Choice between 2 jobs looms Riley holds posts in two towns

September 17, 1993|By Katherine Richards | Katherine Richards,Staff Writer

Hampstead Town Manager John A. Riley, who is also a town councilman in Manchester, may be forced to choose between the two posts, the Maryland attorney general's office said Wednesday.

Holding both positions simultaneously violates Article 35 of the Maryland Declaration of Rights, Assistant Attorney General Robert A. Zarnoch wrote in an advisory opinion to state Sen. Idamae Garrott, D-Montgomery.

The opinion could mean that Mr. Riley will have to resign one of the two jobs.

"It looks like he's going to have to make a choice," Hampstead Mayor Clint Becker said yesterday. "I would sincerely hope that his choice is to remain on as manager for the town of Hampstead."

No allegations of wrongdoing have been made against Mr. Riley, Mr. Zarnoch said yesterday.

Article 35 of the Maryland Declaration of Rights says no person can hold two "offices of profit" simultaneously.

In his nonbinding advisory letter to Senator Garrott, Mr. Zarnoch said he thought both of Mr. Riley's positions were offices of profit.

An office of profit is a paid, public office.

Not all public jobs are "offices," Mr. Zarnoch said. The criteria for deciding whether a municipal job is an "office" include whether the person takes an oath of office, serves a set term, posts a bond and has significant duties.

The position of Manchester council member is "clearly" a public office, Mr. Zarnoch wrote.

He said he believes the Hampstead town manager position is also an office of profit. He said the town manager is paid, takes an oath of office, serves a set term and posts a bond. Also, he said, the job includes duties "of such magnitude and necessarily so discretion-laden that the manager must be deemed to exercise governmental sovereignty."

In addition, Mr. Zarnoch said, "the [town] charter calls him an officer."

"These kind of issues pop up all the time," Mr. Zarnoch said, and his office has handled "hundreds" of questions about whether a government official holding two positions has violated Article 35.

Mr. Riley said yesterday that he had turned the matter over to his attorney and would await legal advice before deciding what to do.

He said he could retire from his Hampstead position but that he is "not ready to retire . . . too many things going on."

Hampstead Town Attorney Charles O. Fisher Sr. said yesterday that Mr. Riley "can go to court and question the opinion of the attorney general."

"I assume the town will be seeking our lawyer's advice on exactly how to handle this," said Manchester Mayor Earl A. J. "Tim" Warehime Jr.

He said the matter might be taken up by the Manchester ethics commission.

The three-member commission was appointed by Mr. Warehime Tuesday night in a contentious Town Council meeting. During the meeting, the council passed a charter amendment that would reduce the mayor's power by giving the Town Council the ability to fire the town manager.

Cases involving officials holding two offices of profit do not typically reach the courts, Mr. Zarnoch said.

He said officials found to be holding two offices of profit simultaneously usually resign one of them.

If an official continued to hold two offices of profit, Mr. Zarnoch said, "a taxpayer could sue over this."

Manchester Town Manager Terry L. Short said, "My only concern is how this might affect past actions in the two towns."

"He may not have to resign," Mr. Warehime said. "This may mean that he is not a council person" now.

However, Mr. Zarnoch said that even if Mr. Riley must give up one of his two official roles, official decisions he has made will remain valid.

He said a legal rule called the "de facto officer doctrine" says that, for the public good, decisions made in good faith by a person recognized as a government official remain valid even if it is discovered later that the person had held two positions of profit.

"Now that the issue has come to light," Mr. Zarnoch said, it could be used to challenge future decisions made by Mr. Riley if he continues to hold two offices of profit.

It is not clear how Senator Garrott became involved. She could not be reached yesterday for comment.

Manchester Councilman Douglas Myers said last night that he ** believes someone was out to get Councilman Riley. "Somebody's like a snake in the grass," he said.

"I wouldn't want to have to think of the town of Hampstead without him [Mr. Riley]," Mr. Becker said.

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