58 [81 O p. Att’y
GOVERNO R
H EALTH

) A UTHORIT Y TO A PPROVE A GREEMENT W ITH W ORLD H EALTH O RGANIZ

ATION

February 6, 1996

The Honorable Timothy R. Ferguson Maryla nd S enate
You have request ed our opini on whether the Governor had the autho rityto approve a memor andum of underst anding (t he “Memorandum”) be t we ent he Wor l d H ea l t h O r gani zat i on( “WH O” ) and the M aryland D epartm ent of Health and Mental Hygiene (“DH MH ”). Our opinion i s that the Governoracted with in his auth ority.

I Background
The Wo rld H ealth O rgan ization wa s estab lished in 1948 as one of the speci aliz ed agencies of the Unit ed Nations. Pursuant to a joint resol utionof Congress, Preside nt Truman accept ed mem bersh ip on beha lf of the Un ite d St ates

. See 80 Opinions of the Attorney General48 (199 5).
The Memorandum w as execut ed on behalf of t he State by Governor Glendening and on behalf of DHM H by the Secretaryof that Dep artment, D r. Martin P. W asserman . Itwas executed on beha lf of WHO by Dr. Michel Jancl oes, a se ni orof fi ci al of WHO. In 80 Opinions of

the Attorney General

48, we conclude d th at the State’s exe cutionof the Memorandum did not vi olate the feder al Co nstitu tion

. Under the M emo rand um , DH M H w ill particip ate i n select ed pub lic health projec ts in foreign countries. Memorandum ¶¶I. 1 and 2. Projects ma y include the follow ing: health re for m policy development and implementation; health care sy st ems reorganizat ion and decentr aliz ation s trat egies; ec ono mic analyses of health ca reGen. 58] 59
financi ng strategie s and financ ial management protocol s; hu m an resourc e polic y deve lopm ent, plan ning , and m anag eme nt; informat ion mana geme ntsy st ems deve lopm ent; diseas e controland immunizati on strategie s; hospi tal management ; heal th an d so cial dimensions of

po ve rty a llevi ation e fforts ; and enhancement and mobili zati on of healt

h care re source capa city and management of externa l ai d. ¶I . 1 . I f DHMH agrees t o parti cipat e in a projec t, it is to recommend State e mployee s who wish to ser ve voluntaril y as techni cal advis ers on the pro ject fo r a sho rt perio d of tim e. ¶¶ I. 2 and II. 1. Although s uch re co mmen da ti ons ar e s ubj ec t t o WHO approval and the DHM H advisers would work under the dir ecti on of WHO offici als, the adv is ers w ould retain th eir status as Sta te employe es. ¶¶I I. 1a and 2.

II

Go verno r’s Au thority
An analy sis of

the G over nor’s a utho rity in this sit uation be gins with recognition of the broad authority of th e Sec retary of H ealth and M ental Hygiene. Under §2-102(b)( 2) of the Heal th-General (“HG”) Article , Ma ryla nd Cod e, the Secret ary is appoi nted by

the Governor to adm iniste r D HM H. The Secr etary is also d irected to “establishgeneral po licy for, and adopt stand ard s to p romote and guide the devel opment of, t he phys ical and mental hygi ene servi ces of this State and i ts subd iv isi ons.” HG §2-105(a). Further more, under HG §2-105(b) the Secretary has re spon sibility “for th e hea lth interests of the peop le of th is State and shallsupervi se general ly the administ rati on of the health laws of this State a nd its sub div ision s.” See 71 Opinions of

the AttorneyGeneral128 , 131- 32 (1 986 ) (basic hea lth p olicy is set a nd a dm iniste red at the Sta te lev el).
These prov isions s upp lied am ple au thority for th e Sec retary to exec ute the Memorandum. The DHM H employees who willactas advisers for W HO will gain exp eri en ce and knowledge about
numerous health care iss ues p ertinen t to the State a nd its subdivi sions

) for example, disea se c ontrol , immunization, and hospit al management. The knowledge and expe rience thus acquire d
can be applie d by the employees t o their primary State duties. Thus, the M emo rand um adva nces the he alth inter ests of the pe ople o f this State.60 [81 O p. Att’y

Because the Secre tary had aut horit y t o execute t

he Memor andum, so did the Governor. Under the Co nst i tuti on, the “executi ve power of the State” is vested in the G overno r. Article II, §1. This provi sion i s elabor ated by stat ute: “ The Governor is t he head of the Execut ive Branch of t he State government and, except as otherwis e provided

by law, shallsupervise and direc t offi cers and units in th at B ran ch.” §3-3 02 o f the S tate Gov ernmen t Article. Mo re sp ec ifi ca lly, und er H G § 2-10 2(b) th e Sec reta ry “serves at the pleasure of the Go vern or an d is resp onsib le direc tlyto the Go vernor. The Secretaryshalladvise t he Gov er nor o n all m atters ass igned to th e D epartmen t and is respon sible for carrying out the G overno r’s pol icies on t hes e m atter s.”
The Gov ernor’s au thority to ex ercise p erson ally autho rity grantedby law to subo rdinates w as confirm ed by the Co urt o f Ap peals in Maryland Classi fied Employees Ass’n, Inc. v. Schaefer , 325 M d. 19 , 599 A.2 d 91 (19 91) , cert. denied , 112 S. Ct. 1160 (1992). In that

case, t he Court hel d that t

he Governor had the autho rityto is sue an executi ve orderdecreei ng the work week to be 40 h ours in lieu of

the pri or 35-1⁄2 hours. 325 Md. at 28. Rejecti ng the union’ s argument t

hat the execut ive order

violat ed the doctrine of separation of powers, the Court wrote as follows:

[T]he Governor was “speci fical ly authori zed, throughthe le gisl ative gran t of au thority to the Secretary of P erson nel, to contro l virtually all aspe cts of em ployment includ ing the w ork
w eek for Stat e employ ees in t he Execut iv e branch

... .” [A]s head of the Executive B r anch of government, the Governor was authori zed to direct and supervise the officers of that br anch, i ncludi ng t he Secret ary of Personnel who serves at his pl easure.
Id

. (quoti ng circui t court decisi on). The Cour t also observed t hat “the Governor, as head of the E xecutive B ranch, has b road po wers with respe ct to E xecu tiv e Br anch Stat e employ ees and over t he Secretary of Personnel, who exercise s his po wer subject to the Governor and c arries o ut the G over nor’s p olicies w ith resp ect to personnelmatter s.” 325 Md. at 34.Gen. 58] 61
What the Court s aid of the relations hip between t he Governor and the Secre tary

of Personnelis true here. The Gover nor was “spe cifically auth or ized” t o sign t he Memorandum “through the legis lative grant of authori ty to the Sec retar

y” t o establ ish he alt h policy and promote heal th ser

vices. Stated di fferent ly , the autho rity vestedin th e Se cretary en com passe d resp onsib ility for the he alth inter est of

the peopl e of the St ate; and, becaus e the Secretaryis the Gov ernor’s appo intee, is subject to his direction, and carri es out h is po licies, the G over nor w as fre e to ac t upo n that re spon sibility per son ally.

III
Conclusion
In sum mary, it is ou r opin io n that t he G over nor p rope rly exerci sed authority under curre ntla w when he approved a memorandum of underst and ing with t he World Health Organi zati on.

J. Joseph C urran, Jr. AttorneyGeneral
Kim berly Smith W ard Assist ant Attorney General
Jack Sch wa rtz Chief Counsel Opinions and Advic e