378 [79 Op. Att’y

 In an earlier letter, we discussed a constitutional issue concerning 1

the Retirement Plan for Appointed and Elected Officials. Letter from

Attorney General J. Joseph Curran, Jr., to Delegate Joan Cadden

(December 30, 1993). We advised that the Anne Arundel County Council

would not violate the Contract Clause of the U.S. Constitution should it

(continued...)

PUBLIC OFFICERS AND EMPLOYEES

COUNTIES ) ANNE ARUNDEL COUNTY ATTORNEY EXERCISES

SOVEREIGN POWER

September 8, 1994

The Honorable Robert R. Neall

County Executive for Anne Arundel County 

You have requested our opinion “whether the position of

County Attorney for Anne Arundel County meets the requirements

of the exercise of sovereignty standard as articulated by the decisions

of the Court of Appeals for various constitutional, immunity and

State pension law purposes.”

For the reasons stated below, we conclude that the position of

County Attorney for Anne Arundel County does meet the “exercise

of sovereignty” standard for determining the existence of a public

office. 

I

Background

In a recent opinion, the County Attorney for Anne Arundel

County examined the manner in which the Retirement Plan for

Appointed and Elected Officials of Anne Arundel County has been

administered. Letter from County Attorney Judson P. Garrett, Jr., to

County Executive Robert R. Neall (July 22, 1994) (“Opinion

Letter”). The County Attorney advised that only those appointed

officials who met the traditional test for identifying public officers

were properly encompassed by this retirement plan. 

1
Gen. 378] 379

 (...continued) 1

choose to reduce benefits to participants in the plan. Nothing in this

opinion affects the analysis or conclusion in that prior letter.

 In one of the Supreme Court’s earliest cases, Justice James 2

Wilson observed, rhetorically: “Who, or what, is a sovereignty? What is

his or itssovereignty? On this subject the errors and the mazes are endless

and inexplicable.” Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 456 (1793).

The County Attorney then applied the traditional criteria to the

positions in question, assessing whether each exercised a portion of

the sovereignty of the State as delegated to its political subdivision,

Anne Arundel County. For obvious reasons, the County Attorney

declined to express an opinion concerning the status of the position

of County Attorney itself. Opinion Letter at 36 n.32. Your opinion

request to us then followed. 

Your request does not call upon us to revisit the interpretation

of county law reached by the County Attorney, nor would it be

appropriate for us to do so. See Opinion No. 94-001, 21:8 Md. Reg.

619 (January 5, 1994) (unpublished) (Attorney General opinions

ordinarily avoid interpretation of local law). Nor should we be

understood to be addressing the public officer status of county

attorneys generally. Rather, this opinion is limited to the specific

question posed: whether the Anne Arundel County Attorney meets

the “exercise of sovereignty” criterion for a public office, in light of

the grants of authority to the County Attorney under county law. 

II

Exercise of Sovereignty

As the County Attorney aptly observed in his opinion, “it is

easier to recognize the exercise of sovereignty requirement than to

express it ‘in a definition that will be entirely faultless.’” Opinion

Letter at 34 (quoting State Tax Comm’n v. Harrington, 126 Md. 157,

159 94 A. 537 (1915)). The County Attorney then went on to offer

2

a summary of the governing principles with which we entirely agree:

As with many other creatures of caselaw, there

is no definition of the term “exercise of

sovereignty.” The opinions teach that to
380 [79 Op. Att’y

exercise a portion of the sovereign power is

exercise in one’s own right “some of the

functions of government” that can be validly

performed only pursuant to a specific grant of

governmental power and that are not “purely

ministerial” but, rather, “sufficiently

substantive” and “call for the exercise of

judgment and discretion.”

Opinion Letter at 34-35 (citations omitted). The inquiry must focus

on the attributes of the particular position: “The nature of the duties,

the particular method in which they are to be performed, the end to

be attained, the depository of the powers conferred and the whole

surroundings must be considered when the question as to whether

the position is a public office or not is to be solved.” School

Commissioners v. Goldsborough, 90 Md. 193, 206, 44 A. 1055

(1899). Hence, we turn to these facts about the Anne Arundel

County Attorney. 

III

Powers of Anne Arundel County Attorney

The Anne Arundel County Charter recites the core powers and

duties of the County Attorney. Under §526 of the charter, the

County Attorney is the legal advisor of the county, gives advice and

opinions on legal questions presented by county officials, approves

contracts and other instruments for form and legal sufficiency,

advises the County Executive as to the legality of ordinances passed

by the County Council, and defends county officers and employees

in civil actions. 

No Maryland case or opinion of this office has considered

whether this combination of general duties, characteristic of the

appointed principal lawyer of a home rule political subdivision, are

sufficient in themselves to constitute the exercise of sovereignty.

Were the duties of the County Attorney limited to these, it is

doubtful whether the position could be said to involve the exercise

of sovereignty, for the mere rendering of advice and representation

of a client in court are not attributes of sovereign power. See

Jackson v. Cosby, 179 Md. 671, 675, 22 A.2d 453 (1941) (city

attorney who was retained by the municipality to perform whatever

legal duties were assigned to him was not a public officer because
Gen. 378] 381

 The main power of a notary public is to administer oaths. Article 3

68, §3 of the Maryland Code.

he “exercises no portion of the sovereign power of the government,

but merely performs the duties required of him by the officials

employing him ...”); State Tax Comm’n v. Harrington, 126 Md. at

164 (general counsel to the commission was not a public official and

did not exercise any sovereign power); 58 Opinions of the Attorney

General 3, 11 (1973) (counsel to liquor board); 20 Opinions of the

Attorney General 581, 583 (1935) (town attorney); 14 Opinions of

the Attorney General 230 (1927) (board attorney). Accord, People

ex rel. Dawson v. Knox, 247 N.Y.S. 731, 735 (App. Div. 1931)

(county attorney). But see Bredice v. City of Norwalk, 206 A.2d 433

(Conn. 1964) and Black v. Sutton, 191 S.W.2d 407 (Ky. 1945) (city

attorneys exercise sovereign power). 

These prior authorities are distinguishable, however, because

the Anne Arundel County Attorney has been granted specific powers

beyond the general description in §526 of the County Charter.

Under Article 2, §1-101(a)(11) of the County Code, the County

Attorney may authorize the issuance of a subpoena to compel

testimony or the production of records in connection with

investigations, inquiries, or hearings. Under Article 2, §1-102(a),

the County Attorney “may administer oaths to and take the testimony

of any witness ....” 

In 60 Opinions of the Attorney General 632 (1975), Attorney

General Burch was asked whether the chief administrative clerks of

the District Court were properly considered appointed officials for

certain purposes. While noting that “the bulk of their duties are

purely ministerial,” the Attorney General pointed out that the clerks’

authority “to issue writs, administer oaths, and certify papers under

the seal of the Court are all important public duties which appear to

involve the exercise of a portion of the sovereignty of the State.” 60

Opinions of the Attorney General at 635 (emphasis added). The

Attorney General’s conclusion in this regard is consistent with the

long line of opinions holding notaries public to be officers. See, e.g.,

3 Opinions of the Attorney General 271 (1918).3

The County Attorney also plays a role in the administration of

the county’s self-insurance fund that amounts to the exercise of

sovereign power. The self-insurance fund is used to pay certain

liability and workers’ compensation claims against the county and
382 [79 Op. Att’y

 When a board or commission exercises sovereign powers 4

collectively, each member of the entity is deemed to do so personally for

purposes of “public officer” analysis. See Howard County Metro.

Comm’n v. Westphal, 232 Md. 334, 340-42, 193 A.2d 56 (1963).

 The County Attorney unquestionably exercised sovereign power 5

under Article 9 of the CountyCode, the county’s public ethics law. Until

June 30, 1993, the County Attorney had overall responsibility for

administering the local ethics law, including the power to review financial

disclosure statements for compliance and to conduct investigations and

hearings. See 60 Opinions of the Attorney General 530 (1975). Effective

July 1, 1993, a County Ethics Commission assumed responsibility for

administration of the county ethics law. §100C(b) of the County Charter.

other entities. Article 2, §5-101 of the County Code. The fund is

administered by a self-insurance fund committee, including the

County Attorney, which has the following powers: 

(1) Review and approve all claims for

payment from the fund where the amount to

be paid exceed $5,000;

(2) Establish policies relating to the

operation and maintenance of the fund; and 

(3) Adopt rules and regulations necessary

for the operation of the fund ....

§5-104(d) of the County Code. These discretionary acts involve the

exercise of sovereign power. See 57 Opinions of the Attorney

General 595, 601-03 (1957) (rulemaking power is “clearly of

sovereign dimensions”).4

This partial review of the powers and duties of the County

Attorney already establishes that the County Attorney exercises

personally some portion of the sovereign power of the State, as

delegated to Anne Arundel County. Thus, we need not consider the

effect of various other grants of authority, some of which (including

certain civil enforcement powers under Article 11, §6-102(g)(1),

Article 26, §1-114, and Article 28, §17-102(f)(1) of the County

Code) also appear to involve the exercise of sovereignty. 

5
Gen. 378] 383

IV

Conclusion

In summary, it is our opinion that the position of County

Attorney for Anne Arundel County meets the requirements of the

“exercise of sovereignty” standard under Maryland law. 

J. Joseph Curran, Jr.

Attorney General

Jack Schwartz

Chief Counsel

 Opinions & Advice