Opinions, Advice and Legislation Quarterly News
October-December 1997

Opinions

  1. Charter Home Rule Counties
  2. Counties
  3. Municipalities
  4. Procurement
  5. Public Officers and Employees

Advice

  1. Developmental Disabilities
  2. Environment
  3. Fair Election Practices Act
  4. First Amendment
  5. Gaming
  6. Health Care Insurance
  7. Intellectual Property
  8. Law Enforcement
  9. Maryland Stadium Authority
  10. Voting Rights

Charter Home Rule Counties

Question: May Montgomery County provide in its charter for the use of special elections to fill County Council vacancies, or may these special election procedures only be adopted by the County Council as a local law?
Answer: Charter counties may provide for special elections to fill county council vacancies only if the council so provides through local legislation. Article XI-A does not authorize a charter county to adopt special election procedures for council vacancies by means of a charter amendment.

Opinion No. 97-027
November 13, 1997

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Counties

Questions: 1. Are the clients of the St. Mary's County Attorney the County Commissioners and not the citizens of the county?
2. May written material prepared by the county attorney for a county agency be withheld from public disclosure as privileged?
Answers: 1. The corporate entity that is St. Mary's County is the client of the St. Mary's County Attorney. The county commissioners and other elected and appointed officials and employees of the county are the agents of the client and may be viewed by the county attorney as entitled to speak for the client. Although the county attorney should act with due regard for the public interest, an attorney-client relationship as such does not ordinarily exist between the county attorney and the citizens of the county.
2. Many documents prepared by the county attorney are privileged because of their content and therefore are not disclosable under the Maryland Public Information Act.

Opinion No. 97-028
December 16, 1997

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Municipalities

Questions: 1. May a member of the Board of Aldermen for the City of Frederick who is a decision maker in a quasi-judicial proceeding be required to recuse herself from participating in any discussion, deliberation, and vote on a matter on which member has already publicly stated her opinion?
2. Does the Board of Aldermen have authority to disqualify a member from participating in a quasi- judicial proceeding if a majority of the board concludes that the member has prejudged the matter?
Answers: 1. A member of the Board of Aldermen should not participate as a decision maker in a quasi- judicial proceeding if the member has prejudged the specific matters at issue in the proceeding.
2. The board itself has the authority to disqualify a member for prejudgment.

Opinion No. 97-025
October 2, 1997

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Procurement

Questions: 1. Does a provision in a procurement contract provide for unlimited liability of the contractor? Does unlimited include liability for acts of God, war, natural disasters, etc.?
2. Is the State required by law to provide that its contractors are to have unlimited liability?
3. If there is no such requirement, should the State insist in its contracts on unlimited liability for its contractors?
Answers: 1. The provision in question is best construed as a protection of the State against the potential costs of the contractor's negligence. Within that scope, it is unlimited. The provision does not amount to an insurance policy, however, for the benefit of third parties. The contractor's liability to third parties would be determined by principles of tort law, under which the contractor ordinarily would not be liable for acts of God and similar events.
2. The State is not required by law to provide that its contractors are to protect it from liability, without limitation, potentially arising from the contractors' negligence. Nothing in State law, however, prohibits a provision of this kind in a procurement contract.
3. The extent to which the State should protect itself in a procurement contract against risk associated with a contractor's negligence is a policy question, initially for the procuring agency and ultimately for the Board of Public Works, not a legal question for the Attorney General's Office.

Opinion No. 97-029
December 23, 1997

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Public Officers and Employees

Question: Does the Maryland Constitution prevent a person from serving as both a deputy clerk of the Circuit Court for Washington County and as a member of the General Assembly?
Answer: Simultaneous service in these posts would not violate either the dual office prohibitions in Article 35 of the Declaration of Rights and Article III, §11 of the Constitution or the separation of powers doctrine embodied in Article 8 of the Declaration of Rights.

Opinion No. 97-026
October 7, 1997

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Advice Letters

Developmental Disabilities

Question: Would the Americans With Disabilities Act be violated if the Developmental Disabilities Administration changed a program providing transportation for people with developmental disabilities to communities, so that more funds would be available for services for persons with mobility impairments due to physical disabilities and fewer services available to persons with mobility impairments due to behavior disabilities?
Answer: No.

Del. John A. Hurson
September 12, 1997

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Environment

Question: May a moratorium on increased poultry operations in Maryland be accomplished by regulation, without further legislation?
Answer: The Secretary of Environment has the authority to adopt such a moratorium by regulation. This kind of moratorium would not be an unconstitutional taking of property if it is shown to substantially advance State interests in preserving water quality, protecting the seafood industry, and preserving human health.

Hon. Harry Hughes
December 23, 1997

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Fair Election Practices Act

Question: May a political action committee contribute funds to a non-profit organization for voter education purposes?
Answer: Yes, if these nonelectoral outlays are minimal in comparison to expenditures for directly electoral purposes.

Vincent DeMarco
November 26, 1997

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First Amendment

Question: Is there a constitutional objection to proposed legislation to ban the advertising of casino gambling on Maryland media?
Answer: There is no constitutional objection to a State law prohibiting the advertising of casino gambling.

Del. John R. Leopold
September 4, 1997

Question: Does the free speech guarantee of the First Amendment require the State House Trust to grant the Ku Klux Klan's request to hold a protest rally on the front steps of the State House?
Answer: No.

Edward C. Papenfuse
December 9, 1997

Question: Would a bill violate the First Amendment if it allowed criminal defendants to "opt out" of disclosure of criminal charging documents to those seeking to solicit business for lawyers?
Answer: Although the bill raises a First Amendment issue, it meets the constitutional standard under Central Hudson v. PSC.

Sen. F. Vernon Boozer
December 30, 1997

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Gaming

Questions: 1. Are bingo games sponsored by churches, VFWs, American Legions, and other charitable organizations allowed only on a "non-recurring" or "occasional" basis?
2. Does this requirement apply to ancillary activity at weekly bingo games( (e.g., wheels of fortune, tip jar, paddle wheels, and instant bingo)?
Answers: 1. Bingo is not subject to a requirement that it be occasional and non-recurring.
2. Tip jars and instant bingo may be conducted along with bingo on a regular or recurring basis. Wheels of fortune and paddle wheels are restricted to events such as carnivals, fairs, and bazaars, which are to be conducted on an occasional and non-recurring basis.

Sen. Martin G. Madden
December 10, 1997

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Health Care Insurance

Question: Does Chapter 163 of the Laws of Maryland 1997, which limits the time in which a health insurance carrier may retroactively deny reimbursement to a health care provider, apply to claims that were made or paid prior to the effective date of the act?
Answer: Yes.

Del. John P. Donoghue
November 18, 1997

Question: Does Maryland law currently regulate the time in which third party payors make payments to health care providers?
Answer: Maryland law requires insurers and HMO's to make such payments within thirty days of the claim, unless the claim is subject of a dispute. Claims paid later than the set time must be paid with interest, as set out in the statute.

Senator Timothy R. Ferguson
December 19, 1997

 

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Intellectual Property

Question: Who owns the patents to inventions developed and designed by employees of the Washington Suburban Sanitary Commission (WSSC)?
Answer: Even if the employees could own the patents under the legal rule generally governing employee inventions, they assigned the patents to the WSSC, which is now the owner.

Del. Barbara A. Frush
December 11, 1997

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Law Enforcement

Question: Do local jurisdictions have authority to enter into agreements under which law enforcement officers may enter into other Maryland jurisdictions to serve outstanding warrants?
Answer: This kind of agreement would have to be authorized by statute. Laws currently allowing officers from one jurisdiction to enter another do not authorize entry for the purpose of serving outstanding warrants.

Sen. Michael J. Collins
December 18, 1997

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Maryland Stadium Authority

Questions: 1. Did the Maryland Stadium Authority (MSA) have the statutory authority to sign a contract authorizing the Baltimore Ravens to sell naming rights to the new football stadium?
2. Would the General Assembly violate the Contract Clause if it altered the terms of the MSA's contract with the Ravens?
Answers: 1. Yes.
2. No, a statutory change would not unconstitutionally impair the contract.

Del. Dana Lee Dembrow
November 18, 1997

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Voting Rights

Question: Could the Maryland Constitution be amended so that the Governor would be elected in a manner comparable to the President (i.e., by a county unit rule comparable to the Electoral College)?
Answer: A county unit rule would violate the "one-person, one-vote" requirement of the Equal Protection Clause.

Del. Mary Roe Walkup
November 25, 1997

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To obtain a copy of any item in this newsletter, call Deborah Spence at 410-576-6327
Or e-mail dspence@oag.state.md.us
Maryland Attorney General's Office
Issue Date 1997.