Gen. 27] 27

BALTIMORE CITY

ELECTIONS ) AUTHORITY TO CONDUCT SPECIAL ELECTION TO

FILL CITY COUNCIL VACANCIES

March 3, 1998

Merle Ann Beck, Esquire

City Solicitor’s Office

You have requested our opinion concerning implementation of

a provision in the Baltimore City Charter for filling vacancies on the

Baltimore City Council by election. Our opinion is that without

enactment of a constitutional amendment or a State statute that

addresses the issue, the charter provision cannot be given effect.

I

Charter Provision and Its Potential Application

The matter of filling vacancies in the Baltimore City Council

is addressed in the new Baltimore City Charter, which was approved

by the City’s voters at the 1994 general election and went into effect

on July 1, 1996. Article III, §6 of the Charter provides as follows:

Each vacancy in the City Council shall be

filled without delay from the council district in

which the vacancy occurs by:

(a) after public notice, the election as an

acting council member by the City Council by

a majority vote of its members of a person

possessing the qualifications prescribed in

Section 1; and 

(b) the election by the voters at the

primary and general elections next regularly

scheduled after the vacancy occurs of a person

possessing the qualifications prescribed in
28 [83 Op. Att’y

Section 1 to serve the remainder of the

unexpired term of the former incumbent.

An opinion issued by your office on September 26, 1996,

concluded that a vacancy occurring on June 11, 1996, would be

filled on an interim basis by the City Council. The opinion also

concluded that the elections to fill the remainder of the term would

take place at the time of the statewide primary and general elections

in 1998. Accordingly, you have asked about the appropriate

procedure to include councilmanic candidates for this vacancy on the

ballot during the forthcoming State election cycle. Before this

question can be addressed, however, a predicate issue must be

considered: whether the City is authorized under current law to

provide in its charter for filling vacancies on the City Council by

election of the voters.

II

Authority to Fill Vacancies by Election

In Prince George’s County v. Board of Supervisors of

Elections, 337 Md. 496, 654 A.2d 1303 (1994), the Court of Appeals

considered whether a charter home rule county could provide in its

charter for filling council vacancies by special election. The Court

recognized that, under Article XI-A of the Maryland Constitution,

a special election could be held to fill the initial membership of a

county council upon the adoption of a charter. The Court concluded,

however, that Article XI-A did not grant the charter counties “the

authority to fill later vacancies on their council by election.” 337

Md. at 506. Moreover, the Court held, the Express Powers Act,

Article 25A of the Maryland Code, granted no authority to the

charter counties to hold special elections to fill council vacancies.

337 Md. at 506-7.

In response to this decision, the General Assembly enacted an

amendment to Article XI-A, §3, approved by the voters in 1996, to

provide that a county council could enact a local law “as expressly

authorized by statute, to provide for the filling of a vacancy in the

County Council by special election.” The Quadrennial Elections

Article, Article XVII, §2, also was amended. 
Gen. 27] 29

Although Baltimore City has adopted a charter under Article XI-A, 1

there are certain differences between the counties that have adopted a

charter under Article XI-A and Baltimore City. See generally Cheeks v.

Cedlair Corp., 287 Md. 585, 599, 415 A.2d 255 (1980). The article itself

distinguishes between the counties and the City and between county

councils and the City Council. See Article XI-A, §§2 and 3. In particular,

§2 directs the General Assembly to enact a law providing for a grant of

express powers to the counties. This grant of legislative powers is

contained in the Express Powers Act, codified as Article 25A, §5. A

separate enactment, however, codified in Article II of the City Charter,

grants legislative powers to Baltimore City. Cheeks, 287 Md. at 600 n. 2

and 607. Moreover, the authority to alter certain provisions of Article XI

of the Constitution, which was previously vested in the General Assembly,

is vested in the voters and can be exercised through amending the charter.

See Article XI, §9 and Article XI-A, §6. See also Cheeks, 287 Md. at 600,

604, and 609. 

The 1996 amendments explicitly refer only to “County

Councils.” In a statement on the proposed constitutional

amendment, Senate Bill 524 (Chapter 81 of the Laws of Maryland

1996) and companion legislation, Senate Bill 666 (Chapter 674 of

the Laws of Maryland 1996), Senator Green, the sponsor, referred

only to the charter counties, which he named. He made no mention

of Baltimore City. See Statement of February 22, 1996 of Senator

Leo Green before the Senate Environmental and Economic Matters

Committee. Although a bill analysis of Senate Bill 524 notes that,

for most purposes, Baltimore City is also subject to the same

provisions of the Constitution as a charter county, the committee’s

floor report refers only to authorizing a “charter county to provide

for filling a vacant county council seat” by special election.

(Emphasis added.) Moreover, the companion legislation, Senate Bill

666, amends only the Express Powers Act for the counties, Article

25A, §5, and not Article II of the City Charter, which contains the

express powers of Baltimore City.1

The power to adopt and amend a charter is derived from the

Constitution itself. Ritchmount Partnership v. Board of Supervisors

of Elections, 283 Md. 48, 58-9, 388 A.2d 523 (1978). There is no

basis for the conclusion that the City has any greater power than a

county under Article XI-A to provide in its charter for filling a

council vacancy by an election. Moreover, no provision in the grant

of express powers to the City, Article II of the City Charter, could be
30 [83 Op. Att’y

 As it has been understood that the Quadrennial Election Article 2

does not apply to the election of the Mayor and Council of Baltimore, it

would have not have to be amended.

interpreted as authorizing the City to conduct such elections.

Therefore, because the Court of Appeals has said that Article XI-A

does not confer the power to provide in a county charter for an

election to fill a council vacancy; because this limitation is true of

the City’s power as well; and because the amendment to Article XIA authorizing special elections to fill council vacancies applies only

to the charter counties, it follows that the City Charter provision for

an election to fill a City Council vacancy cannot be given effect. 

The opinion of your office correctly observed that the “City

does not possess the legal authority to fill interim vacancies on the

City Council by special election,” citing the Prince George’s County

case. The suggestion seems to be that so long as the election to fill

a council vacancy is conducted at a regular election, as provided in

the charter, it would not be a “special election.” However, the

Prince George’s County case specifically states that after the initial

election to fill the membership of the council, there is no authority

“to fill later vacancies ... by election,” which evidently means any

election. 337 Md. at 506. Moreover, even if only a “special

election” is not authorized, the fact that an election is held at the

same time as a regular election does not mean that it is not a special

election. See, e.g., State ex rel. Lanier v. Hall, 23 N.W.2d 44, 49

(N.D.1946). One of the indicia of a special election is that it is used

to fill an unexpired term. See Article 33, §22-1(b). See generally

Cohen v. Governor of Maryland, 255 Md. 5, 17-18, 255 A.2d 320

(1969). That is clearly the purpose of the election provided for by

the Charter.

III

Effectuating the Charter Provision

One certain way to give effect to the Charter provision would

be to expressly sanction it in an amendment to Article XI-A of the

Constitution. More uncertainly, the Charter provision might also be 2

given effect by a State statute, including a State statute authorizing

enactment of an ordinance providing for an election to fill City
Gen. 27] 31

 We must point out, however, that in the Ritchmount case, the Court 3

declined to rule on the effect of a State statute, Article 25, §8, authorizing

the reservation of the right of referendum in a charter. 283 Md. at 54 n.5.

Moreover, that case emphasized that the power to amend a charter is

derived from the Constitution itself, Ritchmount 283 Md. at 58-9, which

could be taken to mean that only the Constitution could sanction the

charter provision for filling council vacancies by election. Therefore, the

legislative approach discussed in the text is by no means free from doubt.

 Aside from the interpretive issue concerning the application of §2- 4

9(h), this office has noted an inconsistency between the constitutional

amendment, which refers to an authorizing State statute and local law, and

the implementing legislation, which refers to a charter authorization. See

Letter of May 15, 1996 from Attorney General Curran to Governor

Glendening concerning Senate Bill 666. 

Council vacancies. The Prince George’s County case refers to the

absence of an authorization in the Express Powers Act. 337 Md. at

506-7. The implication is that this Act, or the comparable law for

the City, could be amended to authorize such elections. Because this

is the closest case on point, and because legislative enactments are

presumed to be constitutional, we would approve legislation of this

kind on bill review.3

Once an election to fill City Council vacancies has been

properly authorized, we recommend that Article 33, the Election

Code, be amended to explicitly authorize the Board of Supervisors

of Elections for Baltimore City to conduct the election. See Prince

George’s County, 337 Md. at 508-9. We recognize that, for

purposes of the Maryland Code, the word “county” ordinarily

includes “Baltimore City.” Article 1, §14. In addition, elections in

Baltimore City are generally covered by the Election Code. Article

33, §1-1(a)(6). Nevertheless, the specific provision of the Election

Code addressing this matter, Article 33, §2-9(h), provides that “[i]f

a county charter authorizes the conduct of a special election to fill

a vacancy in the county council,” the local election board is to

conduct the election “in accordance with the provisions of the

charter.” The references to “a county charter” and “the county

council” suggest that this provision applies only to the counties, not

Baltimore City, especially because the law that enacted §2-9(h) was

contingent on a constitutional amendment that itself applies only to

the counties. See Section 2 of Chapter 674. To ensure certainty 4
32 [83 Op. Att’y

about the City election board’s legal authority, this provision should

be expanded to cover councilmanic special elections in the City.

IV

Conclusion

In summary, it is our opinion that the provision in the

Baltimore City Charter for filling City Council vacancies by election

cannot be given effect at this time. It may be given effect if

sanctioned by a constitutional amendment or a State statute.

J. Joseph Curran, Jr.

Attorney General

Richard E. Israel

Assistant Attorney General

Jack Schwartz

Chief Counsel

 Opinions and Advice

Editor’s Note:

The provisions of former Article 33 cited in this opinion have

been recodified in the Election Law Article.