58 [81 Op. Att’y

GOVERNOR

HEALTH ) AUTHORITY TO APPROVE AGREEMENT WITH WORLD

HEALTH ORGANIZATION

February 6, 1996

The Honorable Timothy R. Ferguson 

Maryland Senate

You have requested our opinion whether the Governor had the

authority to approve a memorandum of understanding (the

“Memorandum”) between the World Health Organization (“WHO”)

and the Maryland Department of Health and Mental Hygiene

(“DHMH”). Our opinion is that the Governor acted within his

authority. 

I

Background

The World Health Organization was established in 1948 as one

of the specialized agencies of the United Nations. Pursuant to a joint

resolution of Congress, President Truman accepted membership on

behalf of the United States. See 80 Opinions of the Attorney

General 48 (1995).

The Memorandum was executed on behalf of the State by

Governor Glendening and on behalf of DHMH by the Secretary of

that Department, Dr. Martin P. Wasserman. It was executed on

behalf of WHO by Dr. Michel Jancloes, a senior official of WHO.

In 80 Opinions of the Attorney General 48, we concluded that the

State’s execution of the Memorandum did not violate the federal

Constitution. 

Under the Memorandum, DHMH will participate in selected

public health projects in foreign countries. Memorandum ¶¶I. 1 and

2. Projects may include the following: health reform policy

development and implementation; health care systemsreorganization

and decentralization strategies; economic analyses of health care
Gen. 58] 59

financing strategies and financial management protocols; human

resource policy development, planning, and management;

information management systems development; disease control and

immunization strategies; hospital management; health and social

dimensions of poverty alleviation efforts; and enhancement and

mobilization of health care resource capacity and management of

external aid. ¶I. 1. If DHMH agrees to participate in a project, it is

to recommend State employees who wish to serve voluntarily as

technical advisers on the project for a short period of time. ¶¶I. 2

and II. 1. Although such recommendations are subject to WHO

approval and the DHMH advisers would work under the direction of

WHO officials, the advisers would retain their status as State

employees. ¶¶II. 1a and 2.

II

Governor’s Authority

An analysis of the Governor’s authority in this situation begins

with recognition of the broad authority of the Secretary of Health

and Mental Hygiene. Under §2-102(b)(2) of the Health-General

(“HG”) Article, Maryland Code, the Secretary is appointed by the

Governor to administer DHMH. The Secretary is also directed to

“establish general policy for, and adopt standards to promote and

guide the development of, the physical and mental hygiene services

of this State and its subdivisions.” HG §2-105(a). Furthermore,

under HG §2-105(b) the Secretary has responsibility “for the health

interests of the people of this State and shall supervise generally the

administration of the health laws of this State and its subdivisions.”

See 71 Opinions of the Attorney General 128, 131-32 (1986) (basic

health policy is set and administered at the State level). 

These provisions supplied ample authority for the Secretary to

execute the Memorandum. The DHMH employees who will act as

advisers for WHO will gain experience and knowledge about

numerous health care issues pertinent to the State and its

subdivisions ) for example, disease control, immunization, and

hospital management. The knowledge and experience thus acquired

can be applied by the employees to their primary State duties. Thus,

the Memorandum advances the health interests of the people of this

State.
60 [81 Op. Att’y

Because the Secretary had authority to execute the

Memorandum, so did the Governor. Under the Constitution, the

“executive power of the State” is vested in the Governor. Article II,

§1. This provision is elaborated by statute: “The Governor is the

head of the Executive Branch of the State government and, except

as otherwise provided by law, shall supervise and direct officers and

units in that Branch.” §3-302 of the State Government Article. More

specifically, under HG §2-102(b) the Secretary “serves at the

pleasure of the Governor and is responsible directly to the Governor.

The Secretary shall advise the Governor on all matters assigned to

the Department and is responsible for carrying out the Governor’s

policies on these matters.”

The Governor’s authority to exercise personally authority

granted by law to subordinates was confirmed by the Court of

Appeals in Maryland Classified Employees Ass’n, Inc. v. Schaefer,

325 Md. 19, 599 A.2d 91 (1991), cert. denied, 112 S. Ct. 1160

(1992). In that case, the Court held that the Governor had the

authority to issue an executive order decreeing the work week to be

40 hours in lieu of the prior 35-1⁄2 hours. 325 Md. at 28. Rejecting

the union’s argument that the executive order violated the doctrine

of separation of powers, the Court wrote as follows:

[T]he Governor was “specifically authorized,

through the legislative grant of authority to the

Secretary of Personnel, to control virtually all

aspects of employment including the work

week for State employees in the Executive

branch ....” [A]s head of the Executive

Branch of government, the Governor was

authorized to direct and supervise the officers

of that branch, including the Secretary of

Personnel who serves at his pleasure.

Id. (quoting circuit court decision). The Court also observed that

“the Governor, as head of the Executive Branch, has broad powers

with respect to Executive Branch State employees and over the

Secretary of Personnel, who exercises his power subject to the

Governor and carries out the Governor’s policies with respect to

personnel matters.” 325 Md. at 34.
Gen. 58] 61

What the Court said of the relationship between the Governor

and the Secretary of Personnel is true here. The Governor was

“specifically authorized” to sign the Memorandum “through the

legislative grant of authority to the Secretary” to establish health

policy and promote health services. Stated differently, the authority

vested in the Secretary encompassed responsibility for the health

interest of the people of the State; and, because the Secretary is the

Governor’s appointee, is subject to his direction, and carries out his

policies, the Governor was free to act upon that responsibility

personally. 

III

Conclusion

In summary, it is our opinion that the Governor properly

exercised authority under current law when he approved a

memorandum of understanding with the World Health Organization.

J. Joseph Curran, Jr.

Attorney General

Kimberly Smith Ward

Assistant Attorney General

Jack Schwartz

Chief Counsel

 Opinions and Advice