98 [78 Op. Att’y

COURTS AND JUDGES

CONSTITUTIONAL LAW — PUBLIC OFFICERS AND EMPLOYEES —

SERVICE BY DISTRICT COURT JUDGE ON INTERMEDIATE

SANCTIONS POLICY BOARD

January 27, 1993

The Honorable Frank M. Kratovil

District Court for Prince George’s County

You have requested our opinion whether the Maryland

Constitution precludes a District Court judge from serving as a

member of the Intermediate Sanctions Policy Board, an entity

created by Prince George’s County to develop policy guidelines for

pretrial release and intermediate sentencing in the county.

For the reasons stated below, we conclude that the Maryland

Constitution does not preclude a District Court judge from serving

as a member of the Intermediate Sanctions Policy Board. 

I

The Policy Board

In July 1992, the County Council of Prince George’s County

enacted legislation to establish the Intermediate Sanctions Policy

Board. The Board comprises five voting members, including two

judges, one from the Circuit Court and one from the District Court.
Gen. 98] 99

 The full text of this subsection is as follows: 1

The Intermediate Sanctions Policy Board

shall consist of five (5) voting members. They

shall be (1) a judge of the Circuit Court for Prince

George’s County to be designated by the County

Administrative Judge; (2) a judge of the District

Court of Maryland for Prince George’s County

designated by the Administrative Judge; (3) the

State’s Attorney for Prince George’s County or

the State’s Attorney’s designee, (4) a member of

the County Council designated by the Chairman

of the Council, and (5) the County Executive or

the County Executive’s designee. 

The Board also has three ex officio nonvoting members. §7-196(b).

We assume that the State public officers designated to serve on the

Board are willing to do so. With respect to judges, Canon 4B(2) of the

Maryland Code of Judicial Conduct authorizes a judge to “serve on

governmental advisory bodies devoted to the improvement of the law, the

legal system or the administration of justice ....” Accordingly, we need not

and do not address the County’s authority to require such service of State

officers.

§7-196(a) of the Prince George’s County Code. The Board has the 1

following purpose and duties: 

(a) The purpose of the Intermediate

Sanctions Policy Board shall be to develop

policy guidelines for pretrial release and

intermediate sentencing in the county.

(b) The Board shall advise the Director of

the Department of Corrections in specific

policy areas dealing with pre-trial release. 

(c) The Board shall determine the scope

and objectives of the pre-trial release program.

(d) The Board shall recommend ways in

which the public image and public awareness

of the pre-trial release program may be

enhanced.
100 [78 Op. Att’y

(e) The Board shall formulate a policy of

screening criteria for pre-trial release program

participants. 

(f) The Board shall evaluate data to

determine the effectiveness of the pretrial

release program. 

II

Article 35

Article 35 of the Declaration of Rights provides that “no

person shall hold, at the same time, more than one office of profit,

created by the Constitution or Laws of this State ....” 

The position of District Court judge, is of course, an office of

profit. The position of member of the Intermediate Policy Sanctions

Board, however, is not. Section 7-196(d) of the Prince George’s

County Code provides that “[a]ll members of the Board shall serve

without additional monetary compensation” ) that is, compensation

beyond that of the positions already held by the Board members. 

An uncompensated position cannot be an “office of profit” for

purposes of Article 35. Therefore, Article 35 does not bar a public

officer from simultaneous service on the Intermediate Sanctions

Policy Board. 

III

Article 33

Article 33 of the Declaration of Rights contains a separate and

more broadly worded restriction on the holding of other positions by

judges: “No Judge shall hold any other office, civil or military, or

political trust, or employment of any kind, whatsoever, under the

Constitution or laws of this State ....” 
Gen. 98] 101

 By contrast to Article 35, a position that is an “office” comes

2

within Article 33 even if it is uncompensated; it need not be an “office of

profit.” 

A. “Office”

The first issue under Article 33 is whether membership on the

Intermediate Sanctions Policy Board is an “office.” In applying the

term “office” in Article 33, we use the same criteria as have been

developed over the years for determining whether a position is an

“office” for purposes of Article 35. See 60 Opinions of the Attorney

General 121, 126 (1975). Prior opinions of this office have 2

summarized these criteria as follows: 

(1) The position was created by law and

involves continuing and not occasional duties.

(2) The holder performs an important public

duty.

(3) The position calls for the exercise for

some portion of the sovereign power of the

State. 

(4) The position has a definite term for

which a commission is issued and a bond and

an oath are required. 

(5) The position is one of dignity and

importance. 

72 Opinions of the Attorney General 271, 272 (1987); 59 Opinions

of the Attorney General 154, 156 (1974). See Board of Supervisors

of Elections v. Attorney General, 246 Md. 417, 439, 229 A.2d 388,

230 A.2d 61 (1967). Of these criteria, “the single most important

characteristic of a public officer is that the ‘public servant

exercise[s] in his own right some of the sovereign powers of

government for the benefit of the public.’” 68 Opinions of the

Attorney General 358, 361 (1983) (quoting Duncan v. Koustenis,

260 Md. 98, 105, 271 A.2d 547 (1970)). 
102 [78 Op. Att’y

In our view, members of the Intermediate Sanctions Policy

Board do not hold an “office.” Except for one non-voting attorney

member, the members of the Board do not serve definite terms. No

commission is issued, no bond is posted, and no oath is required.

Most importantly, the members of the Board exercise no sovereign

power in their own right. Their role is essentially one of presenting

policy recommendations and evaluating the way in which alternative

sanctions programs are functioning. 

B. “Political Trust”

The term “political trust” is synonymous with the term

“office.” 65 Opinions of the Attorney General 285, 287 (1980). Our

conclusion is the same, therefore, with respect to this component of

Article 33: Membership on the Intermediate Sanctions Policy Board

is not a position of “political trust,” because the criteria of an office

are not met.

C. “Political ... Employment”

The term “employment” refers to “an activity engaged in for

purposes of gain or profit.” 65 Opinions of the Attorney General at

288; 63 Opinions of the Attorney General 106, 111-12 (1978).

Because the position of Board member is uncompensated, a judge

does not engage in prohibited “employment” by serving on the

Board. 

IV

Conclusion

In summary, it is our opinion that a District Court judge may

serve on the Prince George’s County Intermediate Sanctions Policy

Board. 

J. Joseph Curran, Jr.

Attorney General

Jack Schwartz

Chief Counsel

 Opinions & Advice