28 [80 O p. Att’y

1 Your requ est do es not provide detail about any particular reorganization

that might be contemplated. We shall be happy to provide you with a

dvice ab out a spec ific prop osal shoul d you req uire it. CLERKS OF COURT

C OURTS A ND J UDGES

) J UDICI AL A DMINISTRATI ON

) P ERSONNEL

) A UTHORIT Y T O I MPLEMENT R EORGANIZATION S R ESULTING I N E MPLOYEE D EMOTIONS

February 16, 1995

Mr. Geo rge B. Riggin, Jr. State Court

Administrator

You have request ed our o pinion wh ether c ertain lan guag e in uncodifi ed Section 4 of Chapter 515, Laws of Maryland 1990, constr ains the cl erks of t he circ uit cour

ts fr om implementing reorgani zati ons with in their o ffic es t hat might l ead to employee dem otio ns a s a re sult o f rea ssig nm ents of jo b du ties.

For the rea sons st ated bel ow, we con clude that Sec tion 4 of Chapter 515 does not preclude employee demotions r esult ing fr om a reorgani zati on within a c lerk’ s offi ce. 1 Of course, any personnel acti ons of thi s kind must be cons ist ent with a pplica ble pe rso nnel procedures.

I

An alysis

As stat ed in 79 Op inions of the A tt orney General29 (199 4), “the laws go verning the business an d operation s of the circuit court clerks’ offices we re ame nded in se veral re spec ts in 1990.” In Chapter515, w hich w as part of these 1990 amend ments, the General Ass em bly amended various pr ovisi ons governi ng the fun ding and operati ons of the cl erks’ of fices , inc luding s everal in Tit le 2 of th e Co urts and Judici al Procee dings (“ CJ”) Arti cle, Maryland Code. Mo re parti cularly, CJ §2-505 pr ovides t hat the number of posit ions in these of

fices are to be as provi ded in the budget; pur suant t o rulesGen. 28] 29

2 Prior to the se changes, the positions within the clerks’ offices were
no twithin any

personne l system, except tho se in Baltim ore City an d W ashingto nCounty. Seeformer Article IV, §26 of the Maryland Con stitution and CJ Title 2, Subtitle 5A. Salaries were set by th e Secretary of Personnel, and budgets for the clerks’ offices, r eflectingthe number of position s, wer e reviewed by the Comptroller and included within the State budget for the Executive Branch. Seeformer CJ §§2-202, 2-205, and 2-505.

3 Article IV, §26 of the Constitution provides as follow s: “Depu ty clerks and oth e r employees of the office of the Clerk shall be appointed and removed according to procedures set by law .” Rules of the Court of Appeals are “law,” of course

. SeeArticle IV, §18(a).

4 An example given in the manual addresses the transfer of employees from

the Baltimore City

Circuit Court Clerk’s Office Pre-Trial Release Service s Division t

o the Dep artment o f Pu b lic Safety and Correctional Services, Division of Parole and Probation. adopted by the Court of Appeals, the posi tions may be in either the State cl assif

ied or uncl assif

ied ser vice or t

he Judici al Branch personnel system; and t he salaries f

or the pos iti ons are t o be set by the Chief Judge and i ncluded in the St ate budget for the Judici al Branch. 2 The Court of Appeals opted for a separ at e personnel system within t

he Judici al Branch. Under Rule 1212d, “st andards and procedures for the selec tion, appointmen t, pr omotion, recla ssif icat ion, trans fer, demotion, s uspension, dischar ge or other disci pline” of

clerks ’ office e mp loyee s are th e resp onsib ility of the St ate Cou rt Administ

rator , subj ect t o the approva l of t he Court of Appeals. 3

Section4 of Chapter 515 pro vides “[ t]hat the Deputy Cler

ks and employees of t

he Offices of the Clerk s of C ourt w ho h old the ir posit ions as of

June 30, 1990 s hall c ontinue t o do so without diminuti on of sal ary, bene fit s, r ights , or pr ivil eges.” Thi s provis ion is a standar d secti on include d in bil ls that ei ther trans fer employees from one agency or of

fice t o another or

that r eorganiz e an agency or offi ce. The draft ing manual in us e in 1990 rec omm ended that s uch
a bill address variou s aspects of the tran sition and perh aps specify “that there s hou ld be n o dim inution in salary , bene fits , etc. ” of the affect ed employees. Depart ment of Legisl ative Reference, Legisl ativeDrafti ng Manual 1989 , at 75. 430 [80 O p. Att’y

5 Thus, for example, pension rights under former Article 73B, §117 of employees appointed

as deputy clerks under former Article IV, of §26 of the Constitution were not intended to be aff ected by the 1990
amen dmentsto the Constitution and Code. The rules adopted by th e Courtof Appeals pursuant to the amended constitutionalprovisions and statutes expressly address these pension rights. SeeRule 1212c.

6 For example, the 1987 le gislation “ reorga nizing Sta te government bycreating and establishingas principal departments of State government the Dep artment of Economic and Employment Development and the Department

of Housing and Community Devel opment ” contained an uncodified

section providing that every employee of the sev eral prior de partmen ts affected by the reorganiza tion “shall transfer without any change or loss of rights, benefits, entitlements, or status ....” Section 4 of Chapter 311, Laws of Maryland 1987. It is inconceivable that the General Assembly intended to guara ntee for ever tha t all of the se employees, sur ely numb e ring in the thousands, would never be adversely affec ted by a subsequent reorganization.

7 The manager

ial authority of the

Court of A

ppealsover the

clerks’ offices is expli cit in the Constitution: “The office and business of the Clerks, in all thei

r depar tments, sha

ll be subjec t to and governed in accordanc e with rules adopted by the Court of Appeals ....” Article IV , §10(a)(2). See alsonote3 above and accompanying text. Therefore, a n excessi vely broad reading of Section 4 of Chapter 515 would raise serious constituti onal questions. Th e f unction of

this specialsecti on is t o prevent any unintende d diminuti on in sal ary and employment benef its as a dir ect result of the l egisl ative reorgani zati on. 5 Section 4 he ld the employees harmless from the imp lemen tation of Ch apter 515 itself.

The secti on was not inten ded to prec lude subse quent diminuti ons in posi tion or salar y that might

resul t fr om reorgani zati ons implemented by management year s l at er. To
con strue this specialsecti on as a perpetual bar to p erson nel sh if

t s wo uld unduly const

rain l egisl ative ly reor ganized agenc ies and offi ces from ma king ma nage me nt dec isions w ithin the ir authori ty. 6 Inste ad of merely pr eservi ng the s tatus quo in the im me diate afterm ath of the legis lati ve reorgani zati on, the spec ial sectio n w ould then afford employees in such reor ganized agenc ies and of fices bene fits not aff

orded other St ate employees . Such a rea ding, whic h is not suggested by the section’s l anguage or apparent purpose , would be unreasonabl e. 7Gen. 28] 31

II

Conclusion

In sum ma ry, it is our opini on that Section 4 of

Chapter 515 of t he Laws of Maryland 1990 does not pr eclude poss ible de m otion s and diminu tions of salary that m ay result fr om r eorganiz ations wit hin the o ffice s of th e circ uit co urt c lerk s.

J. Joseph C urran, Jr. AttorneyGeneral

Julia M . Freit Assist ant Attorney General

Jack Sch wa rtz Chief Counsel Opinions & Advice