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DELEGATE GALLAGHER: Chairman
Morgan, I believe I heard you say in reply
to an earlier question that the governor
might under some circumstances be free to
disregard the advice or opinion of the at-
torney general.
I had always been under the impression
that the opinions of the attorney general
were binding upon state officers.
To what extent would you agree or dis-
agree with this?
DELEGATE MORGAN: I think if the
governor were to ask the attorney general
for informal advice, the governor could dis-
regard the advice if he wants to.
THE CHAIRMAN: Delegate Gallagher.
DELEGATE GALLAGHER: Do you dis-
tinguish between advice of a strictly legal
nature given by the attorney general and
advice with respect to perhaps a matter of
policy or personal preference that may
have legal overtones to it?
THE CHAIRMAN: Delegate Morgan.
DELEGATE MORGAN: If -the governor
asked for a formal opinion from the at-
torney general on a policy question?
THE CHAIRMAN: Delegate Gallagher.
DELEGATE GALLAGHER: No, I would
not try to do that. I am trying to distin-
guish.
Let me ask you this: Do yon believe that
the attorney general, under the powers
which the Committee seeks to give him
here, actually has a policy-making role?
THE CHAIRMAN: Delegate Morgan.
DELEGATE MORGAN: It is the Com-
mittee's view the attorney general should
have a strictly legal role and not a policy-
making role.
THE CHAIRMAN: Delegate Gallagher.
DELEGATE GALLAGHER: May I ask
you this question: Would it be possible
under what we have thus far approved in
the Convention for the governor or the
General Assembly to create the department
of law as a principal department of the
State?
THE CHAIRMAN: Delegate Morgan.
DELEGATE MORGAN: No, because un-
der our executive article the head of a
principal department is appointed by the
governor with the advise and consent of
the Senate.
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THE CHAIRMAN: That would be a prin-
cipal department of the executive branch.
1 think Delegate Gallagher said of the
State — did you mean of the executive
branch, Mr. Gallagher?
DELEGATE GALLAGHER: That was the
next question. Would it not be possible for
the governor or the General Assembly to
create an executive department known as
the department of law, and vest in the
governor the power to appoint the head of
that department so that we might have in
effect two legal officers of the State, one an
attorney general, and the other the head of
the department of law?
THE CHAIRMAN: Delegate Morgan.
DELEGATE MORGAN: I suppose it
would be possible, but I do not know exactly
what functions the department of law would
have.
THE CHAIRMAN: Delegate Gallagher,
the Chair believes the premise for your
question is not only incorrect, but is con-
trary to the statements made on the floor
of the Committee of the Whole at the time
that the Committee report with respect to
the office of attorney general was con-
sidered.
It is the Chair's distinct recollection that
during that debate Delegate Henderson
stated that in Maryland, at least, the opin-
ions of the attorney general, although en-
titled to great weight, were not regarded
as binding on any officer of the State.
So that there will be no confusion on the
record, Delegate Henderson, could you ad-
vise what the situation is on that?
DELEGATE HENDERSON: 1 gave it as
my opinion based on a good many years'
experience, that no official is bound by the
opinion of the attorney general, and I have
known of his decisions which have been
disregarded. Of course, the official that does
that does it at his peril, so to speak, and I
do not believe it has been a frequent hap-
pening.
There is a provision in the Code — or used
to be — which made it an offense, a mis-
demeanor, I believe, for any state official to
employ anyone other than the attorney gen-
eral. That was there for some years which
was another, you might say, roadblock to
disregarding the attorney general's opinion,
but I think it has always been recognized
that his opinion is not absolutely binding.
In other words, it does not have the force
of law, it is merely a legal opinion, which
of course the client can disregard.
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