Julie Mussog is a candidate for alderwoman in Ward 8 of the City of Annapolis, and also presently serves as the Chief Executive Officer of the Anne Arundel County Economic Development Corporation.
When she accepted her position, she said “I am excited to take on this new role in the Schuh Administration. I look forward to working with the County Executive and the private sector as we continue to make Anne Arundel County a place where businesses can flourish.”
Article 35 of the Maryland Declaration of Rights provides, in relevant part, that “[n]o person shall hold, at the same time, more than one office of profit, created by the Constitution or Laws of this State. . .”
The question arises as to whether Ms. Mussog’s position as the CEO of the Economic Development Corporation is in conflict with this provision.
Economic Development Corporations are generally considered quasi-governmental agencies. State and local governments often face handicaps in terms of the borrowing or lending they were allowed to do under the law, so economic development corporations were created. They have access to public money and distribute it for public purposes.
The Office of Law of Anne Arundel County is apparently of the opinion that since the Economic Development Corporation is an “independent corporation”, this question is not of concern. But the head of AAEDCO is directly appointed by the County Executive, not elected by a Board. Further, AAEDCO has only one goal: the furtherance of business interests in Anne Arundel County. AAEDCO’s only function is to help other businesses in the County, and its charter devotes it to serve the interests of the people.
While that goal is laudable, it becomes difficult to distinguish how it is actually an independent corporation other than as a legal fiction. AAEDCO has its offices at 2660 Riva Road, in the same office building that serves the rest of the County offices. Unlike other “private entities”, it calls upon the County Office of Law for legal advisory opinions. Were AAEDCO truly independent, the giving of such advice might often appear problematic.
The Courts have dealt with similar questions before. In Hetrich v. County Commissioners, the Maryland Court of Appeals instructs: “the ultimate test was succinctly stated in this fashion: ‘This Court has stated that a position is a `public office’ where it has been created by law and casts upon the incumbent duties which are continuing in their nature and not occasional and call for the exercise of some portion of the sovereignty of the State.’”
While the factors of taking an oath and giving bond have been deemed important, they are not indispensable. The Court of Appeals later held, in Howard County Metropolitan Commission v. Westphal, that “[a]lthough it is a fact that none of the members received a commission, gave an official bond or took an oath of office, it is apparent, from a reading of the statute, that the duties conferred by law on the members of the Commission call for the exercise of a large portion of the sovereign power of government with respect to water, sewerage and drainage for the benefit of the people of Howard County.”
The County Office of Law is apparently of the opinion that the Economic Development Corporation does not exercise any governmental power such that Ms. Mussog’s holding of her present position as CEO would be in conflict with her taking a position on the Annapolis City Council, even though AAEDCO is a quasi-governmental entity.
However, for the County to disclaim any exercise of sovereign or governmental power by the Economic Development Corporation might subject the corporation or its officers to unlimited liability and even to bankruptcy for any torts that might be committed in the future. One must wonder whether the County Office of Law would be of a similar opinion if AAEDCO were facing a multi-million dollar lawsuit.
This is not a “slam dunk” case for either side. The judges on the appellate courts would doubtless spend far more time researching and considering the matter. But it would be naïve to pretend that these dual roles are a “non-issue” or that they can be brushed away.
The law exists for good reason. How will Ms. Mussog vote if she is faced with a situation that pits the interests of Ward 8 against the interests of Anne Arundel County as a whole? How will she vote when her boss at her six-figure full-time job wants something for the County, but the voters of Ward 8, who pay her $15,000 per year, want something else?
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