Maryland Attorney General Opinion 107oag196

196 [107 Op. Att’y

BUDGETARY ADMINISTRATION

MANDATORY APPROPRIATIONS FOR THE PUBLIC SCHOOLS –

MARYLAND STADIUM AUTHORITY – ARTICLE XIX OF THE

MARYLAND CONSTITUTION – QUESTIONS ABOUT THE

AUTHORITY OF THE GOVERNOR OR GENERAL ASSEMBLY

TO REDUCE OR REALLOCATE FUNDING FOR THE BUILT TO

LEARN ACT

December 15, 2022

Michael J. Frenz

Executive Director, Maryland Stadium Authority

The Built to Learn Act of 2020 authorized the Maryland

Stadium Authority (the “Authority”) to issue up to $2.2 billion in

bonds and to use the proceeds for public school construction

projects throughout the State. 2020 Md. Laws, ch. 20. To pay the

debt service on those bonds—that is, to pay the interest and repay

the principal—the Act provides for regular transfers from the

Education Trust Fund, a special fund in the State Treasury. The

Education Trust Fund, in turn, is financed by revenues from

commercial gaming in the State, in accordance with the

requirements of Article XIX of the Maryland Constitution. Article

XIX requires that certain gaming revenues may only be used to

supplement funding for public education in six broad areas, but

otherwise does not specify how the money must be allocated.

On behalf of the Authority, you requested our opinion on a

series of questions about the Built to Learn Act’s funding

mechanism. Specifically, you asked: (1) whether the funding for

debt service mandated by the Built to Learn Act can be reduced or

reallocated to another purpose by either the Governor or the

General Assembly; (2) whether the funding for education required

by Article XIX of the Constitution more generally can be reduced

by the Governor or the General Assembly, or can be reallocated to

another purpose; and (3) what funding priority, if any, applies to

the funds in the Education Trust Fund.

As to your first question: Under current law, the Governor

and General Assembly cannot use the annual budget process to

reduce or reallocate the debt service funding that the Built to Learn

Act mandates. That is because a provision of the Act requires that

a certain amount be deposited each year from the Education Trust

Fund into a fund dedicated to debt service on Built to Learn Act

bonds, Md. Code Ann., Econ. Dev. (“EC”) § 10-649(g), and that

provision establishes a mandatory appropriation for public

Gen. 196] 197

education, subject to constitutional protection. The Governor thus

must include the amount that the statute specifies in the budget,

Md. Const., Art. III, § 52(4)(f), (11), (12), and the General

Assembly may not reduce it during the budget process, id. § 52(6).

The Governor also may not reduce that appropriation or transfer

the funds to another program after the budget is passed.

There are, however, some actions that the General Assembly

could take to reduce funding for the Built to Learn Act by changing

current law. For example, nothing would prevent the General

Assembly from repealing or amending EC § 10-649(g) itself via

ordinary legislation and thereby eliminating the constitutionally

protected funding mandate. The General Assembly could also

amend or eliminate § 10-649(g)’s mandate and make the change

effective for only a single fiscal year, as long as it did so through

the ordinary legislative process, such as via a Budget Reconciliation

and Financing Act. The General Assembly also may have some,

though not unlimited, latitude to reduce the flow of funds from

commercial gaming into the Education Trust Fund, by amending

the statute that currently governs how commercial gaming

revenues are distributed at the time they are first received.

As to your second question: Assuming that § 10-649(g)

remains in effect, our answer is the same as our answer to your first

question. The amount specified by the statute must be appropriated,

out of funds raised under Article XIX, for Built to Learn Act debt

service and may not be reallocated to another purpose. If the

General Assembly were to repeal or amend § 10-649(g), however,

nothing in Article XIX standing alone would require that any funds

be appropriated to repay Built to Learn Act bonds. Article XIX, by

itself, does not mandate that funds be appropriated for any specific

educational purpose, but instead gives the Governor and General

Assembly discretion to allocate commercial gaming revenues to a

variety of education-related purposes.

Finally, the General Assembly answered your third question

during its most recent session, by providing that distributions for

Built to Learn Act debt service are the first priority for the use of

money in the Education Trust Fund.

198 [107 Op. Att’y

I

Background

A. Maryland’s Budget System

Article III, § 52 of the Maryland Constitution defines the

powers of the Governor and the General Assembly regarding the

budget, appropriations, and spending of funds from the State

Treasury. Md. Const., Art. III, § 52. Every year, the Governor

must submit to the General Assembly a budget containing “a

complete plan of proposed expenditures and estimated revenues”

for the upcoming fiscal year, id. § 52(3), along with a “budget bill,”

which is introduced as legislation, id. § 52(5). With certain

exceptions, the General Assembly may “strike out or reduce” any

of the appropriations proposed in the Governor’s budget bill. Id.

§ 52(6a).

Maryland’s budget system traces its existence to a

constitutional amendment ratified in 1916. 106 Opinions of the

Attorney General 38, 39 (2021). For that reason, the governing

constitutional provision—Article III, § 52—is often called the

“Budget Amendment.” The amendment aimed to centralize power

over, and accountability for, the State’s spending in the Governor.

Judy v. Schaefer, 331 Md. 239, 245-46 (1993); Bayne v. Secretary

of State, 283 Md. 560, 568 (1978).

But in more recent years, further amendments have increased

the General Assembly’s power over State spending. Originally, the

General Assembly could only add a new Executive Branch

appropriation, or increase an existing one, by passing a separate

“supplementary appropriation bill” funded by a new tax. Md.

Const., Art. III, § 52(6), (8); see also Maryland Action for Foster

Children v. State, 279 Md. 133, 142-43 (1977) (describing the

limited powers of the General Assembly to add new or increase

existing Executive appropriations prior to 1978). In 1978, however,

an amendment authorized the General Assembly to mandate, by

statute, that the Governor include funds in the budget at a specified

level for a specified program, id. § 52(11), (12), though such

mandates cannot take effect in the first fiscal year after their

enactment, id., and once the Governor has added the mandated item

to the budget the General Assembly may still strike or reduce the

amount, 65 Opinions of the Attorney General 45, 49-50 (1980).

Another amendment ratified in 2020, which will govern the budget

starting with Fiscal Year 2024, will allow the General Assembly to

increase or add appropriations for Executive Branch programs in

the budget bill itself, as long as the total for all Executive Branch

Gen. 196] 199

appropriations does not exceed the Governor’s original submission

and the budget as a whole remains balanced. 2020 Md. Laws, ch.

645 (ratified Nov. 3, 2020) (adding Md. Const., Art. III, § 52(6b)).

The Constitution also protects certain categories of spending

from alteration by both the Governor and the General Assembly.

Spending for public education is one of those specially protected

categories. Under the express terms of the Constitution, when the

General Assembly “provide[s] by law” for a certain category of

spending “for the public schools,” the Governor must include that

item in the budget “without revision.” Md. Const., Art. III,

§ 52(11), (12); see also id. § 52(4)(f). The General Assembly, in

turn, “shall not amend the Budget Bill so as to affect . . . the

provisions made by the laws of the State for the establishment and

maintenance of a system of public schools.” Id. § 52(6). But, as

we will explain further below, not every item of public-school

spending receives this constitutional protection. See 60 Opinions

of the Attorney General 197 (1975); 36 Opinions of the Attorney

General 109 (1951).

Even after the budget bill is passed and the fiscal year begins,

the budget is not set in stone. The General Assembly has

empowered the Governor to adjust appropriations for the current

year under certain conditions. See Md. Const., Art. III, § 52(13)

(authorizing the General Assembly to “enact such laws not

inconsistent with [§ 52], as may be necessary and proper to carry

out its provisions”).

First, the Governor, with the consent of the Board of Public

Works, may reduce by up to 25% any appropriation the Governor

“considers unnecessary.” Md. Code Ann., State Fin. & Proc.

(“SFP”) § 7-213; see generally 106 Opinions of the Attorney

General at 42-45. This power extends to most appropriations

mandated by statute. 65 Opinions of the Attorney General at 52-

53. But certain appropriations, including mandatory appropriations

for public schools, are exempt from this budget reduction power.

Id. at 49; SFP § 7-213(b).

Second, the Governor may use a “budget amendment” to

transfer funds from one program to another within a unit of State

government, or, in certain narrow circumstances, from one unit to

another. SFP § 7-209. The Governor can also use a budget

amendment to allocate unanticipated revenues unaccounted for in

the budget. SFP § 7-217.

200 [107 Op. Att’y

B. Article XIX and the Education Trust Fund

Your questions concern funds raised under Article XIX of the

Maryland Constitution. Article XIX originally empowered the

State to issue up to five “video lottery operation licenses,”

authorizing the license holders to operate “video lottery terminals”

(that is, video slot machines) in five specified locations. Md.

Const., Art. XIX, § 1(b)-(c). The General Assembly proposed

Article XIX in 2007 to address the State’s structural budget deficit,

which was driven in large part by the growth in education spending.

See Md. Exec. Order No. 01.01.2007.23 (Oct. 15, 2007)

(convening a special legislative session to address a structural

deficit caused in part by an “important and necessary” increase in

education spending). The Legislature accordingly provided that

the revenue raised from the video lottery operation licenses would

be “for the primary purpose of raising revenue for” public

education. Md. Const., Art. XIX, § 1(c)(1). At the 2008 general

election, the voters ratified the proposed amendment and agreed to

“authoriz[e] video lottery terminals (slot machines) to fund

education.”1

The General Assembly also passed an implementing statute,

contingent on the ratification of Article XIX. Among other details,

that statute specified the distribution of the new revenues. 2007

Md. Laws, Spec. Sess., ch. 4. The formula for dividing up “the

proceeds of video lottery terminals” included shares for the casino

owner; for the State’s administrative costs; for “local impact

grants” to address the impact of the new casinos on their localities;

for the State’s horse-racing industry to enhance prizes and upgrade

racetracks; and for a new fund making grants to small and minority-

and woman-owned businesses. Id. (enacting Md. Code Ann., State

Gov’t (“SG”) § 9-1A-27). The remainder of the slot machine

revenues would go to the new Education Trust Fund. Id. (enacting

SG § 9-1A-30).2 Expenditures from the Fund, which is a special

fund in the Treasury, would be made “in accordance with the State

budget” for educational purposes. Id. (enacting SG § 9-1A-30(d)).3

1

2008 General Election Returns, Question 2, Maryland Manual,

https://msa.maryland.gov/msa/mdmanual/42electg/html/2008/2008const.html.

2

The actual percentage of video slot machine revenues dedicated to

the Education Trust Fund varies by casino under the statutory formula,

ranging from approximately one third to one half of gross revenue. See

SG § 9-1A-27(a)-(c).

3

A special fund consists of State moneys that have been dedicated to

a particular purpose. The budget bill may not appropriate these funds to

Gen. 196] 201

Article XIX also provided that the voters could approve

expansion of commercial gaming in the State by referendum. Md.

Const., Art. XIX, § 1(e). In 2012, the voters narrowly approved a

proposal to authorize a sixth casino in Prince George’s County and

to allow casinos to offer “table games” like roulette, blackjack, and

poker. 2012 Md. Laws, 2d Spec. Sess., ch. 1.4 The casino owner

keeps 80% of the revenue from these table games, and 15% goes

to the Education Trust Fund (with the remaining 5% to local

jurisdictions). SG § 9-1A-27(d).

Prior to 2018, funds in the Education Trust Fund were

generally used to satisfy the State’s then-existing educational

funding formulas, known as the “Bridge to Excellence” formulas,

rather than to increase or supplement the overall level of education

funding. See Revised Fiscal & Policy Note, H.B. 1697, 2018 Leg.,

Reg. Sess. at 4. However, some advocates and legislators believed

that these funds should instead be used to increase total education

spending. See generally Hearing on H.B. 1697 Before the House

Appropriations Comm., 2018 Leg., Reg. Sess. (Mar. 8, 2018). In

response, the General Assembly proposed the so-called “lockbox”

amendment to Article XIX, which was ratified in 2018.5 2018 Md.

Laws, ch. 357; see, e.g., Editorial, Battle of the Lockboxes, Balt.

Sun, Feb. 18, 2018.

The lockbox amendment requires the Governor to include a

specified amount of commercial gaming revenues in each year’s

budget “as supplemental funding for public education.” Md.

Const., Art. XIX, § 1(f)(1) (emphasis added). A use of funds

qualifies as “supplemental” if it is “in addition to the State funding

provided through the funding formulas established in the Bridge to

Excellence in Public Schools Act of 2002 for prekindergarten

any other purpose, see, e.g., 91 Opinions of the Attorney General 24, 29-

30 & n.11 (2006), although the General Assembly may move money out

of a special fund by enacting a statute separate from the budget, see, e.g.,

89 Opinions of the Attorney General 172, 178 (2004). When a particular

revenue source has been dedicated by statute to a special fund, there is

no need to appropriate those moneys into the special fund. See Letter

from Richard E. Israel, Assistant Attorney General, to Sen. Laurence

Levitan, at 2 (Mar. 31, 1988).

4

See also 2012 General Election Returns, Question 7, Maryland Manual,

https://msa.maryland.gov/msa/mdmanual/42electg/html/2012/2012const.ht

ml#referenda.

5

2018 General Election Returns, Question 1, Maryland Manual,

https://msa.maryland.gov/msa/mdmanual/42electg/html/2018/2018cons

t.html.

202 [107 Op. Att’y

through grade 12 in public schools.” Id. § 1(f)(3)(i). Starting in

Fiscal Year 2023, that requirement applies to “100% of revenues

raised for public education under [Art. XIX, § 1(c)(1)]”—that is,

from video slot machines—and 100% of “any other commercial

gaming revenues dedicated to public education.” Id. § 1(f)(1)(iv).

The amendment specifies six permitted uses for this supplemental

education funding, one of which is to “[m]aintain, renovate, or

construct public schools.” Id. § 1(f)(2).

C. The Stadium Authority and the Built to Learn Act

The Maryland Stadium Authority is a “public corporation and

instrumentality of the State” established in 1986. Kelly v.

Marylanders for Sports Sanity, Inc., 310 Md. 437, 439 (1987). The

Built to Learn Act of 2020 charged the Authority with overseeing

a new Statewide school construction program. 2020 Md. Laws, ch.

20. The Act empowered the Authority to issue up to $2.2 billion

in bonds to “financ[e] acquisition, construction, renovation, and

related expenses” for “public school facilities in the State.” Id.

(codified at EC § 10-628(c)(1)(vii)).

The Built to Learn Act bonds are explicitly not a debt or

obligation of the State but are instead “a limited obligation of the

Authority payable solely from money pledged by the Authority”

for debt service on those bonds. EC § 10-649(d). To fund that debt

service, the Act established the Supplemental Public School

Construction Financing Fund (“Financing Fund”). EC § 10-658.

The money in the Financing Fund will be used to pay regular debt

service on the Built to Learn Act bonds, EC § 10-658(c), and is the

only money pledged by the Authority for repayment on those

bonds, see EC § 10-634.

The Built to Learn Act also contains a mechanism to deposit

the funds necessary to pay debt service into the Financing Fund:

“In accordance with § 9-1A-30 of the State Government Article,”

which establishes the Education Trust Fund, “the Comptroller shall

deposit a portion of the money in the Education Trust Fund into the

[Financing Fund]” twice each fiscal year. EC § 10-649(g). The

Act requires that $30 million be deposited from the Education Trust

Fund into the Financing Fund in Fiscal Year 2022, $60 million in

Fiscal Year 2023, and $125 million each year starting with Fiscal

Year 2024. Id. In 2022, the General Assembly enacted legislation

clarifying that the “required deposits under [EC § 10-649(g)]” into

the Financing Fund are the first priority for the use of money in the

Education Trust Fund. 2022 Md. Laws, ch. 32 (codified at SG

§ 9-1A-30(d)(1)).

Gen. 196] 203

II

Analysis

Current law establishes a flow of money to pay debt service

on bonds issued pursuant to the Built to Learn Act. Under SG

§ 9-1A-27, a substantial share of the revenue from commercial

gaming in the State must be deposited in the Education Trust Fund.

SG §§ 9-1A-27, 9-1A-30; see supra note 2 (explaining that the

share varies by casino under a statutory formula, ranging from

approximately one third to one half of gross revenue). Starting with

Fiscal Year 2023, the Governor must include 100% of those

deposits in the budget as “supplemental funding for public

education.” Md. Const., Art. XIX, § 1(f). The Built to Learn Act

specifically requires that a fixed amount of that Education Trust

Fund money be deposited in the Financing Fund to cover debt

service on Built to Learn Act bonds. EC § 10-649.6

Your questions all concern the extent to which the Governor

and General Assembly might alter that flow of money from

commercial gaming to the Education Trust Fund “lockbox,” and

then to the Financing Fund. Answering those questions requires us

to interpret both the Maryland Constitution and the relevant State

statutes. The principles of constitutional and statutory interpretation

are similar: in statutory interpretation, our overall objective is to

determine the intent of the General Assembly, and in constitutional

interpretation, “we seek ‘the construction that effectuates the intent

of [the provision’s] framers.’” E.g., Fish Mkt. Nominee Corp. v.

G.A.A., Inc., 337 Md. 1, 8 (1994) (quoting Brown v. Brown, 287

Md. 273, 277 (1980)). In both types of interpretation, we begin

with the ordinary meaning of the language used, considered in its

context, and we may end our analysis there if the language is

sufficiently clear, though we may consider other sources of

meaning, such as the provision’s history and purpose, especially if

the provision is ambiguous. See id. at 8-9; see also 97 Opinions of

the Attorney General 58, 64 (2012). We also keep in mind that

both statutes and constitutional provisions, especially those written

in broad and general terms, may be interpreted in light of

developments since their enactment. Kindley v. Governor, 289 Md.

620, 625 (1981); 68 Opinions of the Attorney General 48, 57-58

(1983). With those principles in mind, we turn to your questions.

6

The Act contemplates that Prince George’s County will construct or

renovate at least six public schools by entering into a public-private

partnership agreement with a private entity. Md. Code Ann., Educ.

(“ED”) § 4-126.1. The Financing Fund will also be used to fund Prince

George’s County’s obligations under that public-private partnership

agreement. See EC § 10-658(b)(3).

204 [107 Op. Att’y

A. EC § 10-649(g) Deposits into the Financing Fund

Your first question is whether “the funding mandated in [EC]

§ 10-649 can be reduced or re-allocated to another purpose by

either the Governor or the General Assembly.” As we will explain,

the Built to Learn Act’s requirement that “the Comptroller shall

deposit” a specified amount from “the Education Trust Fund into

the Supplemental Public School Construction Financing Fund”

each year, EC § 10-649(g), establishes a mandatory appropriation

for the public schools that is constitutionally protected from the

Governor’s and the General Assembly’s ordinary budget powers.

However, the General Assembly could eliminate that mandatory

appropriation by amending or repealing § 10-649(g) itself. The

Legislature could also potentially amend SG § 9-1A-27, the statute

that dedicates commercial gaming revenues to the Education Trust

Fund in the first place, subject to Article XIX’s requirement that

public school funding shall be “the primary purpose” for the State’s

video lottery terminal revenues. Md. Const., Art. XIX, § 1(c)(1).

1. The Governor’s and General Assembly’s Budget

Formulation Powers

We begin by considering whether the Governor may omit EC

§ 10-649(g)’s required amounts from the annual budget, or whether

the General Assembly may reduce or eliminate them during its

consideration of the budget bill. See Md. Const., Art. III, § 52. In

both cases, our answer is “no.” Section 10-649(g)’s status as a

mandatory appropriation for the maintenance of the public schools

protects it from the exercise of these ordinary budget powers.

The Constitution charges the General Assembly to “by Law

establish throughout the State a thorough and efficient System of

Free Public Schools; and [to] provide by taxation, or otherwise, for

their maintenance.” Md. Const., Art. VIII, § 1. That provision is

not self-executing but instead requires the General Assembly to

determine “by Law” how to organize and finance the public school

system. See Hornbeck v. Somerset County Bd. of Educ., 295 Md.

597, 631-32 (1983). Thus, statutory education financing provisions

implement and give substance to an express constitutional

mandate. The framers of the Budget Amendment (that is, Article

III, § 52) sought to harmonize the new budget procedure with

existing constitutional mandates where possible. See Report of the

Commission on Economy and Efficiency on a Budget System, Md.

Senate Journal, 1916 Leg., Reg. Sess., at 129, 133 (Jan. 28, 1916)

(“Goodnow Report”); see also 106 Opinions of the Attorney

Gen. 196] 205

General at 41 (explaining that Art. III, § 52 was developed from

the Goodnow Report’s recommendations).

With that idea of constitutional harmonization in mind, the

Budget Amendment granted the State’s educational funding

mechanisms some protection from the annual budget process.

More specifically, the Governor must include the spending

estimates for “the public schools, as provided by law,” in the

budget “without revision.” Md. Const., Art. III, § 52(11), (12); see

also id. § 52(4)(f). The General Assembly, in turn “shall not amend

the Budget Bill so as to affect . . . the provisions made by the laws

of the State for the establishment and maintenance of a system of

public schools.” Id. § 52(6). In sum, then, once the General

Assembly, in implementing Article VIII, has determined that the

public schools require a certain amount of funds, the Governor and

General Assembly—in their budget-formulating capacity—must

provide those funds.

Because mandatory appropriations significantly constrain the

budgetary discretion of both the Governor and the General

Assembly, however, we have recognized that certain conditions

must be met before a particular category of education spending will

be treated as constitutionally protected. An item of education

spending comes within the protection of § 52(4), (6), (11), and (12)

only if the General Assembly has established it “by law”—that is,

made it mandatory by statute. See 36 Opinions of the Attorney

General at 111. Our prior opinions have also understood these

constitutional provisions to require that educational appropriation

mandates must “admit of no administrative discretion,” a

requirement we discuss further below. Id. To summarize, then,

“two conditions must be satisfied before an educational budget

item will be treated as a mandatory public school appropriation: (1)

it must have been determined by the General Assembly to relate to

or provide for ‘the establishment and maintenance of a system of

public schools’; and (2) it must be an item which has been made

mandatory by law and which admits of no administrative discretion

in determining the amount to be submitted as a budget estimate.”

60 Opinions of the Attorney General at 201.

Section 10-649(g) of the Economic Development Article,

enacted by the Built to Learn Act, fulfills those criteria. First, its

funding mechanism provides for the maintenance of the State’s

public school system. Because school buildings are expensive

projects that often must be financed by long-term borrowing, bonds

for school construction—and, in turn, funds that are spent on debt

service on those bonds—serve an educational purpose. See Md.

206 [107 Op. Att’y

Op. Att’y Gen. No. 80-020, 1980 WL 127888, at *2 (Feb. 19, 1980)

(unpublished). The bonds that have been issued, and that will be

issued, under the Built to Learn Act are for the exclusive purpose

of building and renovating public schools. See EC

§§ 10-628(c)(1)(viii), 10-649, 10-650. Section 10-649(g) makes

those bond issues viable, and thereby promotes the Act’s

underlying educational purpose, by ensuring that the Authority will

be able to pay the principal and interest on the bonds.

But because the funding stream established by § 10-649(g)

draws on funds raised under Article XIX, the requirements of

Article XIX create an additional complication. Under Article

XIX’s “lockbox” provisions, commercial gaming revenues raised

under Article XIX must be used as “supplemental funding for

public education.” Md. Const., Art. XIX, § 1(f) (emphasis added).

There is a question, then, about whether funding for school

construction under the Built to Learn Act qualifies as

“supplemental” funding within the meaning of Article XIX. And

if those funds are indeed “supplemental” under Article XIX, there

is a second question as to whether “supplemental” funding under

Article XIX can also qualify as necessary for the “establishment

and maintenance” of the public school system, as required for those

funds to be constitutionally shielded from the budget process. See

Md. Const., Art. III, § 52(4), (6), (11), (12). In our view, the answer

to both of those questions is “yes”: the Built to Learn Act funds

are “supplemental” within the meaning of Article XIX, and there is

no inconsistency between funds being “supplemental” in that sense

and also supporting an educational funding mandate.

Beginning with the first question, Article XIX, § 1(f)(3)

requires that commercial gaming revenues “supplement[]” funding

under the “formulas established in the Bridge to Excellence in

Public Schools Act of 2002,” i.e., the school funding formulas that

existed in 2018 (and in 2008, when Article XIX was first ratified).

At the time § 1(f) was proposed, the General Assembly expected it

would soon enact new and increased funding mandates supplanting

the Bridge to Excellence, see Revised Fiscal & Policy Note, S.B.

1122, 2018 Leg., Reg. Sess. at 3-4 (discussing recommendations of

the Kirwan Commission and likelihood that increased education

spending would become necessary), which later came to fruition

with enactment of the “Blueprint for Maryland’s Future,” see 2021

Md. Laws, ch. 36. And the General Assembly apparently expected

that “supplemental” funds under § 1(f) would be available to fulfill

the expanded funding requirements of the Blueprint. See, e.g.,

Revised Fiscal & Policy Note, S.B. 1122, 2018 Leg., Reg. Sess. at

4 (explaining that “[t]he allowable uses for the supplemental

Gen. 196] 207

funding” under § 1(f) “align with some of the preliminary

recommendations of the [Kirwan Commission],” which proposed

the Blueprint reforms); Hearing on H.B. 1697 Before the House

Appropriations Comm., at 20:45, 2018 Leg., Reg. Sess. (Mar. 8,

2018) (statement of Del. McIntosh); see also 2018 Md. Laws, ch.

357 (Preamble) (indicating that purpose of 2018 constitutional

amendment was tied to the recommendations of the Kirwan

Commission).

That is, part of the purpose of the education “lockbox” was to

secure financing for the Blueprint’s enhancements to public

education funding, thereby fulfilling what lockbox advocates

argued was the voters’ original expectation upon ratification of

Article XIX: that commercial gaming would support the expansion

of funding for public schools beyond what the law required in

2008.7 Both this history, and the text of § 1(f)—which refers only

to the “Bridge to Excellence” formulas—suggest that Article XIX

funds may support an educational funding formula without losing

their “supplemental” character, as long as those funds go toward

spending above and beyond the requirements of the “Bridge to

Excellence.”

This understanding, we recognize, raises difficult questions

about how to define the baseline that Article XIX funds must

“supplement,” given that the Bridge to Excellence formulas which

define that baseline no longer exist. Or perhaps the requirement

that funding be “supplemental” to Bridge to Excellence no longer

has any practical effect now that the Blueprint formulas have

superseded the Bridge to Excellence formulas.

7

The Blueprint formulas were projected to increase State education

spending above the Bridge to Excellence mandated amounts by $971

million in Fiscal Year 2023, $1.2 billion in Fiscal Year 2024, and by a

greater amount in each successive fiscal year, up to $2.8 billion in Fiscal

Year 2030. Revised Fiscal & Policy Note, H.B. 1300, 2020 Leg., Reg.

Sess. App. A. By contrast, Education Trust Fund revenues from

commercial gaming have generally been in the vicinity of $500 million

and have increased at a modest rate. Revised Fiscal & Policy Note, S.B.

1122, 2018 Leg., Reg. Sess. at 5 ex. 1. Thus, it is likely that the amount

of money dedicated to supplemental funding for public schools under

Article XIX will always be smaller than the difference between the

amount Bridge to Excellence would have required and the amount

Blueprint will require. This in turn suggests that the entire amount of

Education Trust Fund revenues could be dedicated to funding the

Blueprint formulas without violating the requirement that those funds

“supplement[]” what Bridge to Excellence would have required.

208 [107 Op. Att’y

We need not answer those questions here, though, because the

Built to Learn Act provides for funding above the baseline—that

is, funding that qualifies as “supplemental”—however the baseline

is defined. Funding for school construction has traditionally been

separate from the State’s regular educational funding programs.

That is, most if not all school construction funding has occurred

outside of the Bridge to Excellence and Blueprint funding formulas

and has instead been supported by general obligation bonds in the

capital budget. See Revised Fiscal & Policy Note, H.B. 1783, 2018

Leg., Reg. Sess. at 15-19; Revised Fiscal & Policy Note, H.B. 1,

2020 Leg., Reg. Sess. at 20-23. Because those formulas have not

mandated substantial funding for school construction, any school

construction funding program is likely to qualify as a

“supplemental” use within the meaning of § 1(f). Consistent with

that understanding, Article XIX, § 1(f)(2)(vi) identifies the

maintenance, renovation, and construction of public schools as a

valid use for Article XIX “supplemental” funding.

Moreover, even if the State’s regular school construction

program were considered part of the § 1(f) baseline, the Built to

Learn Act funds would not merit that same treatment, because

those funds were intended to supplement the regular school

construction program. The Built to Learn Act was enacted because

the regular public school construction program cannot fund every

deserving project, see Revised Fiscal and Policy Note, H.B. 1, 2020

Leg., Reg. Sess. at 20, given that the funding available under the

regular program is limited by the State’s estimates of how much

new debt the State can “prudently” incur, see SFP §§ 8-112, 8-113.

Indeed, the first priority of the Built to Learn Act is to fund

approved school construction projects that have been “deferred due

to fiscal constraints.” EC § 10-650(a)(2).8

To the second question raised above—whether “supplemental”

funding can qualify as “mandatory” for budget purposes—we do

not see any logical problem with “supplemental” funds as that term

8

We accordingly see no conflict between Article XIX’s requirement

(also reflected in SG § 9-1A-30(e)) that commercial gaming revenues be

used for “supplemental” funding, and EC § 10-650(c)’s provision that

Built to Learn Act funds represent “the State share” of school

construction costs. The Built to Learn Act is providing the amount of

funding that the State would otherwise have provided for a project under

its regular construction program if it had the funds to do so. Though the

same formula is used to calculate the State share, as distinguished from

the local share, under both programs, the projects funded under the Built

to Learn Act would not have received any State funding at all absent the

Built to Learn Act—hence, the Act is “supplemental.”

Gen. 196] 209

is used in Article XIX supporting the “establishment and

maintenance” of the public schools. Funds may be supplemental

in the sense that they add to some pre-existing baseline, while still

being both mandatory and necessary in the General Assembly’s

judgment (and as a practical matter) to meet the requirements for

the State’s system of public schools. The General Assembly has

substantial discretion to determine what “a thorough and efficient

system of free public schools” requires, see Hornbeck, 295 Md. at

631-32; 36 Opinions of the Attorney General at 111-12, and

therefore may establish new educational funding mandates or

expand old ones in order to meet those requirements. Those new

mandates may supplement the funding required under Bridge to

Excellence, while still being necessary to provide for the public

school system—as is the case with the Built to Learn Act.

We also note that the State’s educational funding programs

have changed many times since voters ratified the Budget

Amendment in 1916. See Hornbeck, 295 Md. at 628-31.9 In our

view, the framers of the Budget Amendment would have

anticipated that such changes could occur, including changes that

would increase the overall level of funding, on the grounds that

what was once adequate is no longer adequate. See 68 Opinions of

the Attorney General at 57-58; Norris v. Mayor & City Council of

Baltimore, 172 Md. 667, 675-76 (1937) (explaining that the

Constitution “will be given a meaning which will permit the

application of [its] principles to changes in the economic, social,

and political life of the people”).

The framers thus did not tie § 52’s protections for education

funding to any specific amount or formula. Nor did they foreclose

the possibility that the General Assembly could supplement an

older formula while at the same time determining the new amount

to be necessary in light of current circumstances. Rather, they left

it for the General Assembly to determine what level of funding to

make mandatory. For all these reasons, we think funding derived

from Article XIX may be dedicated “for the establishment and

maintenance of [the] public schools” and made mandatory within

the meaning of Article III, § 52, and thus constitutionally protected

from the budget process, while still being “supplemental” to the

Bridge to Excellence formulas within the meaning of Article XIX,

§ 1(f).

9

In fact, the General Assembly comprehensively revised the State’s

educational funding formulas that very same year. See 1916 Md. Laws,

ch. 506.

210 [107 Op. Att’y

Turning to the second prong of our test for mandated

education appropriations, the funding provided in EC § 10-649(g)

has “been made mandatory by law.” 60 Opinions of the Attorney

General at 201. Whether the General Assembly has made an

appropriation mandatory is a question of legislative intent. See 65

Opinions of the Attorney General 108, 110 (1980); Letter from

Richard E. Israel, Assistant Attorney General, to Barbara Klein,

Department of Fiscal Services (Mar. 30, 1984). Although analysis

of legislative intent may consider various types of evidence, “[i]f

the plain language of the statute is unambiguous and is consistent

with the statute’s apparent purpose,” we ordinarily need not go

further. Comptroller v. Phillips, 384 Md. 583, 591 (2005).

Here, the plain language and statutory purpose are in

harmony. Section 10-649(g) provides that the Comptroller “shall

deposit” the specified funds from the Education Trust Fund into the

Financing Fund each year. The word “shall” generally implies a

mandatory duty. See, e.g., Walzer v. Osborne, 395 Md. 563, 580

(2006). In addition, the statute does not merely require the

Governor to include funds in the budget, which might leave open

the possibility that the funds could be removed from the budget or

reallocated at a later stage in the process. See Letter from David

W. Stamper, Assistant Attorney General, to David Romans,

Department of Legislative Services, at 3 (Mar. 22, 2019) (“Romans

Letter”). Instead, § 10-649(g) expressly directs the Comptroller to

disburse the funds at specified intervals. This directive assumes

there will be an appropriation authorizing that disbursement, since

the Comptroller may not authorize disbursement of funds from the

Treasury without an appropriation. See Md. Const., Art. VI, § 2.

Treating the EC § 10-649(g) disbursement as mandatory is

also consistent with the statutory purpose. An appropriation

mandate helps to ensure the availability of funds for debt service

on Built to Learn Act bonds (even though, as discussed further

below, the General Assembly retains the ability to alter the

mandate). And by providing that the disbursement under

§ 10-649(g) is the first priority for the use of Education Trust Fund

money, the General Assembly further confirmed its intent that that

disbursement be mandatory. See 2022 Md. Laws, ch. 32

(amending SG § 9-1A-30(d)). We are thus confident that the

General Assembly intended § 10-649(g) to create a mandatory

appropriation.

We also see no “administrative discretion in determining the

amount” to be disbursed to the Financing Fund under § 10-649(g).

60 Opinions of the Attorney General at 201. Although the “no

Gen. 196] 211

administrative discretion” test can sometimes be difficult to apply,

see, e.g., Letter from Patrick B. Hughes, Chief Counsel, Opinions

& Advice, and Thomas S. Chapman, Assistant Attorney General,

to Sen. Paul G. Pinsky and Del. Maggie McIntosh (Feb. 22, 2022)

(considering whether the “no administrative discretion” test may

be satisfied when factual projections or estimates are used as inputs

to formula), we need not wrestle with any of those more difficult

questions to conclude that the statute here leaves “no administrative

discretion.”

Far from providing any administrative discretion, the statute

specifies the precise amounts to be distributed: $30 million in

Fiscal Year 2022, $60 million in Fiscal Year 2023, and $125

million in Fiscal Year 2024 and each subsequent fiscal year. EC

§ 10-649(g)(2). Regardless of how the “no administrative

discretion” test might apply under other circumstances, then, this

statute clearly does not allow for any discretion. See 42 Opinions

of the Attorney General 98, 98 (1957) (concluding that statute

specifying minimum dollar amount for education required

Governor and General Assembly to appropriate at least that

amount).10

It makes no difference that the source of the mandatory

appropriation is a special fund, the Education Trust Fund, rather

than the General Fund. Cf. 68 Opinions of the Attorney General

86, 93-94 (1983) (concluding, outside the education context, that

the General Assembly could mandate an appropriation from federal

funds, which are treated similarly to special funds). Of course, a

special fund is a smaller pool of money than the General Fund.

Thus, drawing a mandatory appropriation from a special fund

increases the likelihood that there will be insufficient cash on hand

to fund the mandatory appropriation (whether because of a change

to the special fund’s funding mechanism, changed economic

conditions, or some other cause). That is, in some future fiscal

year, the Education Trust Fund might accrue less than the $125

million that EC § 10-649(g) requires. In that event, the actual

distributions to the Financing Fund would be limited to whatever

amount was in fact available in the Education Trust Fund.

Although the amount disbursed would be less than the statute

10

Article XIX, standing alone, does leave significant discretion as to

how commercial gaming revenues are to be allocated. See Md. Const.,

Art. XIX, § 1(f). Here, however, we are not dealing with Article XIX

standing alone, but with a statute that takes a specific, fixed dollar

amount of the funds under Article XIX’s overall umbrella and dedicates

them to a particular purpose.

212 [107 Op. Att’y

contemplates, there would still be no discretion as to the amount to

include in the budget.11

Thus, in our view, EC § 10-649(g) establishes a mandatory

public-school appropriation protected by Article III, § 52(4), (6),

(11), and (12). That means the Governor must include the

mandated amount in the budget each year, and the General

Assembly may not reduce or re-allocate it through the budget

process.

2. The Governor’s Budget Administration Powers

From our conclusion that EC § 10-649(g) establishes a

mandatory appropriation for the public schools, it also follows that

the Governor could not reduce or divert the § 10-649(g)

distribution by exercising the budget reduction and budget

amendment powers under SFP §§ 7-213 and 7-209. The budget

reduction power, which allows the Governor to reduce an

appropriation by 25% with the consent of the Board of Public

Works, does not apply to “an appropriation for . . . public schools.”

SFP § 7-213(b)(2)(ii). Although we have advised that this statutory

exception does not protect every public-school appropriation, it

does protect public-school appropriations (like this one) that are

mandatory in the constitutional sense. Letter from Jack Schwartz,

Chief Counsel, Opinions & Advice, to William S. Ratchford, II,

Director, Department of Fiscal Services, at 4-5 (Oct. 2, 1991); see

also 65 Opinions of the Attorney General at 49 (recognizing that

General Assembly could, by statute, authorize Governor to reduce

mandated appropriations “except, of course, those given

constitutional protection by [§ 52(6)]”).

Similar reasoning applies to the budget amendment power,

which allows the Governor to transfer funds among programs

within a unit or, in certain circumstances, between units. See SFP

§ 7-209. The General Assembly delegated that power to the

11

To be sure, the question of how to deal with a shortfall in the

Education Trust Fund would be more difficult if the General Assembly

had not (during this past session) specified an order of priority for

disbursements from the fund, or if the General Assembly had established

multiple mandatory appropriations drawing from the fund. But neither

of those problems exists here, so we need not decide how those scenarios

would be handled. Disbursements for Built to Learn Act debt service are

the first priority use of the Education Trust Fund, see 2022 Md. Laws,

ch. 32 (codified at SG § 9-1A-30(d)), and we are not aware of any other

mandatory appropriations that expressly draw on the Education Trust

Fund.

Gen. 196] 213

Governor under Article III, § 52(13), which allows the Legislature

to “enact such laws not inconsistent with [the Budget Amendment],

as may be necessary and proper to carry out its provisions.” See 72

Opinions of the Attorney General 3, 5 (1987). But because the

General Assembly could not alter a mandatory educational

appropriation in the budget bill, see Md. Const., Art. III, § 52(6), it

would be “inconsistent” with the Budget Amendment for the

Legislature to authorize the Governor to do the same thing by

statute, see id. § 52(13). In other words, given that the Governor

and General Assembly could not impair the EC § 10-649(g)

disbursement prior to passage of the budget bill, the Governor

cannot do the same thing later, in the exercise of the gubernatorial

budget administration powers.

3. The General Assembly’s Power to Amend Statutes

There are, however, other actions the General Assembly

could take to reduce the amount deposited into the Financing Fund

under EC § 10-649(g). Most obviously, the General Assembly

could amend or repeal § 10-649(g) itself. A mandatory

appropriation statute is still a statute, and the General Assembly

“cannot by ordinary legislation preclude the repeal or modification

of a statute by a subsequent legislature.” Letter from David W.

Stamper, Assistant Attorney General, to Sen. Thomas M.

Middleton, at 2 (Jan. 25, 2016) (citing cases); accord, e.g., Board

of County Comm’rs of Prince George’s County v. Donohoe, 220

Md. 362, 367 (1959). The rule is no different for the State’s

educational appropriation mandates, which the Legislature has

altered many times over the last century. See Hornbeck, 295 Md.

at 628-31 (discussing history of changes to State education funding

formulas).

We also see nothing in Article XIX that would override the

well-established rule that the General Assembly always has the

power to amend its own statutes. Article XIX requires that

“supplemental funding” derived from commercial gaming revenue

is limited to six educational purposes, including the maintenance,

renovation, and construction of public schools. See Md. Const.,

Art. XIX, § 1(f). But Article XIX says nothing to preclude the

Legislature from changing how the funds are allocated among

those six purposes. Accordingly, we think that the General

214 [107 Op. Att’y

Assembly could amend or even repeal § 10-649(g)’s funding

mandate through ordinary legislation.12

The General Assembly could also alter or eliminate the

§ 10-649(g) mandate for a single fiscal year, while leaving it in

place for future fiscal years, but only if it did so through the regular

legislative process rather than through the budget. Such one-time

alterations to mandates are commonly made through a Budget

Reconciliation and Financing Act or “BRFA,” see Wynne v.

Comptroller, 469 Md. 62, 71 (2020), which, despite the name, is

ordinary legislation and therefore not subject to constitutional

restrictions on the budget.

Similarly, because the General Assembly always retains the

power to amend its own statutes, it could also amend SG § 9-1A-27

to reduce the amount of commercial gaming revenue allocated to

the Education Trust Fund, even if that would put the State’s ability

to comply with EC § 10-649(g) at risk. Currently, SG § 9-1A-27

provides for specified percentages of the gross revenue from video

lottery terminals to be carved off for a variety of purposes and

leaves “the remainder to the Education Trust Fund.” SG

§ 9-1A-27(a)(9). But because the exact allocation is established by

statute, not in Article XIX, the General Assembly could adjust the

12

We considered whether such a change would raise questions under

the United States Constitution, but we do not believe that it would. The

U.S. Constitution forbids States to make any “Law impairing the

Obligation of Contracts,” including contracts where the State is a

party. U.S. Const., Art. I, § 10; U.S. Tr. Co. v. New Jersey, 431 U.S. 1,

17 (1977). Here, though, the State has made no contractual promise that

would preclude it from repealing § 10-649(g). Although any money

already deposited into the Financing Fund is pledged, by contract, to the

Built to Learn Act bondholders, see EC §§ 10-631, 10-634, nothing in

the relevant contracts requires the State to continue making deposits into

the Financing Fund. Indeed, each Built to Learn Act bond “shall state

on its face” that the bonds are “not a debt, liability, or pledge of the faith

and credit or the taxing power of the State . . . or any other governmental

unit” and are “payable solely from money pledged by the Authority” for

Built to Learn Act debt service “or money made available to the

Authority for that purpose.” EC § 10-649(d). A statutory amendment

reducing or eliminating payments into the Financing Fund thus would

not impair any contract between the Authority and the bondholders. See,

e.g., City of Charleston v. Public Serv. Comm’n, 57 F.3d 385, 392-93

(4th Cir. 1995) (explaining that Contract Clause analysis looks to

“whether the abridged right is one that was ‘reasonably relied’ on by the

complaining party”) (citation omitted); Stark v. Comptroller, 78 Md.

App. 599, 612-13 (1989).

Gen. 196] 215

allocation by amending the statute, thereby reducing the flow of

money to the Education Trust Fund.

Indeed, Article XIX vests at least some discretion in the

General Assembly to decide how to allocate the funds flowing from

commercial gaming. The Article’s text recognizes that not all

revenues derived from commercial gaming must be devoted to

public education. Section 1(c)(1), for example, authorizes the State

to issue video lottery terminal licenses for the “primary purpose”—

i.e., not necessarily the exclusive purpose—of raising revenue for

education. Meanwhile, § 1(e) allows the State to authorize

additional forms of commercial gaming if approved by a

referendum, but it does not specify how any revenues raised from

those additional forms of gaming must be used. Section 1(f), added

in 2018 by the “lockbox” amendment, in turn requires only that

“100% of revenues raised for public education under [§ 1(c)(1)],”

and “any other commercial gaming revenues dedicated to public

education,” be included in the Governor’s budget for educational

purposes. Md. Const., Art. XIX, § 1(f)(1)(iv) (emphasis added).

The emphasized language would serve no purpose if Article XIX

required all revenues raised under § 1(c)(1) and § 1(e) to be

dedicated to public education. See 97 Opinions of the Attorney

General at 64 (recognizing that constitutional provisions should be

read to avoid making any language superfluous). This suggests that

only those funds specifically “raised for” or “dedicated to” public

education are restricted to educational purposes by § 1(f).

Article XIX’s history supports that understanding as well. At

the same 2007 special session that proposed Article XIX to the

voters, the General Assembly enacted what is now SG § 9-1A-27,

dividing the revenues to be raised under Article XIX among a

variety of purposes, many of them unrelated to education. 2007

Md. Laws, Spec. Sess., ch. 4. The framers of Article XIX thus

never expected that 100% of revenues raised under that

Constitutional provision would go to education. Further, by

placing the provision specifying the allocation of revenue in the

implementing statute rather than the Constitution itself, the General

Assembly expressed its intent to retain some power over the

allocation. See, e.g., 62 Opinions of the Attorney General 275, 285

(1977) (explaining that, in interpreting a constitutional amendment,

“the proceedings of the Legislature which proposed the

amendment” may “throw useful light upon the purpose sought to

be accomplished or upon the meaning attached to the words

employed”). Nothing in the history of the 2018 lockbox

amendment suggests an intent to disrupt this established

understanding whereby some portion of the money raised from

216 [107 Op. Att’y

commercial gaming could be dedicated to non-educational

purposes. See Hearing on H.B. 1697 Before the House Comm. on

Appropriations, at 39:00, 2018 Leg., Reg. Sess. (Mar. 8, 2018)

(statement of Del. McIntosh).

To be clear, however, the General Assembly’s discretion in

this area is not unlimited. Article XIX requires that the revenues

raised from video lottery terminals must be used “for the primary

purpose of raising revenue” for public education. Md. Const., Art.

XIX, § 1(c)(1). The ballot question that proposed Article XIX to

the voters also stated that Article XIX’s overall purpose was “to

fund education” and emphasized § 1(c)’s “primary purpose”

language.13 See 62 Opinions of the Attorney General at 285

(explaining that “the circumstances attending the adoption of the

organic law” are a relevant consideration in constitutional

interpretation); Romans Letter at 3 (considering ballot question

language in interpreting Article XIX). Thus, an amendment to SG

§ 9-1A-27 that reduced the flow of funds for education to such a

degree that funding education could no longer be called “the

primary purpose” of the State’s video lottery terminals would

conflict with Article XIX.14 We need not draw that line for

purposes of this opinion, however. For now, it is enough to observe

that, on one hand, Article XIX does not require the General

Assembly to dedicate 100% of commercial gaming revenues to

education or to maintain the allocation of revenues exactly as it

currently stands, but, on the other hand, there are some limits on

13

Supra note 1.

14

Article XIX, § 1(e), the provision under which table games are

currently authorized, does not contain the same “primary purpose”

restriction. However, given that the goal of Article XIX, taken as a

whole, was to fund education, see supra note 1, a question remains as to

whether a similar restriction would nonetheless apply to revenue from

table games or any other type of commercial gaming authorized under

§ 1(e) rather than § 1(c). Indeed, when the General Assembly has

authorized referenda on expanding commercial gaming under § 1(e),

both the authorizing statute and the ballot question have generally

provided that the gaming expansions would be for the “primary purpose

of raising revenue for education.” See 2012 Md. Laws, 2d Spec. Sess.,

ch. 1, § 6 (table games); 2020 Md. Laws, ch. 492, § 5(a) (sports

wagering). This could mean that the General Assembly has understood

the “primary purpose” restriction in Article XIX to apply to all

commercial gaming revenues raised under Article XIX, not just video

lottery terminal revenues. Alternatively, it could mean that the General

Assembly has decided to apply the “primary purpose” limitation as a

policy judgment, even where the Constitution does not require it. Again,

we need not answer that question here.

Gen. 196] 217

the ability of General Assembly to reduce the flow of video lottery

terminal revenues to educational purposes.

B. Other Funding Under Article XIX and SG § 9-1A-30

Your second question is “whether the funding required by

Article XIX, § 1 of the State Constitution can be reduced by the

Governor or the General Assembly, or [can] be re-allocated for a

purpose other than as set forth in SG § 9-1A-30.” As long as EC

§ 10-649(g) remains in effect, our answer to your second question

is the same as our answer to your first. That is, whatever the

Governor and General Assembly may be empowered to do, or may

choose to do, with any of the remaining funds raised under Article

XIX, the amount specified by § 10-649(g) must be deposited from

the Education Trust Fund into the Financing Fund, because

§ 10-649(g) establishes a mandated appropriation for the

maintenance of the public schools. If the Education Trust Fund

ever contains less than § 10-649(g) requires—either because

commercial gaming revenues themselves have declined, or because

the General Assembly has altered the allocation of revenues under

SG § 9-1A-27—whatever amount the Trust Fund does contain

must be deposited into the Financing Fund. See 2022 Md. Laws,

ch. 32 (codified at SG § 9-1A-30(d)).

But if the General Assembly were to repeal EC § 10-649(g)—

or to amend it by regular legislation, such as a BRFA, so that its

requirements do not apply in a particular fiscal year—nothing

would require the Governor or the General Assembly to deposit

any particular amount in the Financing Fund.15 Article XIX only

requires that commercial gaming revenues “raised for public

education” or “dedicated to public education” (which, under the

current statutory scheme, effectively means commercial gaming

revenues deposited into the Education Trust Fund) must be used

for one or more of six broad purposes, and that the funds be

“supplemental” to the requirements of the Bridge to Excellence

funding formulas. Md. Const., Art. XIX, § 1(f). Assuming the

absence of a mandatory appropriation like that found in EC

§ 10-649(g), we see nothing in Article XIX standing alone that

15

We assume that, if the General Assembly were hypothetically to

repeal or amend § 10-649(g), it would also make a corresponding change

to the language enacted at the 2022 session establishing § 10-649(g)

deposits as the first priority use of money in the Education Trust Fund.

See 2022 Md. Laws, ch. 32 (codified at SG § 9-1A-30(d)). To do the

former but not the latter would create significant confusion, given that

the new language in SG § 9-1A-30(d) explicitly presumes the

effectiveness of § 10-649(g).

218 [107 Op. Att’y

would prevent the Governor from budgeting the entire balance of

the Education Trust Fund for, say, “high-quality early childhood

education programs,” Md. Const., Art. XIX, § 1(f)(2)(ii), and none

for school construction or construction-related debt service.

To summarize, then, if EC § 10-649(g) remains in effect, the

stream of funds to the Financing Fund is protected. But if

§ 10-649(g) were repealed or amended, the amount of further

deposits into the Financing Fund, if any, would be a matter for the

Governor’s and General Assembly’s discretion.16

C. Priority of Disbursements from the Education Trust Fund

Your third question is “what funding priority, if any, applies

to the funds in the Education Trust Fund.” As discussed above, the

General Assembly answered that question by enacting Chapter 32

of 2022, which provided that the required distribution of funds

under § 10-649(g) is the first priority for the use of Education Trust

Fund money. 2022 Md. Laws, ch. 32 (codified at SG

§ 9-1A-30(d)).

The same legislation provided that the second priority is

“required funding . . . through continuation of” Bridge to

Excellence—i.e., the State’s previously existing educational

funding formula—and the third priority is “supplemental funding

for education and public schools.” Id. The second and third

priorities are based on language from a prior version of the statute.

See 2022 Md. Laws, ch 32. It is possible that this second priority

might no longer have any practical effect, given that the Bridge to

Excellence formulas are themselves no longer in effect. But it is

not necessary to resolve that conundrum to answer your question,

because the statute makes clear that Built to Learn Act debt service

is the first priority for the use of money in the Education Trust

Fund.

16

For purposes of this opinion, we need not decide all questions

concerning how Article XIX standing alone divides power between the

Governor and the General Assembly. For example, we do not decide

whether, absent a statutory mandate like EC § 10-649(g), the General

Assembly may “strike out or reduce” the Governor’s proposed

appropriations from the Education Trust Fund. Md. Const., Art. III,

§ 52(6); see Romans Letter (concluding that the General Assembly does

retain that power). To answer your question, it is enough to conclude

that, in the absence of an appropriation mandate, whether to continue to

fund the Financing Fund would be left to the budget process.

Gen. 196] 219

III

Conclusion

In sum, § 10-649(g) of the Built to Learn Act establishes a

mandated appropriation for public education that is protected by

Article III, § 52(4), (6), (11), and (12), of the Constitution. The

Governor accordingly must include the amount specified by

§ 10-649(g) in each year’s budget, as an appropriation from the

Education Trust Fund, and the General Assembly may not strike,

reduce, or reallocate that appropriation in the budget. Nor may the

Governor use the budget reduction or budget amendment power to

reduce or divert the appropriation that § 10-649(g) requires.

However, the General Assembly retains the power to amend

or repeal § 10-649(g) itself, and thus retains the power to eliminate

the mandate permanently or during a particular fiscal year. The

General Assembly may also have some discretion to reduce the

flow of commercial gaming revenues into the Education Trust

Fund by amending the statute that governs the distribution of those

revenues, though that discretion is constrained to some degree by

Article XIX. And if the General Assembly were to repeal or amend

§ 10-649(g), nothing in Article XIX standing alone would require

the Governor or the General Assembly to appropriate funds for

Built to Learn Act debt service. Finally, the mandatory annual

distributions for Built to Learn Act debt service are, by statute, the

highest priority use of money in the Education Trust Fund.

Brian E. Frosh

Attorney General of Maryland

Thomas S. Chapman

Assistant Attorney General

Patrick B. Hughes

Chief Counsel, Opinions and Advice