338 [85 Op. Att’y

SHERIFFS

CODE HOME RULE COUNTIES – SHERIFF’S AUTHORITY WITH

RESPECT TO CONSTRUCTION OF NEW DETENTION CENTER

AND TRAINING OF EMPLOYEES

December 19, 2000

William M. Rudd, Esq.

County Attorney for Allegany County

On behalf of the Board of County Commissioners of Allegany

County (the “County Commissioners”), you have asked our opinion

concerning the authority of the Sheriff of Allegany County (the

“Sheriff”) in regard to planning and construction of a new County

detention center. We understand that your request arose out of a

dispute between the County Commissioners and the Sheriff

concerning the services of a consultant retained by the County

Commissioners in connection with the design and development of

the new detention center. Although the matter has now been

resolved, you seek guidance concerning the legal framework that

governs the relationship between the Sheriff and the County

Commissioners. In particular, you ask:

(1) May the Sheriff make decisions concerning the new

detention center during its construction, before the facility is turned

over to the Sheriff?

(2) May the Sheriff decline to give the consultant access to

the current detention center for the purpose of training detention

center employees on correctional methods to be used at the new

facility?

In our opinion, while the Sheriff lacks authority to make

decisions concerning the construction of the new detention center

before he assumes responsibility for its operation, he may, and

should, participate in planning related to the operation of that

facility. Moreover, as long as the Sheriff retains responsibility for

operating the County detention center, the Sheriff need not use a

consultant selected by the County Commissioners to train detention

center employees on correctional matters.
Gen. 338] 339

 The new detention center will include podular living units. This 1

design will allow inmates within a unit to have more interaction while

their activities are constantly monitored by a correctional officer who is

stationed within the unit ) a method referred to as “direct supervision.”

In contrast, the current detention center is of a traditional design that

requires the use of “indirect supervision” ) i.e., correctional officers

monitor inmate activity through intermittent surveillance. For a

description of “new generation jails” using podular units, see Bayens, et.

al., Jail Type and Inmate Behavior: A Longitudinal Analysis, 61 Fed.

Probation 54 (September 1997). 

I

Background

A. Allegany County Detention Center

The existing Allegany County Detention Center, built in 1969

and located behind the Court House in Cumberland, is operated by

the Sheriff. The County is currently constructing a new 190-bed

detention center outside Cumberland with a combination of State

and local funding.

The County Commissioners have retained a consultant to assist

in the design and development of the new detention center.

Apparently, both the Sheriff and the County Commissioners have

agreed that the new detention center will be designed to

accommodate the concept of “direct supervision” of inmates. The 1

County Commissioners have also retained the same consultant to

train correctional employees in that method of supervision. Among

other things, the consultant developed a job description for the

position of detention center administrator, who is to be hired by the

Sheriff. 

Apparently, as a result of lack of communication between the

County Commissioners’ office and the Sheriff concerning the duties

of the consultant, the Sheriff temporarily barred the consultant from

the current detention center and instructed employees of his office

not to cooperate with the consultant regarding training or the

development of policies and procedures for the new facility. This

misunderstanding has since been resolved, and the consultant has

trained correctional employees with the assent of the Sheriff. 
340 [85 Op. Att’y

 We recognize that the United States Court of Appeals for the 2

Fourth Circuit, in a case brought under 42 U.S.C. §1983, has held that a

sheriff was “final policy maker for the County” in operating the county

jail. Dotson v. Chester, 937 F. 2d 920 (4 Cir. 1991). However, this

th

decision does not alter the allocation of responsibility between county

commissioners and the sheriff under State law. See Penhollow v. Board

of County Commissioners for Cecil County, 116 Md. App. 265, 695 A. 2d

1268 (1997). 

B. Office of the Sheriff

The State Constitution provides for the election of a sheriff in

each county and Baltimore City. Maryland Constitution, Article IV,

§44. The sheriff exercises the powers and performs the duties

prescribed by the common law, except as modified by statute or, to

the extent the matter involves practice and procedure in the courts,

by rule of the Court of Appeals. See Prince George's County v.

Aluisi, 354 Md. 422, 433, 731 A.2d 888 (1999); Soper v.

Montgomery County, 294 Md. 331, 337, 449 A.2d 1158 (1982); 79

Opinions of the Attorney General 419 (1994); 84 Opinions of the

Attorney General 158 (1999). Under Maryland law, a sheriff is a

State official. Rucker v. Harford County, 316 Md. 275, 289-290,

558 A. 2d 399 (1989). Although a sheriff’s office is substantially

funded by the county, “county officials may not directly abridge the

functions and duties of a sheriff under the common law and

enactments of the General Assembly.” Id., 316 Md. at 288. “[O]nly

the General Assembly can change the duties and functions of the

sheriff.” Id.2

 

At common law, the powers of the sheriff included

“conserving public peace, preserving public order, preventing and

detecting crime, enforcing criminal laws by, among other things,

raising a posse and arresting persons who commit crimes in [the

sheriff’s] presence, providing security for courts, serving criminal

warrants and other writs and summonses, and transporting

prisoners.” Soper, 294 Md. at 336-37. 

Among the common law duties of a sheriff was responsibility

for the care and control of prisoners committed to the county jail.

Bowie v. Evening News Co., 151 Md. 285, 297, 134 A. 214 (1926);

see also Harford County v. University of Maryland Medical System

Corporation, 318 Md. 525, 528, 569 A. 2d 649 (1990) (“One of the

principal duties of the sheriff at common law was to act as the jailor

of the shire or county in which he served”); 1 W. Anderson, A
Gen. 338] 341

 In 1974, Allegany County adopted code home rule under Article 3

XI-F of the Maryland Constitution. In a letter of advice dated December

4, 1995, Assistant Attorney General Richard E. Israel concluded that the

County Commissioners of Allegany County may assume responsibility for

operation of the detention center under the Express Powers Act, Annotated

Code of Maryland, Article 25A, §5(C) – authority applicable to code home

rule counties under Article 25B, §13 of the Annotated Code. 

A county that has adopted charter home rule under Article XI-A of

the Maryland Constitution has separate authority under CS §11-201(b) to

appoint a managing official to operate the county’s detention center. This

latter provision was originally enacted as Article 87, §46A of the

Annotated Code by Chapter 103, Laws of Maryland 1950. CS §11-201(b)

does not apply to a code home rule county; it was enacted 16 years before

Article XI-F of the Constitution offered counties the alternative of code

home rule. Although CS §11-201(b) has been recodified, it has not been

substantively modified since it was enacted.

 The sheriff is also considered the “governing authority” in 4

reference to adult places of confinement under the sheriff’s jurisdiction.

(continued...)

Treatise on the Law of Sheriffs, Coroners and Constables §§263 and

267 (1941). Thus, under the common law the sheriff had control of

the county jail. 72 C.J.S. Prisons §14 (1987).

The Legislature has codified many of the common law duties

of the sheriff and, in large measure, has left those duties intact.

Soper, 294 Md. at 337, citing Comment, The Maryland Sheriff v.

Modern and Efficient Administration of Justice, 2 U. Balt. L. Rev.

282, 288 (1973). Now included among the sheriff’s statutory duties

is the obligation to “keep safely each individual lawfully committed

to the sheriff’s custody.” Annotated Code of Maryland, Correctional

Services Article (“CS”) §11-201(a). 

Although the Legislature has authorized home rule counties to

assume responsibility for operation of their jails, Allegany County

has not exercised this option. Therefore, the Allegany County 3

Sheriff remains the “managing official” responsible for the operation

of the County detention center and for the care of its inmates. CS

§§1-101(k), 11-203(a)(1). The Sheriff is also considered the

“managing official” of the detention center for purposes of

complying with applicable mandatory standards established in

regulations adopted by the Secretary of Public Safety and

Correctional Services. See COMAR 12.14.01.01.B(54) and

12.14.03.02, et seq. 

4
342 [85 Op. Att’y

 (...continued) 4

COMAR 12.14.01.01B(45)(b). As the designated governing authority, the

sheriff would be a required party in a proceeding before the Commission

on Correctional Standards concerning closure of a detention center.

COMAR 12.14.06.03.

 However, every duty of a sheriff is not necessarily a financial 5

obligation of the county. See, e.g., Aluisi, 354 Md. at 441 (cost of

providing District Court security is to be borne by the State). 

 The last substantive amendment to the Public Local Laws of 6

Allegany County occurred in 1963. While these provisions appear

antiquated in part, they do not conflict with provisions of public general

law relating to these issues.

C. Role of the County

Under State law, the County Commissioners are responsible

for funding the Office of the Sheriff. Annotated Code of Maryland, 5

Courts and Judicial Proceedings Article (“CJ”) §2-309(a-1).

Therefore, while the Sheriff is responsible for the care of inmates in

the detention center, the County must bear the costs of that care. See

CS §11-203(a)(2); see also Harford County v. University, 318 Md.

525, 569 A.2d 649 (1990). The Legislature has also addressed in

public local law the Allegany County’s obligation to fund the cost of

operating the County detention center. See Public Local Laws of

Allegany County, §§70-1 and 70-2. 

6

The Office of the Sheriff is subject to the budget and fiscal

policies and procurement laws of the County. Annotated Code of

Maryland, Article 24, §8-101(3). However, the County may not

administer its policies in a manner that precludes the Sheriff from

carrying out responsibilities imposed by applicable law. Rucker, 316

Md. at 288. See also 80 Opinions of the Attorney General 295

(1995)] (“Article 24, §8-101 requires ... county-funded State entities

to submit to county budget procedures, not county budget control”).
Gen. 338] 343

 Other employees in the Sheriff’s Office are also included in the 7

County personnel system. If authorized by the County Commissioners,

the Sheriff may employ a clerk-bookkeeper, who will be a member of the

County classified service. CJ §2-309(b)(4). Cooks in the detention center

are also part of the county classified service. Public Local Laws of

Allegany County, §70-1.A.1. 

 The Legislature has granted collective bargaining rights to deputy 8

sheriffs below the rank of lieutenant, correctional officers, and civilian

employees of the Sheriff’s Office, including employees assigned to the

County detention center. CJ §2-309(b)(7). The Sheriff is required to meet

with a labor organization and “engage in good faith negotiations to reach

a written agreement on wages and benefits, hours, working conditions,

discipline procedures, and job security issues.” CJ §2-309(b)(7)(iii). 

D. Jail Employees

Under State law, the Allegany County Sheriff must appoint a

minimum number of deputy sheriffs, who are in the County

classified service. CJ §2-309(b)(2). With the approval of the 7

County Commissioners, the Sheriff may appoint a chief deputy

sheriff, who serves at the Sheriff’s pleasure and is not in the County

classified service. CJ §2-309(b)(6). 

Although deputy sheriffs are subject to administrative practices

applicable to County employees, they remain State officials. Rucker,

316 Md. at 290-291; Penhollow, 116 Md. App. at 296. Like other

employees in the Sheriff’s Office, they are under the Sheriff’s

supervision. See, e.g., 84 Opinions of the Attorney General 158

(1999) (legislation placing Garrett County deputy sheriffs and other

sheriff’s office employees in county classified service does not alter

sheriff’s role as appointing authority; however, sheriff must comply

with county classified service procedures). Although deputy sheriffs

and correctional officers in Allegany County are separate career

fields under the applicable collective bargaining agreement,8

administratively the positions are treated similarly. Significant for

purposes of our analysis, both deputies and correctional officers are

recognized as employees of the Sheriff.
344 [85 Op. Att’y

 This provision does not apply to Baltimore City. CS §11-101. 9

The Baltimore CityDetention Centeris a State facility. See CS §5-401(a).

 Annotated Code of Maryland, Article 25A, §5(C) provides: 10

The following enumerated express powers

are granted to and conferred upon any county or

counties which hereafter form a charter under the

provisions of Article XI-A of the Constitution,

that is to say:

. . .

To erect, establish, maintain and control

hospitals, almshouses, pesthouses or other similar

institutions within the county, and make all

regulations for the government and conduct of the

same; to erect, establish and maintain

courthouses; to establish, maintain, regulate and

control county jails, and county houses of

correction or detention and reformatories, and to

regulate all persons confined therein; to make

proper provision for female and juvenile

offenders.

Article 25B, §13 extends this authority to counties that have adopted code

home rule. See note 3, supra. 

II

Analysis

A. New Detention Center

It is beyond dispute that a county detention center is a county

facility, regardless of whether the local sheriff is responsible for its

operation. The Legislature has provided that a county may establish

and maintain a local detention center. CS §11-102(a). Furthermore, 9

under the Express Powers Act, any county that has adopted home

rule has authority to establish a detention center and control its

operation. State financial assistance for construction or expansion 10

of a detention center is available to county governments. See §§CS

11-104 and 11-105. In contrast, no State law authorizes a sheriff to

build or oversee construction of a county jail or detention center. 

While the County is thus responsible for constructing the new

detention center, it is certainly prudent for the official who will be
Gen. 338] 345

responsible for its operation to be involved in its development, as the

design of the facility will inevitably affect management of the

inmates. In Allegany County, the adoption of a new method of

inmate supervision appears to mandate a particular design for the

facility, if that method is to succeed. See footnote 1, supra. No

statutory or common law principle grants the Sheriff the right to

make decisions concerning the new facility before it is turned over

to him for operation. However, if the Sheriff and the County

Commissioners had not agreed on the new approach to supervision,

and if the County Commissioners had not taken that approach into

account in the design, the facility might well have failed to serve its

purpose. In another context, Attorney General Burch commented

that such a situation “necessarily mandates a good faith working

relationship between the two offices and requires the sheriff and the

county commissioners to make honest attempts to resolve their

differences through negotiation and compromise.” 60 Opinions of

the Attorney General 647, 657 (1975). It is commendable that the

County Commissioners and the Sheriff have heeded that advice in

these circumstances. 

B. Consultant’s Access to Detention Center Employees

Under current law, the Sheriff is responsible for operation of

the County detention center. However, a variety of State and local

laws direct the exercise of that responsibility. For example, in

administering the detention center, the Sheriff is subject to State law

governing certain employment matters. See, e.g., CS §2-309(b)(7).

Further, the Sheriff is subject to the County budget and fiscal

policies and procurement law. Annotated Code of Maryland, Article

24, §8-101(3). The Sheriff must also comply with requirements

adopted by the Correctional Training Commission when he appoints

and trains correctional officers. See CS §8-209; see also COMAR

12.10.01.01 et. seq. As previously noted, although detention center

employees are subject to County personnel rules, they remain

employees of the Sheriff, subject to the Sheriff’s authority and

direction. 

Within this framework, there may be circumstances under

which the County Commissioners could require that employees of

the Sheriff’s Office undergo certain training or that the Sheriff grant

a consultant selected by the County Commissioners access to the

detention center. For example, if County personnel rules required

that all employees in the classified service receive training on the

obligations and benefits of their employment, the Sheriff would be

expected to cooperate. Similarly, if the County installed a central
346 [85 Op. Att’y

 For purposes of your inquiry, we need not address to what 11

extent, if any, the Express Powers Act, Annotated Code of Maryland,

Article 25A, §5(C), would allow a home rule county to regulate operation

of a county detention center through county legislation without removing

the facility from under the jurisdiction of the sheriff.

computerized purchasing system, employees of the Sheriff’s Office

would likely need training on that system along with other County

personnel. If the County’s budgetary procedures required each unit

receiving County funding to submit to a financial audit by an outside

auditor, the Sheriff would be expected to cooperate with the auditor

selected by the County. Each of these examples is based on a

particular State statute. See, e.g., CJ §2-309(b)(2); Article 24, §8-

101.

However, in the absence of any controlling statute and so long

as the detention center remains under the control of the Sheriff, the

County Commissioners may not require the Sheriff, a State

constitutional officer, to cooperate with a consultant selected by the

County Commissioners to train correctional officers on matters

exclusively within the Sheriff’s authority. To conclude otherwise

could allow the County Commissioners to directly abridge the

functions and duties of the Sheriff. Nonetheless, in the interest of 11

efficient and effective use of public resources, it is incumbent upon

the Sheriff and the County Commissioner to coordinate the training

of correctional employees to take advantage of the design of the new

facility.

III

Conclusion

While the Sheriff may, and should, participate in the planning

and development of new County detention center, the Sheriff may

not decide matters concerning construction of the facility before it

is turned over to him for operation. On the other hand, as long as the

detention center is operated by the Sheriff, the County

Commissioners cannot require that the Sheriff use a consultant

selected by the County Commissioner to train detention center

employees in correctional matters. Thus, in order for the Sheriff to

carry out his responsibilities effectively and for the County

Commissioners to discharge their obligation to deploy County

resources economically, the Sheriff and the County Commissioners
Gen. 338] 347

must cooperate with respect to both the construction and operational

planning of the new detention center.

J. Joseph Curran, Jr.

Attorney General

William R. Varga

Assistant Attorney General

Robert N. McDonald

Chief Counsel

 Opinions and Advice