Opinions, Advice and Legislation Quarterly News
April-June 1999

Opinions

  1. Alcoholic Beverages
  2. Courts and Judges
  3. Motor Vehicle Administration

Advice Letters

  1. Adoption Leave
  2. Budget Bill
  3. Collective Bargaining Agency Fee
  4. COMAR
  5. Condominiums, Cooperatives and Homes Owners Associations
  6. Legal Services Corporation
  7. Public Schools
  8. Retirement Systems
  9. State Contract Liability
  10. Volunteer Physician Liability

Alcoholic Beverages

Question:1. The State alcoholic beverage law prohibits persons associated with wholesalers and manufacturers from having a financial interest in a retail establishment. Does the term "financial interest" include: an ownership or stock interest; a loan to, or other credit relationship; a guarantee of a loan or other security; employment?
2. May a spouse of a person associated with a manufacturer or wholesaler have a financial interest in a retail licensee?

Answer:1. The term "financial interest" in the State alcoholic beverage law includes an ownership interest in, or employment with, a retail licensee. The alcoholic beverage law also bars a manufacturer or wholesaler from providing a loan or loan guarantee for the benefit of a retailer outside of the ordinary course of business regardless of whether it would be considered a financial interest.
2. Whether a spouse of a person connected with a manufacturer or wholesaler may have a financial interest in a retail licensee depends on the nature of the spouse's interest and extent to which the spouses maintain separate finances.

Opinion No. 99-008
April 9, 1999

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Courts & Judges

Question: Must a State's Attorney who is appointed by a judge to prosecute a contempt proceeding obtain the approval of the judge before dismissing, or entering a nolle prosequi of, the contempt charge?

Answer:A State's Attorney designated to prosecute a contempt charge initiated by a judge retains the usual prosecutorial discretion to dismiss, or enter a nolle prosequi of, a criminal charge without special court approval.

Opinion No. 99-009
May 24, 1999

Question:Does the federal Uniform Services Employment and Reemployment Rights Act ("USERRA") preempt a ruling by the State Judicial Ethics Committee that a State circuit court judge may not serve as a Staff Judge Advocate or military judge in the Maryland Army National Guard because he would be practicing law in violation of Canon 4 of the Code of Judicial Conduct?

Answer:USERRA does not displace the historic power of the State to regulate judicial conduct.

Opinion No. 99-010
June 1, 1999

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Motor Vehicle Administration

Question: Under recent legislation, may the MVA modify a suspension of a driver's license or issue a restrictive license for an individual who participates in the MVA Ignition Interlock System Program for at least one year, even if the individual refused a breath test?

Answer:Yes.

Opinion No. 99-011
June 16, 1999

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Adoption Leave

Question: What does HB 1204 (Chapter 503, Laws of Maryland 1999) require an employer to do?

Answer: The statute requires employers to grant to an employee who adopts a child the same paid leave, regardless of label, that is granted to an employee following the birth of a child.

Letter to Hon. Mark K. Shriver
April 16, 1999

Question: If an employer provides disability insurance to its employees to pay for leave taken following the birth of a child, must the employer provide a similar benefit for an employee who adopts a child?

Answer: To the extent that the bill includes such a requirement, it is preempted by ERISA.

Letter to Hon. Mark K. Shriver
June 18, 1999

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Budget Bill

Question: May the Governor veto a capital appropriation in the Budget Bill?

Answer:Because the Budget Bill becomes law when passed by the General Assembly without action by the Governor, the Governor cannot veto the bill or any appropriation in the bill.

Letter to Hon. Martin G. Madden
April 19, 1999

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Collective Bargaining Agency Fee

Question: Does the Governor have the authority to issue an executive order requiring State employees to pay an agency fee to the exclusive bargaining representative of their unit?

Answer:Statutory authority is needed to authorize an agency fee; an attempt to impose such a requirement by an executive order would be inconsistent with law.

Letter to Hon. Nancy Jacobs
May 7, 1999
(attaching letter to Hon. Howard P. Rawlings
May 17, 1999)

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COMAR

Question: Is legislation that requires the Division of State Documents to make available to the public, at no cost, direct on-line searching of the Code of Maryland Regulations, the Maryland Register and any other material that the Division determines to be in the public interest, constitutional and legally sufficient? In particular, does it act as an impairment of contract in light of the Division's current licensing agreements with two entities?

Answer:A provision of the legislation that imposes a fine for commercial use of the on-line material is subject to preemption under the federal Copyright Act; however, that provision is severable. The legislation is not an unconstitutional impairment of contract.

Letter to Hon. Parris N. Glendening
Bill Review Letter
May 20, 1999

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Condominiums, Cooperatives and Home Owners Associations

Question: Are homeowners associations immune from liability with respect to the dissemination of information related to convicted sexual offenders under the Maryland version of Megan's law?

Answer:While the statute provides immunity from liability for certain public officials who disseminate such information, there is no special immunity for homeowners associations.

Letter to Hon. Darrin M. Swain
April 16, 1999

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Legal Services Corporation

Question: May a grantee of the Maryland Legal Services Corporation use grant funds to lobby for an increase in legal services funding?

Answer:No.

Letter to Susan Erlichman
May 10, 1999

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Public Schools

Questions: Is the current composition of the New Baltimore City Board of School Commissioners in compliance with State law? In particular, does it have the requisite number of members with the management qualifications required by law?

Answer: Yes.

Letter to Hon. Howard P. Rawlings
April 27, 1999

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Retirement System

Question: Can a former legislator who later served as Commissioner of Financial Regulation transfer 28 years of legislative service to the Employees Retirement System?

Answer: Only the years of legislative service for which contributions were made are transferable to the Employees Retirement System.

Letter to Hon. Henry Hergenroeder
June 14, 1999

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State Contract Liability

Question: Does the disclaimer of warranties language contained in the online version of the Maryland Contract Weekly provide protection from liability in case of system failure?

Answer: The current warranty disclaimer language provides adequate protection for the State, the Division of State Documents, and its personnel.

Letter to Robert J. Colborn
April 27, 1999

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Volunteer Physician Liability

Question: Can a physician who provides services voluntarily and without compensation to a person seeking services at a charitable organization be held liable for damages in a case alleging medical malpractice?

Answer: A volunteer health care provider who works without compensation has statutory immunity from damages based on mere negligence but could be liable if willful or wanton misconduct, gross negligence, or intentional tortious conduct is shown. The provider need not have insurance to have the benefit of statutory immunity.

Letter to Hon. Donald F. Munson
April 14, 1999

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If you would like a copy of any item in this newsletter, please call Deborah Spence at 410-576-6327
Or e-mail opinions@oag.state.md.us.
Maryland Attorney General's Office
Issue Date 1999.