76 [80 Op. Att’y

1

 You also asked whether, if the trustees did exceed their authority,

the benefits awarded under that provision could be rescinded. In light of

our conclusion that, taking into account the actions of the County Council,

the trustees did not exceed their authority, this question is moot.

COUNTIES

RETIREMENT SYSTEMS ) INVOLUNTARY SEPARATION UNDER THE

PRINCE GEORGE’S COUNTY SUPPLEMENTAL PENSION PLAN

February 23, 1995

The Honorable Robert H. Kittleman

House of Delegates

You have requested our opinion on two questions related to the

Prince George’s County Supplemental Pension Plan for General

Schedule Employees (the “Plan”): 

1. You ask whether we agree with the conclusion of the

Plan’s private counsel that the Plan’s “involuntary separation”

provision applies to elected officials who are barred from seeking

reelection by the term limitation provisions in the Prince George’s

County Charter. 

2. Citing press accounts describing the decision by the

trustees of the Plan to add certain benefits for Plan participants who

were “involuntarily separated” from County service, you ask

whether the trustees had authority to create this new benefit without

the approval of the County Council.1

For the reasons stated below, our opinion is as follows:

1. We disagree with counsel’s interpretation of the

“involuntary separation” provision. In our view, the provision does

not apply to elected officials who are barred from reelection by term

limits in the Prince George’s County Charter. 

2. Because the County Council gave the Plan’s trustees

extraordinarily broad authority to amend the Plan and later

effectively ratified all of the trustees’ amendments, the trustees acted
Gen. 76] 77

2

 Under Article IX, §903 of the Prince George’s County Charter,

“Salaries and wages of both classified and exempt service employees shall

be determined in accordance with classification and salary plans.” The

latter are submitted in resolution form. See §16-125(a) of the County

Code. The County Code defines “Salary Plan” more broadly than

“salaries and wages,” the terms used in the Charter. Under §16-102(53)

of the Code, a “Salary Plan” is a “compilation of salary schedules ...

setting forth the compensation for employees .... As used herein, the term

‘compensation’ shall mean and include the base salary rates of all ...

employees and any other special salary rates and fringe benefits ....”

(Emphasis added.) We express no view on the procedure that has been

used over the years to establish fringe benefits like pension benefits. We

do note that, in any event, an ordinance has codified the Plan. Bill No.

CB-101-1994 (effective January 1, 1995). See note 20 below and

accompanying text.

within their authority when they independently added certain

augmented benefits for those who were “involuntarily separated”

from County service. 

We hope that this opinion, which identifies one legal error that

resulted in the award of benefits outside the intent of the Plan, will

serve as a catalyst for the trustees, the County Executive, and the

County Council to reexamine the Plan from top to bottom. Given

the dire financial situation now facing Prince George’s County, the

Plan deserves a very hard look.

I

History of the Plan

On June 5, 1990, the Prince George’s County Council adopted

a resolution for “the purpose of amending the Salary Plan of the

County to reflect new pay rates and other benefits for General

Schedule employees.” Resolution No. CR-37-1990.2

 The resolution

approved “a supplemental retirement benefit” and incorporated a

document that summarized this new benefit, among others. 

Section IX-E of the attachment to the resolution began with the

following general description of the new “supplemental retirement

benefit”: “Effective December 30, 1990, employees covered by this

salary schedule may elect to participate in a supplemental retirement

benefit program pursuant to rules established in the Supplemental
78 [80 Op. Att’y

3

 The term “Employer” means Prince George’s County. Article I,

§7. The Trust Agreement was executed on behalf of the County by the

County Executive. The “Fund” means the Trust Fund for the Plan.

Article I, §8.

Retirement Plan. The supplemental retirement program will be

jointly funded through County and employee contributions.”

(Emphasis added.) The attachment then outlined certain benefits,

vesting requirements, and a funding mechanism, together with a few

definitions, but the Council was content simply to recognize that the

details of the new benefit program were largely set out in the

“Supplemental Retirement Plan” to which the resolution attachment

referred. 

The Plan document provides that “[t]he Trustees shall have

administrative powers and duties with respect to the Plan provided

in the Trust Agreement and all other powers and duties with respect

to the Plan described herein.” §8.1. The term “Trustees” is defined

as “the person or persons who, at the particular time, constitute the

Board of Trustees under Article III of the Trust Agreement.” §1.27.

The Trust Agreement was entered on December 31, 1990,

“between Prince George’s County, Maryland, a body corporate and

politic ... and Frank W. Stegman, Michael J. Knapp, and Eric

Tucker, as Trustees ....” Under Article III, §1 of the Trust

Agreement, “the operation and administration of the Fund shall be

the joint responsibility and administration of a Board of Trustees

comprised of three Trustees designated by the Employer.”3 Article

III, §3 provides that “Trustees may be removed and replaced at will

by the County Executive.” 

The Trust Agreement and the Plan document vest extremely

broad powers in the trustees. Article IV, §2 of the Trust Agreement

leaves construction of the agreement up to the trustees and provides

that “[a]ny construction adopted by the Trustees in good faith is

binding upon the Employer and the Employees.” The Trust

Agreement goes on to empower the trustees, among other things, to

“take all actions and make all decisions necessary or proper to carry

out the provisions of the Plan,” “make and enforce such rules and

regulations as they shall deem prudent for the efficient

administration of the Plan,” “interpret the Plan,” and “decide

questions concerning the Plan and the eligibility of any employee to

participate therein and the rights of any person to receive benefits
Gen. 76] 79

4

 The power to amend in the Plan document states that it is limited

by contract and vested rights. The full text of Section 12.1(a) is as

follows:

Either the County or the Trustees may at any

time modify or amend the Plan in whole or in

part, except to the extent otherwise provided by

any contract to which the County is a party,

including any agreement between the County and

any collective bargaining unit representing any of

the Employees of the County, as such agreement

shall be in effect from time to time; provided

however, that any modification or amendment of

the Plan shall not affect, unless expressly set forth

in the amendment or modification, or adversely

affect in any case, any rights or benefits under the

Plan existing at the date of such modification or

amendment in respect of any Participant who shall

have retired, been retired or otherwise ceased to

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

adversely affect accrued benefits under the Plan

existing at said date in respect of any Participant

who at said date shall be in the employ of the

County.

thereunder.” Article IV, §3b, c, d, and e. The Plan document,

moreover, vests in the trustees a unilateral right to amend the Plan:

“Either the County or the Trustees may at any time modify or amend

the Plan in whole or in part ....”4

The trustees have exercised their power to amend the plan

eleven times. The third of these amendments, effective February 1,

1992, provided for the “discontinued service benefit” that is the

focus of your inquiry. 

This new benefit, embodied in §3A.3 of the Plan, is available

to “a Participant who is involuntarily separated from service as an

Employee for any reason unrelated to a disciplinary action or a

disability ... immediately upon such separation from service,

provided that the Participant has 15 or more years of Eligibility

Service.” Plan §3A.3(a). As originally set out in the third

amendment to the Plan, a participant eligible for the discontinued

service benefit would receive a percentage of annual compensation

(ranging from 12 to 20 percent, depending on the number of years

of creditable service) immediately after separation from service as
80 [80 Op. Att’y

5

 Ordinarily, an employee who leaves County service receives a

lump sum payment for the value of all of the employee’s accumulated

annual leave and 50 percent, rather than 100 percent, of the value of the

employee’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

changes unrelated to the discontinued service benefit.

7

 This amendment, by itself, apparently did not significantly

increase the discontinued service benefit. Coupled with an increase in the

normal benefit accrual the next month, however, the discontinued service

benefit did increase significantly. See Tenth Plan Amendment dated June

26, 1994.

The only other amendment to the discontinued service benefit was

(continued...)

a County employee, instead of waiting until normal retirement age.

§3A.3(b). In addition, the discontinued service benefit called for “a

lump sum benefit equal to 100% of all or any portion or the sum of

... Participant’s annual leave balance multiplied by the Participant’s

final base hourly rate of pay, plus ... the Participant’s sick leave

balance multiplied by the Participant’s final base hourly rate of pay

....” §3A.3(e)(i).5 The Plan amendment contemplated County

funding of this augmented benefit: “The County must contribute to

the Trust Fund from time to time such amounts as are actuarially

determined to be required to provide the benefits described in this

Section 3A.3 to the extent that they exceed the benefit that would

have been payable to the Participant under §3.3,” which is the

ordinary benefit amount under the Plan. §3A.3(f).6

A little more than two years later, on May 1, 1994, the trustees

changed the method of calculating the discontinued service benefit.

This amendment asserted that, although the amount of the

discontinued service benefit was stated in the original amendment as

a percentage of the participant’s average annual compensation

ranging between 12% and 20%, “such percentage was intended to be

150% of the basic benefit calculated under Section 3.2 of the Plan.”

The trustees then observed that, because “the Plan has since been

amended to increase the basic benefit, with no corresponding

increase in the discontinued service benefit ..., the Trustees wish to

amend the plan to clarify that the discontinued service benefit shall

equal 150% of the basic benefit ....” An amendment to §3A.3(b)

achieved that result.7 
Gen. 76] 81

7

 (...continued)

made by the trustees on December 1, 1994. The trustees expressed a wish

“to amend the Plan to allow Participants who receive a discontinued

service benefit ... to elect to receive their first year’s benefit in an

actuarially reduced lump sum.” New language was added to §3A.3(b) to

achieve that result.

II

Term Limits and “Involuntary Separation”

A. Introduction

In order to be eligible for the discontinued service benefit, a

Plan participant must have been “involuntarily separated” from

County service. Plan §3A.3(a). The term “involuntarily separated”

is not defined. The Plan does make clear, however, that the benefit

is not available if the separation results from disciplinary action or

disability. Id. See also §3A.3(g). 

Article III, §307A of the Prince George’s County Charter

provides as follows: “No person shall be eligible to serve more than

two consecutive terms on the County Council.” The same section

also provides that: “No person shall be eligible to serve more than

two terms as County Executive.” These term limits were added to

the Charter by an amendment approved by the voters in November

1992.

On July 6, 1994, the private firm that provides pension counsel

to the County offered its opinion “whether elected officials who are

precluded from running for another term due to the County’s term

limitations are eligible for the discontinued service benefit provided

for under Section 3A.3 of the Plan.” Counsel’s analysis was that

elected officials barred from seeking reelection by charter term

limitations fall within the category of those who are “involuntarily

separated”: 

Section 3A.3 was adopted in 1992 and, as

I recall, was drafted with the intent that it

applied to employees who were terminated as

a result of a reduction-in-force. However, ...

it was not drafted so narrowly as to apply only

to such employees. Basically, an employee
82 [80 Op. Att’y

8

 On August 1, 1994, the County Office of Law indicated its

concurrence with pension counsel’s conclusion. Memorandum from

Bernadette F. Lamson, Esquire, to David L. Goode, at 2.

9

 As 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 foregoing, I believe the

Trustees may conclude that elected officials who are prevented from

seeking an additional term because of the County’s term limitations are

entitled to a discontinued service benefit ....” Letter at 2.

must have at least 15 years of Eligibility

Service under the Plan and must meet two

additional tests. Clearly these elected officials

meet the first test, because their separation

from service is not related to disciplinary

action or disability. The second test is

whether they are being “involuntarily

separated from service.” Black’s Law

Dictionary defines involuntary as “without

will power or choice.” It would seem that

these elected officials meet this definition

because the term limitation provisions take

away their ability to choose whether or not to

run for an additional term.

Letter from Cheryl O’Donnell Guth, Esquire, to Kathleen W.

Colbert, at 2 (July 6, 1994).8

For the reasons stated below, we are unable to agree with this

construction of the pertinent provision of the Plan. Much the better

construction, in our view, is that the “involuntary separation”

language does not apply to elected officials who are ineligible to

seek another term because of term limitations. 

Nevertheless, we must emphasize a point also touched on in

pension counsel’s letter: Very broad authority to interpret the

provisions of the Plan, including questions about eligibility, is vested

in the trustees.

9

 See Plan §8.10; Trust Agreement Article IV, §§2

and 3d and e. When the trustees adopted counsel’s interpretation,

they acted within the scope of this grant of authority. Hence, unless

the trustees reassess their conclusion or a court or legislative body

compels a different result, their interpretation, albeit one with which

we disagree, will remain effective.
Gen. 76] 83

10 The County Charter specifies an annual level of “compensation”

for Council Members and the County Executive. Article III, §308, and

Article IV, §406. This “compensation” may only be changed by an

affirmative vote of not less than two-thirds of the members of the

Council,” effective with the start of a new term. Id. The pension parity

language in Resolution No. CR-179-1985 was not inconsistent with the

Charter, however, because the “compensation” referred to in §§308 and

406 is the annual salary, not future benefits 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 type of deferred

compensation, a pension has certain unique characteristics .... It results in

no current receipt of money benefits nor, in fact, anything additional

during the term.”)

B. Eligibility of Elected Officials

A threshold question is whether elected officials are entitled to

participate in the Plan. The resolution enacting it was in the form of

an amendment to the County’s salary plan “for General Schedule

employees.” Resolution No. CR-37-1990. Elected officials are

obviously not General Schedule employees. 

The answer lies in an earlier Council resolution, No. CR-179-

1985, which enacted a leave and benefits program “for exempt

service employees.” Among other things, this resolution provided

as follows: “All exempt employees are entitled to and subject to the

same retirement and pension benefits as are provided by the

Personnel Law or other law to classified service employees of the

County.” §E.1. Under this resolution, the “exempt employees” who

gained this parity included “elected officials.”10

Hence, when the County Council created the Supplemental

Pension Plan for General Schedule Employees in 1990, that new

benefit became available to exempt service employees, including

elected officials, by virtue of the 1985 resolution granting exempt

employees the same retirement and pension benefits as are provided

to other employees. The Plan document itself correctly recognized

the interaction of the two resolutions by defining the term “Covered

Employee” to mean, in part, “any elected official (within the

meaning of Section 902(1) of the Prince George’s County Charter)

....” §1.8. Thus, the premise of the term limits analysis ) that

elected officials are covered by the Plan and potentially eligible for

the discontinued service benefit ) is correct. 
84 [80 Op. Att’y

11 Given the Plan’s incorporation into a resolution, its subsequent

recognition in an ordinance, and its governmental nature, we believe that

principles of statutory construction ought to be applied to the Plan

document.

We note that a provision of 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. §5595(b)(2) (severance pay for employees “involuntarily

separated from the service”). We have reviewed the small body of federal

cases that interpret this language but find little in them that potentially

bears on this problem. Moreover, we have no evidence that the pertinent

provision in the Plan had been drawn from this federal law.

12 “Separate” means to “disconnect or sever.” Black’s Law

Dictionary 1364 (6th ed. 1990).

C. “Involuntarily Separated”

We agree with pension counsel’s suggestion that analysis of

the meaning of “involuntarily separated from service” must begin

with that language, “as the words of the statute, given their ordinary

and popularly understood meaning, are the primary source of

legislative intent.” Gargliano v. State, 334 Md. 428, 435, 639 A.2d

675 (1994).11 “In so doing, however, the words ... must be ‘read in

light of the full context in which they appear, and in light of external

manifestations of intent or general purpose available through other

evidence.’” 334 Md. at 436 (quoting Cunningham v. State, 318 Md.

182, 185, 567 A.2d 126 (1989)).

It is indeed true that term limits are “involuntary,” in the

ordinary sense of that word. That is their very purpose ) to deprive

an incumbent of the discretion to seek another term, in order to

achieve the presumed benefits of new leadership.

A term limit does not “separate” an incumbent from office,

however; the expiration of the incumbent’s term does.12 Term

limits, rather, are best understood as a qualification applicable to

seekers of the new term. The qualification is that someone who held

the office for the previous two terms is ineligible for another

consecutive term. See Thorsted v. Gregoire, 841 F. Supp. 1068,

1078-79 (W.D. Wash. 1994); U.S. Term Limits, Inc. v. Hill, 872

S.W.2d 349, 357 (Ark.), cert. granted, 114 S.Ct. 2703 (1994);

Stumpf v. Lau, 839 P.2d 120, 123 (Nev. 1992).
Gen. 76] 85

13 That opinion concluded that an elected official who “actively

sought and was denied reelection” was involuntarily terminated. 66

Opinions of the Attorney General at 223. It might be argued that the

incumbent who is denied the opportunity to seek reelection by a term limit

is functionally in the same situation as one who seeks reelection and loses.

We do not believe that such an extension of the 1981 opinion to this

context is warranted, however, for the conclusion in that opinion was

linked to statutory language that expressly referred to the possibility of an

incumbent who was “not ... reelected.” See 66 Opinions of the Attorney

General at 222. If the language in the relevant State statute at the time

had been identical to that in the Plan, the opinion would have been

different.

14 The minutes of the pertinent meeting of the Board of Trustees

simply recite the Board’s action in adopting the discontinued service

benefit. Minutes of meeting of April 10, 1992.

The incumbent’s term simply ends by operation of the law that

defines the duration of the elected official’s term, quite

independently of whether the incumbent is eligible for a successive

term. The end of a term, by itself, is not the equivalent of

involuntary separation. See 66 Opinions of the Attorney General

211, 222 (1981).13

Our construction ) that the fact of a term limit makes an

incumbent ineligible for another consecutive term but is not the

proximate cause of the incumbent’s separation from County service

) seems to us not only consistent with the text but also far more

harmonious with the apparent purpose of the discontinued service

benefit. While contemporaneous documentation of the actions of the

trustees in adopting the benefit does not explain its purpose,14 the

Plan’s annual report dated August 9, 1993, does describe the benefit

as applying to employees “who are involuntarily separated ...

because of a reduction in force.” Annual Report at 5.

Material from sources knowledgeable about the Plan likewise

reflects this sense of the purpose of the discontinued service benefit.

As noted above, pension counsel’s letter states a recollection that the

discontinued service benefit “was drafted with the intent that it

applied to employees who were terminated as a result of a reductionin-force.” See Part IIA above. An earlier letter from the County’s

Chief Administrative Officer corroborates that understanding of the

underlying purpose: “In order to protect senior employees in the

event of a reduction in force, the Trustees of the General Schedule
86 [80 Op. Att’y

15 Mr. Riddick’s letter sought an opinion on the narrow issue

whether an in-term increase of pension benefits for elected officials would

violate Article III, §35 of the Maryland Constitution. We concluded that

such an increase would not violate that provision. Opinion No. 93-032

(August 11, 1993) (unpublished).

16 Indeed, office holders in a charter home rule county are always

“subject to the possibility that they may be ousted under the provisions of

the Home Rule Amendment providing for the adoption [and amendment]

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 been asked, and therefore do not address, any

question about the application of the “involuntary separation” language to

individuals other than elected officials.

Plan adopted a discontinued service benefit.” Letter from Major F.

Riddick, Jr., to Mrs. Ann Landry Lombardi, Chair of the County

Board of Ethics, at 5 (January 7, 1993). In a letter to the Attorney

General on the same date, the Chief Administrative Officer likewise

characterized the discontinued service benefit as one “provided for

employees who are terminated for non-disciplinary reasons (e.g., a

reduction in force) after 15 years of service.” Letter from Major F.

Riddick, Jr., to Attorney General Curran, at 3 (January 7, 1993).15

This purpose is not served by treating elected officials

ineligible for reelection because of term limits as if they were the

victims of a reduction in force. The discontinued service benefit

serves to attract and retain employees who serve the County

indefinitely, by giving them an economic offset to the risk of losing

their jobs if layoffs are needed. Surely no comparable consideration

applies to those who seek elective office, for they do so with full

awareness that with the office comes a finite term.16

In short, to say that a term limit “involuntarily separates” an

elected official from office is to stretch the language so that it covers

a situation far from the problem intended to be addressed by the

provision. We do not endorse such a construction.17 
Gen. 76] 87

18 See note 4 above for a limitation on that authority. We have not

been asked, and therefore do not address, any question about the County

Council’s authority to have vested this degree of standardless authority in

the trustees. Because the County Council has now ratified all amendments

to the Plan made by the trustees, see note 20 below and accompanying

text, this question may be moot in any case.

19 According to an actuarial evaluation of the Plan issued on May

21, 1993, the unfunded actuarial accrued liability of the Plan increased

from just under $16 million as of January 1, 1991, to $25.7 million as of

(continued...)

III

Authority of the Trustees

In our opinion, the Board of Trustees of the Plan acted within

the authority presently granted it by the County Council when they

created the discontinued service benefit. 

Through its Resolution No. CR-37-1990, the County Council

amended the County’s Salary Plan “to reflect ... new pay rates and

other benefits for General Schedule employees.” One of these other

benefits was “a supplemental retirement benefit” that was included

within a “salary schedule” document “submitted and recommended

by the County Executive ..., which is attached hereto and made a

part hereof ....” This salary schedule document, which thus became

part of the resolution itself, referred to “a supplemental retirement

benefit program pursuant to rules established in the Supplemental

Retirement Plan.” The County Council thereby endorsed the Plan

document. 

The Plan document, in turn, could hardly be more expansive in

its grant of authority to the trustees to add new benefits. Under

§12.1(a) of the Plan, the trustees have coextensive authority with the

County “at any time [to] modify or amend the Plan in whole or in

part ....”18 The trustees quite properly have recited their authority

under §12.1(a) every time they have amended the Plan, including the

amendment to create the discontinued service benefit. Moreover,

nothing in §12.1(a) or any other provision dealing with the power of

the trustees requires them to seek County Council concurrence for

a proposed expansion in benefits under the Plan, even though new

benefits would obviously increase the cost of the Plan to the

County.19 
88 [80 Op. Att’y

19 (...continued)

January 1, 1993. See also note 20 below.

20 This bill also expanded the Board of Trustees to five members,

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 County

Executive.” §16.-232.02(b). The bill, which became effective on January

1, 1995, also provides for a cost sharing mechanism between the county

and the employees to eliminate the unfunded liability. 

21 Whether the County Council knew the details of the amendments

effected by the trustees is of no legal significance. See 71 Opinions of the

Attorney General 350, 360 (1986).

Although the trustees made amendments to the Plan on their

own authority, without County Council involvement, the Council

has explicitly recognized the breadth of the trustees’ authority. In

Resolution No. CR-40-1993, adopted on June 22, 1993, “[f]or the

purpose of amending the Salary Plan of the County to reflect new

maximum pay rates and other modified benefits for General

Schedule employees,” the Council approved the following language:

“The Board of Trustees for the Supplemental Pension Plan may

establish contributions and benefit approval rates, maximum benefits

and special retirement incentives or provisions as it deems

appropriate; provided, however, that employee benefits under this

plan may not be reduced without prior approval of the County

Council.” See also Resolution No. CR-56-1994 (same language).

If the trustees may not reduce benefits without prior County Council

approval, the obvious implication is that the trustees may increase

employee benefits without prior approval of the Council, which is

precisely what the Plan document expressly allows and what the

trustees have done. 

Finally, on July 19, 1994, the Council codified the

Supplemental Retirement Plan. See Bill No. CB-101-1994. Under

§16-232.02(a) of the County Code, the Plan, “as established by CR37-1990, and amended from time to time, is hereby recognized.”

(Emphasis added.)20 This language can only be viewed as a

ratification by the Council of the amendments made by the trustees.21
Gen. 76] 89

IV

Conclusion

In summary, it is our opinion that:

1. The “involuntary separation” provision in the

Supplemental Retirement Plan does not apply to elected officials

who are barred from reelection by term limits in the Prince George’s

County Charter. 

2. Because the County Council gave the Plan’s trustees

extraordinarily broad authority to amend the Plan and later

effectively ratified all of the trustees’ amendments, the trustees acted

within their authority when they independently added certain

augmented benefits for those who were “involuntarily separated”

from County service. 

J. Joseph Curran, Jr.

Attorney General

Jack Schwartz

Chief Counsel

 Opinions & Advice