position” of State
Prosecutor, rather than in the officer’s term. Id. at 5. Thus, based
on the precedent cited above, our Office advised that “a new State
Prosecutor appointed to fill a vacancy in the office is entitled to a
full six-year term, not just the remainder of an unexpired term.” Id.
at 5. If the General Assembly were to amend ED § 2-302 to look
more like the statute governing the State Prosecutor’s term,
7
We note that, under ED § 2-302(a), the General Assembly has
specified a fixed calendar date for the State Superintendent’s term to
begin—the first day of July. ED § 2-302(a). Even assuming that
subsection (e) of the statute were deleted, therefore, that might not by
itself make it clear that an appointee to a mid-term vacancy receives a
new full term. See, e.g., 67 C.J.S. Officers § 183 (“When the duration of
the term is fixed, and also the beginning or ending, or both, a vacancy, if
it occurs, is in the term of office as distinct from being in the office itself.
An appointment to fill such vacancy can be only for the unexpired
portion, and the successor does not serve an independent term of his or
her own.”). In the absence of subsection (e), there would likely be some
ambiguity in the statute. Although a fixed start date for a term generally
suggests that a mid-term appointee to a vacancy serves for the unexpired
portion of the term, subsection (a) says that a new State Superintendent
serves for a term of four years “beginning on July 1 after the
Superintendent’s appointment,” ED § 2-302(a) (emphasis added). That
language, in the hypothetical absence of subsection (e), could suggest
that each new appointee receives a full four-year term beginning on July
1 after the appointment. We have no need to definitively decide how
that hypothetical statute, without subsection (e), would be interpreted.
But it would be advisable for the General Assembly to be clearer about
its intent if it were to decide to provide each new mid-term appointee
with a full term.
Gen. 67] 81
therefore, the statute would likely be read to allow a State
Superintendent appointed to fill a mid-term vacancy to serve a full
four-year term.
III
Conclusion
In our opinion, under the statute as it currently exists, the State
Board may not offer a full four-year term to the new State
Superintendent who will be appointed to fill the anticipated
vacancy in the current State Superintendent’s four-year term.
Instead, assuming the current State Superintendent leaves office on
June 30, 2021, as expected, the State Board may only appoint a new
State Superintendent to serve the remaining three years of the
current State Superintendent’s term, and the statute does not allow
for any exceptions to that rule.
Brian E Frosh
Attorney General of Maryland
Sara Klemm
Assistant Attorney General
Patrick B. Hughes
Chief Counsel, Opinions and Advice