By Adam Pagnucco.
As I have previously reported, County Executive Marc Elrich has announced his intention to nominate outgoing Council Member Gabe Albornoz as the next director of recreation. But there is an issue confronting his nomination that required a bit of investigation:
The charter establishes the structure of Montgomery County government and is the foundation of county law. The current charter was approved by voters in the 1968 general election. It can only be amended by votes of county residents, a process that has occurred many times over the years. While the charter can be preempted by federal and state law, it cannot be contradicted by county law or other actions by county officials.
There are two sections of the charter relevant to Albornoz’s appointment.
Sec. 102. (Composition and Election) states:
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No member of the Council shall be eligible for appointment during the member’s term of office to any other office or position carrying compensation created by or under this Charter, except to County Executive in the event of a vacancy.
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What is a member’s term of office? Sec. 105 (Term of Office) defines it this way:
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Members of the Council shall hold office for a term beginning at noon on the first Monday of December next following the regular election for the Council and ending at noon on the first Monday of December in the fourth year thereafter. In no case shall a Councilmember be permitted to serve more than three consecutive terms. Any member of Council who will have served three or more consecutive terms at noon on the first Monday of December 2018 shall be prohibited from commencing to serve a successive term of office at that time. For purposes of this Section, service of a term includes complete service of a full term and partial service of a full term. Partial service of a full term means service by a Councilmember of more than two years of a term.
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Albornoz was most recently elected in 2022 and assumed office on the first Monday of December in that year. If his term of office ends at noon on the first Monday of December 2026, then he would be ineligible to hold “any other office or position carrying compensation created by or under this Charter” until then.
This issue did not arise during the last two times that a council member resigned. In 2013, District 5 Council Member Valerie Ervin resigned to take a position in the private sector. In 2002, District 5 Council Member Derick Berlage resigned to become chair of the Planning Board. That board is created by state law, not the charter, so Berlage’s appointment was unaffected by the language above.
I asked the executive branch and the council about whether the above language prohibits Albornoz from being named recreation director. Here is the response I received from Scott Peterson, who is the spokesman for the county executive.
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The official nomination packet that begins the confirmation process of Gabe Albornoz for director of the Department of Recreation is not being sent over by the Office of County Executive to the County Council until after the Councilmember steps down from his position. Therefore, and in accordance with all Charter requirements, Gabe Albornoz is not officially nominated until that paperwork is sent over to the County Council.
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So according to the administration, Albornoz won’t be nominated until he resigns.
Here is what Christine Wellons, the council’s Chief Legislative Attorney, told me.
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Thank you for your question about how various Charter provisions would apply to a Councilmember’s planned resignation and potential appointment to another County position. When a Councilmember resigns, their term of service ends immediately. They no longer have the powers or duties of office that they had during their term, and the restriction under Charter Section 102 regarding appointments to other positions no longer applies.
As you noted, a Councilmember — during their term of office — is not eligible for appointment to another compensated County position (except for the position of County Executive if the Executive position is vacant). (Sec. 102). Notably, this restriction against appointments applies only during the member’s term of office, not after their term ends — whether due to resignation or another cause.
Note that Charter Section 105 establishes a general 4-year term for the office of all Councilmembers, but it does not preclude a member from ending their individual term early; indeed, Section 105 contemplates that partial service of terms of office will sometimes occur. When a member resigns early after serving a partial term, a vacancy has occurred and will be filled under the provisions of Charter Section 106.
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Accordingly, the council’s position is that a term ends when a council member resigns. It’s noteworthy that that language does not explicitly appear in Sec. 105 of the charter. Maybe it should.
That said, I can understand the county’s stance. The prohibition against sitting council members from holding additional paid jobs in county government (as well as state and municipal positions) is designed to prevent conflicts. Without it, nothing would stop a county executive from nominating favored council members to paid jobs in order to curry favor. In this case, Elrich gains little by appointing Albornoz because, with his leaving the council, he has little to give the executive in return other than his best performance in the recreation job. That’s what any nominee would owe the executive and residents of the county as well.
A bigger problem than the charter language was identified in a Bethesda Today article published yesterday revealing that the council intends to keep part of the appointment process for Albornoz’s successor secret. In my brief history of the last council appointment (during which I worked at the council), I don’t recall our doing that. We received 18 applications for the vacancy created by Ervin’s resignation and interviewed 14 applicants in public. County residents had a large window to view the choices available to the council to fill the seat. If today’s council uses its partially secret process to screen out most applicants and winds up interviewing a tiny number – or perhaps even just one – applicant in public, it will create distrust among constituents. And with elections, big budget votes, potentially controversial land use issues and perhaps even taxes on the table next year, the council should beware of incurring the suspicion of voters.