76 [80 O p. Att’y

1 You also asked whether, if the trusteesdid exceed their authority, the benefits awarded under that provision could be rescinded. In light of
our conclusi on that, ta

king into a

ccount the actions of the Cou nty Counci l, the truste es did not e

xceed their authority, this question i s moot. COUNTIES

R ETIREMENT S YSTEMS

) I NVOLUNTARY S EPARATION U NDER THE P RINCE G EORGE ’ S C OUNTY S UPPLEMEN TAL P ENSION P LAN

February 23, 1995

The Honorable Robert H. Ki ttl eman House of Delegates
You have request ed our

opini on o n two questi ons rel ated t o the Prince George’s County Suppl emental Pensi on Plan for General Sch edule Em ploy ees (th e “Pla n”):

1. You as k wh ethe r we ag re e wi th the conclusion of t he Plan’s privat e counsel t hat the Plan’s “ involunt ary separ ation” provisi on applie s to el ected of fici als who are bar

red fr om seeking
re electi on by the term limitation provision s in the Prince G eorge’s Co unt y C har ter.

2. Citin g press ac counts des cribi ng the deci sion by th e trust ees of the Pl an to add cer tain be nefit s for

Plan parti cipant s who
were “involuntaril y separated” from Coun ty service, you ask whetherthe tr

ustees had a utho rity to cre ate this new benefit without the ap prov al of the Co unty Co uncil. 1
For the reasons stated below, our opinion is as f ollows:

1. We di sagree wit h counsel’ s int erpret ation of the “involuntary separat ion” provi sion. In ourview, the provis ion does not apply to elected officials who are barred from reelection by term lim its in th e Pr ince Ge org e’s C oun ty C har ter.

2. Becau se the C oun ty Co uncil g ave th e Plan ’s truste e s extra ordin arily broa d auth ority to a me nd th e Plan and la te r effectiv ely rati fied al l of the trustees ’ amendm ents, the tr ustees actedGen. 76] 77

2 Under Article IX, §903 of the Prince G eorge’s County Charter, “Salaries and wages of both classified and exe mpt servic e employe es shall be determined in accordance with classifica tion and salary plans.” The latter are submitted i nresolution form. See§16-125( a) of the County Code. The County

Code def

ines “Sal aryPlan” more broadly than “salar ies and wages,” t

he terms used in

the Charter. Under §16-102(53) of the Code, a “Salary Plan” i s a “compilation of salary schedules ... setting forth the compensation for employees .... As used herein, the term ‘compensation’ shall m ean and include the base salary rates of all ... employees and any other spe cial sala ry rate s and frin

ge benefits

....” (Emphasisadded.) We express no view on the proce dure that has be e n used over the years to establish fringe benefits like pension benefits. We do notethat, i n any event, an ordinance has codified the Plan. Bill No. CB-101-1994 (effective January 1, 1995 ). Seenote 20 below and accompa nying text

. wi thin their au thority w hen th ey ind epen dently adde d certa in augmented benefit s for t hose who were “involunt arily separat ed” from Co unt y se rvic e.
We hope that

this opinion, which ident ifi es one lega l err or that resul tedin the award of be nefit s outsi de the i ntent of the Plan , will
serve as a ca talyst for the t ruste es, t he County Executi ve, and t he Co unty Co uncil to reexa min e the P lan fro m to p to bo ttom. Given the dire f inanci al si tuati on now facing Pri nce George’s County, the Plan deser

ves a very har d look.

I

History of t he Plan

On June 5, 1990, the Pri nce George’s County Counci l adopte d
a resolution for “the p urpose o f a mending the Salary Plan of the Co unty to ref

lect new pa y ra tes and ot her benefi ts for

General Sch edule employees.” Resolution No. CR-37-1990. 2 The resolution approved “a supp lemen tal retirement ben efit” and incorp orate d a doc um ent th at su m m arize d th is ne w b ene fit, am ong oth ers.
SectionIX-E of the at

tachmentto the resolut ion began with the foll owing general descriptionof the new “suppl emental reti rement benefit”: “Effect ive December 30, 1990, e mployees cove red b y this salary schedule may el ect t o parti cipat e in a suppl emental re tir ement bene fit pr og ram pursuant t o rules establ ished in the Supple mental78 [80 O p. Att’y

3 The term

“Employer” means PrinceGeorge’s County. Article I, §7. The Trust Agreement was executed on be half of the County byt he County Executive. The “Fund” means the Trust Fund fo r the Plan. Article I, §8. Retire ment Plan . The suppl emental reti rement progr am will be jointly fund ed thro ugh Co unt y an d em plo yee con tribu tion s.” (Em phas is added.) The at tachment then outline d certain benefit s, vesti ng requir ements, and a f unding mechanism, t ogether wit h a few definiti ons, but the Counci l was content simply to r ecognize t

hat the de tails of the n ew bene fit prog ram we re large ly set ou t in th e “Supplemental Retire ment Plan” to whic h the res oluti on atta chment refe rred

. The Plan document provi des that “[t] he Trust ees shal l have adm inistrative pow ers an d du ties w ith resp ect to the Plan provided in the Trust Agreement and allother powers and duti es with r espect to the Plandescribed herei n.” §8.1. The t erm “Trustees ” is def ined
as “the per son or pe rsons wh o, at the p articular time , cons titute the Board of Trust ees under Art icle III of the Trust

Agreement.” §1. 27.

The Trust Agreement was ent ered on D ecember 31, 1990, “between Prince G eorge’s County, Maryland, a body corporat e and politic

... and Frank W. Stegman, Mich ael J

. Kn app, a nd E ric Tuck er, as Trustees

. ... ” Under A rticl e III, §1 of t he Trust Ag reem ent, “the oper ation and administrati on of th e Fund shallbe the joint responsibili ty and adminis tration of a Board of Trustees comprisedof thr ee Truste es des ign ated by t he E m plo yer .” 3 Article III, §3 provides that “ Trustees may be removed and replac ed at w ill by the County Execut ive. ”

The Trust Agreement and t he Plan d ocum ent ve st extrem ely broad pow ers in the tr

ustees . Arti cle IV, §2 of the Trus t Agreement leaves cons truction of the a greem ent up to the tr ustees and provides that “[a]ny cons truction adop ted by the T rustee s in go od fa ith is binding upon the Employer and t he Employ ees.” The Trust Agreement goes on to empower the trustees , am ong other th ings, to “take all a ctions and make all de cisi ons necessary or proper to c arry out the prov isi ons of the Plan,” “make and enforce suc h rules and regulations as they sha ll deem p ru de nt for the eff

icie nt admini stra tionof the Pl an,” “i nterpr et the Plan,” and “decide questi ons conc erning the P lan an d the e ligibility of a ny em ploy ee to particip ate therein and the ri ghts of any person t o rece iv e ben efitsGen. 76] 79

4 The power to amend in the Plan document states tha t it is limited bycontract and vested right s. The full text of Section 12.1(a) is as follows:
Either

the County or the Trustees may at any timemodify or

amend the

Plan in who le or in part, except to the extent otherwi se pro vided by
anycontract to which the County is a p arty , including any agreement between the County and anycollective bargaining unit representing any of the Employees of the County, as such agreement shallbe in effect from time to time; provided however, that any modification or amendment of the Plan shall

not affe ct, unles s expressly set forth inthe amen

dment or mo di fication , or adve rsely affect in any case, any

rights or b enefits

under the Planexisting at the date of such modification or amendment

in respe ct of any

Participa nt who shal l have retired, been re

tired or otherwise

ceased to be in the employ of the County prior to set date, or adversely af

fect accrued benefits under the Plan existing at said date in respect of any Participant wh o at said date shall be in the employ of the County. ther eun der .” Articl e IV, §3b , c, d, and e. Th e Plan docu me nt,
mo reover, vests in the trustees a unila teral righ t to amend the Plan: “Either the County or t

he Trustee s may at any ti me modify or amend the P lan in wh ole o r in p art ....” 4

The trust ees have exer cised t heir power t o ame nd the plan eleventimes. The third of thes e amendments, eff ecti ve February 1, 1992, prov ided fo r th e “dis continue d servi ce benefi t” that is the foc us o f yo ur in qui ry.
This new bene fit, em bod ied in § 3A .3 of the Plan , is availab le to “a Parti cipant

who is invol untari ly separ ated fr om service as an Employee for any r eason unrel ated t o a di sc iplinary action or a disab ility

. . . i mme d iate ly upon such se parati on from servi ce, providedthat t

he Parti ci pant has 1 5 or m ore y ears o f Eligib ility Service .” Plan §3A .3(a). A s origin ally set o ut in the thir d amendment to the Pl an, a par ticipant el igibl e for t

he discontinued servi ce bene fit wo uld recei ve a percent age of annualcompensation (rangi ng from 12 t o 20 perce nt, depend ing on the n um ber of yea rs of c redit able ser

vice) imm ediat ely aft er separ ation f rom service as80 [80 O p. Att’y

5 Ordinarily, an employee who leaves County servi c e rece ives a lump sum payme

nt for the value of all of the

emplo yee’s accumulated annualleave and 50 perc ent, r ather than 100 percent, of the value of the employ ee’s accumulated sick leave. See§16-221.02(a)(3) of the Prince George’s County Code.

6 The third

amendment

to the plan also contained a number of other change s unrela

ted to the discontin ued serv ice bene fit.

7 This amendment, by itself, appar entl y did not sig nifican tly increase the discontinued se rvice be nefit. Cou

pled with a

n increase in the normal benefit

accrual the next month, however, the discontinued service benefit did increase significantly. SeeTenth Plan Amendment dated June 26, 1994. The only other amendment to the discontinued servicebenefit was (continued...) a County employee, inst ead of wait ing untilnormal ret irement age

. §3A .3(b). In addition, t he discont inuedservi ce benefi t cal led for “a l ump sum benefit

equal t o 100% of

all or any porti on or the s um of

... Participant’s annual leave balan ce m ultiplied by the Pa rticipant’s finalbase ho urly rate of pay , plus

... the Participant’s s ick le ave balance multipl ied by the Parti cipant ’s fi nal base hourly rat e of pay ....” §3A .3(e )(i ). 5 The Plan am endm ent co ntem plated Co unty funding of thi s augmented benefi t: “The County m ust contrib ute to the Trust Fund from time to time such am ounts as a re a ctuaria lly determined

to be requ ired t o pro vide th e ben efits des cribed in this Section3A.3 to the extent that t hey exceed the bene fit th at wo uld have been payable t o the Participant under §3. 3,” which is t he ordinary b enefit amo unt und er the Plan. §3 A.3(f). 6

A lit tle more t

han two years l ater, on May 1, 1994, the tr ustees changed the methodof

calcu lating th e disco ntinue d serv ice be nefit. This am endm ent ass erted th at, alth oug h th e amount of the discont inuedservi ce benefi t was statedin the originalamendment as
a percent age of the parti cipant ’s aver age annual compensat ion ranging betw een 1 2% and 2 0% , “such perce ntage wa s intend ed to be 150% of the basic ben efit c alcu lated und er S ectio n 3.2 of th e Pl an.” The trustees then o bserv ed th at, because “t he Plan has s ince been amende d to increa se the bas ic benef it, with no corr esponding increase in the di sconti nued servi ce benefi t .. ., t he Trustee s wish to amend the plan to clarif y that t he discontinued ser

vice bene fit shall equal 150% of the basic benefit

... .” An amendm ent to §3A.3(b) achie ved th at resu lt. 7Gen. 76] 81

7 (...continued) made by the trustees on December 1, 1994. The trust ees expr essed a w ish “t o amend the Plan to allow Participants who receive a discont inue d service benefit ... to elect to receive their first year’s bene fit in an actuar ially reduce d lump sum.”

New lang

uage was added to

§3A.3(b) to achieve that resu lt. II

Term Limits an d “Invol untary Se parati on”

A. Introduct

ion

In ord er to be e ligib le fo r the disc ont inu ed s erv ice b ene fit, a Plan parti cipant

must have been “i nvoluntarily s eparat ed” from Co unty servi ce. Plan §3 A.3(a). Th e term “involunt arily separat ed” is not defi ned. The Plan does ma ke cle ar, how ever, th at the b enefit is not avai lable if t

he separation res ults from disciplinar y a ct ion or disa bility

. Id. See also §3A .3(g ).

Article III, §307A of the Pri nce G eorge’s County Charter provides as follow s: “N o per son s hall be eligible to serve more than two co nsec utive te rms on th e Co unty Co uncil.” T he sa me sectio n a lso p rovides that: “No person shal l be el igibl e to ser ve more than two terms as County Executive. ” T h ese term limits w ere ad ded to the Charter by an amendment approv ed by the voters in November 1992.

On July 6, 1994, the privat e fir m that provi des pension couns el to the County off

ered it s opini on “whetherelected officials who are pr eclu ded from ru nning for a nother term due to the C ounty’s term limit ations are elig ible for the discontinued ser vice benef

it pr ovided forund er S ectio n 3A .3 of the P lan. ” Counsel’s analysi s was that elect ed official s barr ed from seeking ree lection by ch arter term limit ations fall with in the c atego ry of th ose w ho ar e “inv olun tarily sepa rated” :
Section3A.3 was adoptedin 1992 and, as

I re ca ll , w as dr af

te d wi th th e inten t that it applie d to employees who were te rminated as
a result of a reduction -i n-fo rce. H ow eve r, ... it was not draf

tedso na rrow ly as to a pply only to such employees. Basical ly, an employee82 [80 O p. Att’y

8 On Aug ust 1, 1994 , the Count y Office of Law in

dicated it s con currencewith pension counsel’s conclusion. Memorandum from Bernadette F. Lamson, Esquire, to David L. Goode, at 2.

9 A s Ms. Guth wrote: “The Plan’s Trust Agreement gives the Trustees the power to interpret the plan and to determine an employee ’s eligibility to receive benefits. Based upon the for egoing, I believe the Trustees may conclude that el ec ted officials who are prevented from seekinganadditio nal term because of the County’s term limitations are entitled to a discontinued service benefit ....” Letter at 2.

must have at l east 15 y ears of Elig ibility Service under the P lan an d mus t me et two additi onal tests. Clearly these elected officials meet the fi rst t est, because their s ep ara tion from service is not related to d isciplinary acti on or disa

bili ty. The s ec o nd tes t is whethe r they are be ing “in volu ntarily separat e d from servi ce.” Black’s Law Dictionary defines involunt ary as “wit hout will power or choice .” It would se em that these e le cted off

icia ls meet t

his def inition because the te rm limitation pr ov isi ons take away their ab ility to choose whether or not to
run f or anad di t i on alt erm.
Letter fr om Ch eryl O’Donnell Guth, Esquire, t o Kathleen W. Colbert, at 2 (July 6 , 1994). 8

For th e r ea so ns st at edbe lo w, we are unabl e to agre e with this constr uctionof the per

tinent provisi on of the Pl an. Much the bett er constr uction, in our vi ew, is t hat the “involunt ary sep ar ation” language does not ap ply to e lected officials w ho ar e inelig ible to
see k an oth er ter m bec aus e of term lim itatio ns. Nevertheless, we must emphasize a po int al so tou ched on in pensioncounsel’ s letter: Very broad authority t o inter pret t he provisi ons of the Pl an, i ncluding ques ti ons about el igibi lit y, is vested in the trustees

. 9 See Plan §8 .10; Tru st Agre ement Articl e IV, §§2 and 3d and e. Whe n the trust ees adopte d counsel’ s int erpret ation, they acted within the scope of this grant of authority. Hence, unless th e tr ustees reasse ss their conclus ion or a cour t or l egisl ative body
com pels a differe nt resu lt, their interp retation , albeit one with which we disagree, will r emain effec tive.Gen. 76] 83

10 The County Charter specifies an annual level of “compensation” for Council Members an d the C ounty Executive. Article III, §308, and Article IV, §406. This “com

pensation” mayonly be changed by an affirmativevote of notless than two-thirds of the members of the Council,” effective with the start of a new term

. Id . The pension pari ty language in Resolution No. CR-179-1 985 was not inconsistent with the Charter, however, because the “compensa tion” referred to in §§308 and 406 is the annual salary, not futurebenefits like a pension entitlement. Cf

. 78 Opinions of the Attorney General 296 , 301 (1993), (“Although in an economic sense a pension may be said to be a t ype of d eferred compensation, a pension has certain unique characte ristics .... It

results in
no curren t receipt of money

benefits nor, i n fact, anything additional during the term.”) B. Eligib ility of E lected Offic ials

A thresh old question is w hether elected o fficials are entitled to particip ate in the Plan. The r esolut ion enact ing it was in the f

orm of
an am endm ent to th e Co unty ’s salary plan “ for G enera l Sch edule
em plo yee s.” Res olution No . CR -37-1 990 . Electe d offic ia ls are obv iou sly n ot G ene ral S che dul e em plo yee s.
The answer li es in an earli er Council resol ution, No. CR-179- 1985, whi ch en ac t eda l ea ve an d b en ef i t s p ro gr am “ for ex empt servi ce employees.” Among other thi ngs, t his re solut ion provi ded
as foll ows: “All exempt employee s are ent itl ed to and subj ect t o the
same retirement and pensi on benefit s as are provided by t he Personnel Law o r other law to classi fied se rv ice employees of the Co unt y.” §E.1. Under t his re solut ion, t

he “exempt employees” who gain ed th is pa rity in clud ed “ elec ted o fficia ls.” 10
Hence, when the County Council c reate d the Supplementa l Pension Plan for

General Schedul e Employees in 1990, that ne w benefi t b ecame availa

ble to e xempt servi ce employees, including elect ed officials, b y virtue of the 1 985 resolu tion g ranti ng exempt employees the same ret irement and pe nsion benef its as are pr ovided to other employee s. The Plan document its elf cor rectly recogniz ed the inter acti on of

the two res oluti ons by defi ning the term “Covered Employee” to mean, i n part, “any elect ed offi cial (withi n the meaning of Section 9 02(1) of the P rince Ge orge’s C ounty C harter)

. ...” §1.8. Thus, the premise of the term limits anal ysi s
)tha t elect ed offi cial s are cover ed by the Plan and potent ially eligible for the disc ontinu ed se rvice b enefit

)is co rrec t.84 [80 O p. Att’y

11 Given the Plan’s incorporation into a res olut ion, its subsequent recognition

in an ordinance, and

its governmental nature, we believe that principles of statutory co nstruct ion ought to be applied to the Plan document

. We note that a provisionof federal law on early retirement, 5 U.S. C. §8336(d)(1), uses the term “separated from the service involuntarily.” See also 5 U.S.C. §55 95(b)(2 ) (seve rance p ay for e

mployees “involunt

arily separated from the service”). We have r eviewed the small body of federal
cases that interpret this language but find little in them tha

t potentia lly bears on this problem. Moreover, we have no evidence that the pe rtinent provision in the Plan had been drawn from this federal law.

12 “Separate” means to “disconnect or seve r.” Black’

s Law Dictionar y1364 (6th ed. 1990). C. “Involuntarily Separ ated”

We agree with pension coun se l’s s uggesti on that analysi s of th e me aning of “inv olun tarily sep arated from servic e” m ust be gin with that l anguage, “as the words of the statute, given their ord inary and popu larly underst ood meaning, are the pri mary source of legis lative intent .” Ga rglian o v. Sta te , 334 Md. 428, 435, 639 A. 2d 675 (1994). 11 “In so doi ng, however, the words

... must be ‘rea d in light of the f ull context

in which the y appear, and in li ght of ext ernal manifest ations of int ent or gene ral pur pose avail able through other evidence .’” 334 Md. at 436 (quoti ng Cu nnin gha m v . State , 318 Md. 182, 185 , 567 A .2d 126 (1 989)).

It is i ndeed true t hat te rm limits are “i nvoluntar y,” i n the ordinary sense of t

hat word. That i s thei r very pur pose
)to deprive
an i ncum bent o f the dis cretion to seek anoth er term , in orde r to achieve t he presumed benefi ts of ne w leadership.
A ter m limit does not

“separat e” an incumbent f rom office , how ever; the expi rat ion of the incumbent’s term does. 12 Term limits, rather , are be st under stood as a qualif ica tion applica ble to seekers of the new term. The quali fication is that s omeone who held the offi ce for t

he previous two terms is ineli gible f or another consecutive t er m

. See Thorsted v. Gregoire , 841 F. Supp. 1068, 1078-79 (W .D. W ash . 1 994 ); U.S . Term Lim its, Inc. v. H ill , 872 S.W.2d 349 , 357 (A rk.), cert. granted , 114 S.C t. 2703 (199 4); Stumpf v. Lau , 839 P.2d 120, 123 (Nev. 19 92).Gen. 76] 85

13 That opinion concluded that an e lected o fficial

who “actively soughtand was denied reelection” was involuntarily terminated. 66 Opinions of th e Attorn ey General at 223. It might be argued that the incumbent

who is denied

the oppor tunity toseek re election

by a term limit is functionally in the same situation as one who seeks reele ction and loses. We do not beli eve that

such an extension o f the 1981 opinio nto this cont extis w arranted, however, for the conc lusion in that opinion was linked to statutory language that expressly referred to the poss ibility

of an incumbent who was “not ... reelected.” See66 Opinions of the Attorney General at 222. If the lan guage in t he rele vant State statute a t the time had been ide ntical to t

hat in the

Plan, the o

pin ion would have been differe nt.

14 The minut es of the pertinent meeting of the Board of Trustees simply recite the Board’s action in adopting the discontinued servi ce benefit. Minutes of meeting of April 10, 1992. The incum bent’s term simply ends by oper ation of the law that defines the durat ion o f the ele cted o fficial’s term , quite indep ende ntly of whether t he incumbent i s eli gible f or a succes sive t erm. The end of a ter m, by its elf, is not

the equi valent

o f involuntary sep arati on. See 66 Opinions of the Att orney General 211, 222 (1981). 13

Our constr

uction

)that t

he fact of a t erm l i mi t makes an incumbent ineli gible f

or another

consecutive term but i s not the prox ima te cause of t

he incumbent’s separat ion fr om County service

)seems to us not

only consi sten t wit h the text but also fa r more ha rmon ious with the a

pparent pur

pose of the discontinued ser vice bene fit. While contem poraneous documentati on of the ac tions of the trust ees in ad opt ing the be nefit does not expl ain it s purpose, 14 the Plan’s annual re port dat ed August 9, 1993, does desc ribe the bene fit
as a ppl yin g to em plo yee s “w ho a re in vol unt arily sep arate d ..

. because of areducti on in for ce.” Annual Report at 5.

Materialfrom sources knowledgeable about the Plan likewise reflects this sense of t

he purpose of

the dis continue d servi ce bene fit. As noted above, pension couns el’s lett er stat es a recol lect ion that the discont inuedservic e ben efit “wa s drafte d w ith the in tent tha t it applie d to employees who were te rminated as a resul t of a r educti onin-fo rce.” See Part IIA ab ove. A n earlier letter from the C ounty’s Chief Administrative Offi cercorrobor ates t hat unders tanding of

the underlyi ng purp ose: “ In orderto prot ect seni or employees i n the eventof a red uction in forc e, the T rustee s of th e Ge neral S ched ule86 [80 O p. Att’y

15 Mr. Riddick’s letter soug htan opinion on the narrow issue whether an in-te rm incre ase of pe

nsion bene fits for elected o fficial s would violate Article III, §35 of the Maryland Constitution. We concluded that suchan increase would not v iolate that provision. Opinion No. 93-032 (August 11, 1993) (unpublished).

16 I ndeed, off

ice holders in a charter home rule county ar e always “subject to the possibility that they may be ousted under the provisions of the Home Rule Amendment providing for the adoption[and ame

ndment] of a charter.” County Commissioners v. Supervisors of Elections , 192 Md. 196, 213, 63 A.2d 735 (1948). See also Town of Glenarden v. Bromery , 257 Md. 19, 262 A.2d 60 (1970).

17 We have

not b een aske d, and therefore do not address, any questionabout the application of the “involunt

ary sepa ration” language to individua ls other than elected offic ials. Plan adopted adiscont inued ser vice benef

it. ” Lett er f

rom Major F. Riddick, Jr., to M rs. An n La ndry Lom bard i, Ch air of the Co unty Board of Ethics, at 5 (Janu ary 7, 199 3). In a letterto the Attorney General on the same date , the Chief Administrati ve Officer likewise charact erize d the dis continue d servi ce benefi t as one “pr ovided for emp loyees w ho are terminated for non-discip linary reasons ( e.g. , a reducti on in for ce) after 15 years of

servi ce.” Lett er f

rom Major F. Riddick, Jr. , to Att or ney Gen eral Curran , at 3 (January 7 , 1993). 15

This purpose i s not ser ved by treating elected officials ineligib le for re e lect ion because of t erm limit s as if they were the vi ct i ms of a reduc tion in fo rce. T he dis contin ued s ervice bene fit
serves to att

ract and ret ain em ploy ees w ho se rve the Co unty indefi nitely, by giving t hem an economic offset to the risk of

losi ng their jobs i f layof

fs are needed. Surely no comparabl e consider ation applie s to those who se ek elective office, fo r they d o so w ith full
aware ne ss t ha t wi t h the of fi ce co mes a f

i ni t e t erm. 16

In short, to say t

ha t a t erm limit

“involunt arily separat es” an elect ed offi cial from offi ce is t o stre tch the langua ge so that it cove rs a sit uation f ar fr om the problem int ended to be ad dressedby the provisi on. We do not endorse s uch a constr uction. 17Gen. 76] 87

18 Seenote 4 above for a limitation on that authority. We have not been asked, and

theref ore do not addres s, any que stion abou t the County Council’s authority to have vested this degr ee of sta ndardle ss author

ity in the trustees. Because the County Council has now ratified a ll amendme nts to the Plan made by the trustees, seenot e 20 below and accompanying text, this question may be moot in any case.

19 According to an actuarial evaluation of the Plan issued o n May 21, 1993, the unfundedactuarial accrued liability of the Plan increase d fromjust under $16 million as of January 1, 1991, to $25.7 million as of (continued...) III Authority of t he Trustees

In our opini on, the Board of Trust ees of t he Plan act ed with in the autho rity pres ently gran ted it by the County Councilwhen they
crea ted th e dis con tinu ed s erv ice b ene fit. Through its Res olution No . CR -37-1 990 , the C oun ty Co uncil
ame nded the Cou nty’s Salary Pl an “to re flect

... new pay rates and other bene fits forGeneral Schedul e employees.” One of these ot her bene fits was “a supplementalreti rement benefi t” that was included with in a “salary schedul e” document “submitt ed and recommended by the County Execut ive . .., which is atta ched heret o and made a part hereof ....” This salary sc he du l e d oc ume nt , whi ch t hu s b ec ame part of the r esolut ion it self , ref erred t o “a s upp lemental reti rement bene fit program pursuant to rul es est ablis hed in the S up plemental Retire ment Plan.” The County Coun cil th ereby endors ed the Plan doc um ent.
The Plan docu me nt, in turn, c ould hard ly be m ore ex pans ive in its grant of

authori ty to the trust ees to add ne w benefits . Under §12.1(a) of the Pl an, the trus tees have coextensive authori ty with t he Co unty “ at any time [to] m odify or am end th e Plan in w hole o r in part ....” 18 The tr uste es qu ite prop erly ha ve rec ited the ir autho rity under §12.1(a) ev ery time theyhave amended the Plan, including the amendment to create the disco ntinued serv ice benefit. M oreover, nothing in §12.1( a) or any ot her provisi on deali ng with the power of the trust ees requi res them to see k C ounty Council concurrenc e for
a proposed expansion in benefits u n der the Pl an, even t hough new bene fits would obviousl y increa s e the cost of the Pl an to the County. 1988 [80 O p. Att’y

19 (...continued) January 1, 1993. See alsonote 20 below.

20 This bill al so expanded the Bo ard of Tr ustees to five memb ers, one of whom is elected

by the Plan’s members. “The remaining members of the Board

of Trustees shall be designated and appointed by the Coun

ty Executive.” §16.-232.02(b). The bill, which became effec tive onJanuary 1, 1995, also provides for a cost shar ing mecha

nism betwe en the co

unty and the employees to eliminate the unfunded liability.

21 Whether the County Council knew thedetails of the amen dments effected by the trustees is of no legal significance. See71 Opinions of the Attorney General

350, 360 (1986). Although the tru stees ma de am endm ents to th e Plan on th eir
own authori ty, wit

hout County Councilinvo l vem ent, the C oun cil has explic itly recogniz ed the bre adth of th e trustees’ authority. In Resoluti on No. CR-40-1993, adopt ed on Jun e 2 2, 1993, “ [f]or the purpose of amending the Sal ary Plan of the County t o refl ect new maximum pay rate s and other modified benef

its for General Sch edule employees,” t

he Council appr ov ed the follow in g language: “The B oar d of Trust ees for the Supplementa l Pensi on Plan may establish contri

butions an d bene fit approval rates, m aximu m b enefi t s and sp ec i alre t i re men t i nc en t i ve s o r p ro vi si on s a s i t de ems appropri ate; pro vid ed, h ow eve r, that em ploy ee be nefits u nder this plan may not be reduced wit hout pr ior appr oval o f the C oun ty Co unc il.” See also Resoluti on No. CR-56- 1994 (sa me lan guage ). If the tr ustees ma y no t reduce benefit s without prior Co unty Co uncil appr oval, the obvious implication is that t he trus tees may increase employe e b enefits w ithout p rior ap prov al of the Co uncil, w hich is precis ely what the Plan document express ly all ows and what the trust ees hav e do ne.
Fina ll y , on July 19, 1994, the Council codi fied t he Supplemental Re tirem ent P lan. See Bill No. CB-101-1994. Under §16-232.02( a) of

the County Code, th e Pl an, “as es tabl is hedby CR37-1990, and

ame nde d f

ro m time to t ime , is h ereb y re cog nize d.” (Em phas is add ed.) 20 This langua ge can o n ly be viewed as a rati fication by the C ouncil of the amendm ents made by the trustees. 21Gen. 76] 89

IV

Conclusion

In sum ma ry, it is our o pinion that:

1. The “involunt ary separ ation” provisi on in the Su pp l eme ntal Retire me nt Plan does not ap ply to e lected officials who are barr ed from reel ecti on by term li mits in t he Prince Geo rge’s Co unt y C har ter.

2. Because the C oun ty Co uncil g ave t he Plan’s trust ees extrao rdinar ily broad authority to amend the Plan and lat er effectiv ely ratifi ed all of the t rustees’ amendmen ts, the tr ustees acted with in the ir au thority w hen th ey ind epen dently adde d certa in augmented benefit s for t hose who were “involunt arily separat ed” from Co unt y se rvic e. J. Joseph C urran, Jr. AttorneyGeneral

Jack Sch wa rtz Chief Counsel Opinions & Advice