Will Article 35 come into play in Ward 8 election?

| November 1, 2017
Rams Head

Julie Mussog
Candidate, Ward 8 Alderperson

With the Annapolis City Election less than a week away, it seems like all the candidates are pulling out all the stops to convince voters why they should for for them.  Along with these pleadings, there are often uninformed opinions and outright fabrications that surface. Over the next few days, we will look at some of them and try to get to the bottom of the issue. If you have a burning question–feel free to email us and we will see what we can do.

First up; Ward 8. Several people have suggested on the Eastport Neighborhood Forum (Facebook Page) that candidate Julie Mussog is not qualified to run because of Article 35 of the Maryland Declaration of Rights which reads:

Art. 35. That no person shall hold, at the same time, more than one office of profit, created by the Constitution or Laws of this State; nor shall any person in public trust receive any present from any foreign Prince or State, or from the United States, or any of them, without the approbation of this State. The position of Notary Public shall not be considered an office of profit within the meaning of this Article. Nonelected membership in the militia of this State, a law enforcement agency, a fire department or agency, or a rescue squad shall not be considered an office of profit within the meaning of this Article; nor shall any remuneration received as a consequence of membership in a reserve component of the armed forces of the United States or of membership in the militia of the United States or of this State be considered a present within the meaning of this Article (amended by Chapter 129, Acts of 1964, ratified Nov. 3, 1964; Chapter 61, Acts of 1990, ratified Nov. 6, 1990; Chapter 80, Acts of 1996, ratified Nov. 5, 1996).

Gavin Buckley - Democrat for Mayor

Mussog is currently the Director (CEO) of the Anne Arundel Economic Development Corporation. The AAEDC is a private organization that receives some funding from Anne Arundel County and it’s CEO is appointed by the County Executive, Steve Schuh.

Obviously, being an employee of the County is not an issue–Rob Savidge is employed by the County, Rhonda Pindell-Charles is employed by the Anne Arundel County Public Schools, Alderman Fred Paone was employed part-time by the State’s Attorney’s Office, and our own Speaker Busch is employed by the County. But the AAEDC is not a county agency; does the fact that the County Executive appointed Mussog to the AAEDC trigger Article 35?

Here is the opinion from Nancy Duden, County Attorney for Anne Arundel County.

In short, my answer is no.

The traditional test of what constitutes a public office has evolved over the years and Maryland case law now makes it clear that the most significant test is one which calls for the exercise of some portion of the sovereign power of the State, and, if the position has a definite term, for which a commission is issued, a bond required and an oath required. Duncan v. Koustenis, 260 Md. 98, 105 (1970).

All sovereign power of the State is held by the County Executive and his departments. AAEDC is not a department of the County; rather, AAEDC is an independent corporation and non-profit. While some of AAEDC’s funding comes through grants from the County, they operate entirely as independent body. There is no sovereign power, nor can the AAEDC claim sovereign immunity if sued in tort. I did a check for the past several years and my office has not defended AAEDC in a lawsuit and AAEDC has not claimed sovereign immunity.

Article 35 of the Maryland Declaration of Rights states 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.” In other words, you cannot hold two public offices at the same time. Therefore, the test depends on whether the offices are “public.” Simply being an employee of a government does not make the position a “public office” and simply being appointed by the County Executive also does not make the position a “public office.”

The Director works for an independent corporation which only receives partial funding from AACo, the Director takes no oath, is not required to post a bond, and exercises no sovereign power of the County, therefore, it is my opinion that the position of Director of the Anne Arundel Economic Development Corporation is not a “public office” within the meaning of Article 35.

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