Budgetary AdministrationBoard of Public Works – Administrative Law – Reduction of Appropriations –Whether the Board of Public Works May Reconsider its Prior Approval of Budget Reductions Proposed by the Governor Under Section 7-213 of the State Finance & Procurement Article –Whether the Board May Impose Certain Conditions on Approval of Such Reductions.

38 [106 Op. Att’y

BUDGETARY ADMINISTRATION

BOARD OF PUBLIC WORKS – ADMINISTRATIVE LAW –

REDUCTION OF APPROPRIATIONS – WHETHER THE BOARD

OF PUBLIC WORKS MAY RECONSIDER ITS PRIOR

APPROVAL OF BUDGET REDUCTIONS PROPOSED BY THE

GOVERNOR UNDER SECTION 7-213 OF THE STATE FINANCE

& PROCUREMENT ARTICLE – WHETHER THE BOARD MAY

IMPOSE CERTAIN CONDITIONS ON APPROVAL OF SUCH

REDUCTIONS.

March 22, 2021

John T. Gontrum, Esquire

Executive Secretary, Board of Public Works

You have requested our opinion on two questions relating to

the authority of the Board of Public Works (the “Board”) to

approve the reduction of an appropriation in the budget under the

Maryland statute that allows for such reductions. See Md. Code

Ann., State Fin. & Proc. (“SFP”) § 7-213. First, you ask what

authority the Board has to reconsider a reduction that it has

approved. Second, you ask whether the Board, when approving a

reduction, may provide that “the fulfillment of specified

conditions” would either automatically rescind the Board’s

approval of the reduction or automatically require that the Board

reconsider the reduction.

As to your first question, in our opinion, the Board may

reconsider and rescind its vote approving a reduction under SFP

§ 7-213 up until the time the reduction takes effect. After a

reduction takes effect, however, the Board lacks the power to

reconsider its approval, rescind its approval, or otherwise restore

the appropriation. As for when the reduction takes effect, a

reduction implemented through a budget amendment under SFP

§ 7-209—the way that such reductions have historically been

implemented—takes effect “when the Governor sends notice of

the amended appropriation to the Comptroller.” SFP § 7-209(g).

A reduction that is not implemented using the budget amendment

procedures in § 7-209 would take effect when the Governor signs

the document implementing the reduction, unless the document

specifies an effective date, in which case the reduction would take

effect on that date.

Gen. 38] 39

As to your second question, there is significant uncertainty

as to whether the Board may impose any conditions when

exercising its authority under SFP § 7-213, let alone a condition

that would result in automatic rescission or reconsideration of the

Board’s approval of a budget reduction based on the future

occurrence of some specified event. Although it is often the case

that the express power of an agency to disapprove an action carries

with it the implicit power to approve that action with conditions,

we have serious doubts that the General Assembly intended to

grant the Board authority to impose conditions under SFP § 7-213,

given the Board’s especially narrow role under the statute and the

constitutional questions that could arise by allowing the Board to

impose conditions. While we cannot say with certainty that the

Board categorically lacks the power to impose a condition

providing for automatic rescission of its approval upon the

occurrence of a specified event, the Board could achieve essentially

the same result, without raising any questions as to the legality of

its actions, simply by deferring a vote on the Governor’s proposed

reductions (or declining to approve those reductions) until after the

contemplated event has (or has not) come to pass. For that reason,

we advise the Board against imposing any such conditions, given

the legal uncertainty of that approach and the availability of an

unquestionably legal alternative.

I

Background

A. The State Budget Process

Maryland’s budget system was established in 1916 by an

amendment to the State Constitution. Md. Const., Art. III, § 52;

1916 Md. Laws, ch. 159. Under the present budget system, the

Governor submits to the General Assembly each January a budget

for the upcoming fiscal year, which shall “contain a complete plan

of proposed expenditures and estimated revenues for said fiscal

year,” 1 along with a budget bill containing all of the appropriations

to authorize the proposed expenditures. Md. Const., Art. III,

§ 52(3) and (5). In developing the spending plan, the Governor

may revise the spending estimates proposed by State agencies,

1

That “complete plan” is embodied in the budget books, a multi-

volume publication that details the State’s annual operating budget,

organized by unit of State government. Letter from Richard E. Israel,

Assistant Attorney General, to the Honorable R. Clayton Mitchell,

Speaker of the House of Delegates (Jan. 10, 1991).

40 [106 Op. Att’y

except those for the General Assembly, for the Judiciary, and for

the public schools, as provided by law. Id. § 52(11). Similarly, for

those programs for which a law prescribes a level of funding, the

Governor may not reduce the estimate below the level prescribed

by law. Id. § 52(12). After the submission of the budget bill to the

General Assembly (until it is finally acted upon), the Governor

may, with the General Assembly’s consent, amend or supplement

the budget bill. Id. § 52(5).

Except for appropriations relating to the legislative and

judicial branches, the General Assembly may only “strike out or

reduce” items of appropriation. 2 Md. Const., Art. III, § 52(6). It

may not amend the budget bill so as to increase an appropriation

for an executive branch program. Id. If the General Assembly

wants to initiate an appropriation for an executive branch program,

it may do so only by way of a supplementary appropriation bill,

which must be embodied in a separate bill limited to a single

purpose and must levy a tax to support the appropriation. 3 Id.

§ 52(2) and (8). “In this manner the Governor and the General

Assembly together, with the Governor having a preeminent role,

enact a budget for the ensuing fiscal year based on departmental

estimates of needs and on estimated revenues.” Judy v. Schaefer,

331 Md. 239, 250 (1993). This design was meant to ensure a

balanced State budget, and since 1974, Article III, § 52(5a) has

“expressly mandate[d] that the Governor propose and maintain a

balanced budget.” Judy, 331 Md. at 249. 4

2

The General Assembly may not amend the budget bill so as to affect

State debt obligations, the provisions made by law for the establishment

and maintenance of public schools, or the payment of constitutionally

mandated salaries, nor may it amend the budget bill to decrease the salary

or compensation of any public officer during the officer’s term of office.

Md. Const., Art. III, § 52(6).

3

A constitutional amendment ratified by the voters at the general

election on November 3, 2020, authorizes the General Assembly,

beginning with the Fiscal Year 2024 budget bill, to increase or add items

for executive branch programs, provided the total of appropriations for

executive branch programs does not exceed the total proposed by the

Governor. 2020 Md. Laws, ch. 645.

4

Subsection (5a) was added to Article III, § 52 by 1973 Md. Laws,

ch. 745. It states:

The Budget and the Budget Bill as submitted by the

Governor to the General Assembly shall have a figure for

the total of all proposed appropriations and a figure for the

total of all estimated revenues available to pay the

Gen. 38] 41

The State’s budget system was adopted at the recommendation

of the Commission on Efficiency and Economy (known as the

“Goodnow Commission”), which had been directed by the

Democratic Party platform to consider two options for who would

play that dominant role in the budget process, i.e., who would make

the final budget estimates for submission to the General Assembly:

either the Governor alone or the Board of Public Works, which is

composed of the Governor, the Comptroller, and the Treasurer.

Report of the Commission on Economy and Efficiency on a Budget

System, Maryland Senate Journal, 1916 Sess., at 129-134 (Jan. 28,

1916) (“Goodnow Report”); see also Alan M. Wilner, The

Maryland Board of Public Works: A History 80 (1984). The

rationale for selecting the Governor, rather than the Board, was

explained in the Goodnow Report as follows:

We have concluded that this responsibility

should be placed upon the Governor. We

have felt that to make use of the Board of

Public Works as a Budget Commission would

have the disadvantage of dissipating personal

responsibility for financial propositions, and

would also run the risk of not securing party

responsibility.

Goodnow Report at 131.

appropriations, and the figure for total proposed

appropriations shall not exceed the figure for total

estimated revenues. Neither the Governor in submitting

an amendment or supplement to the Budget Bill nor the

General Assembly in amending the Budget Bill shall

thereby cause the figure for total proposed appropriations

to exceed the figure for total estimated revenues,

including any revisions, and in the Budget Bill as enacted

the figure for total estimated revenues always shall be

equal to or exceed the figure for total appropriations.

(emphasis added). This requirement is an ongoing one that applies not

just at the time of the budget’s enactment. See Judy, 331 Md. at 260

(rejecting as inconsistent with the language and history of Article III,

§ 52 the contention “that the balanced budget requirement was intended

to apply only during the preparation of the budget and its passage”). At

the same time, we have recognized that it is not “constitutionally

necessary for the Budget to in fact be balanced subsequent to its

enactment at every moment in time throughout the fiscal year.” 61

Opinions of the Attorney General 59, 60 (1976) (emphasis in original).

42 [106 Op. Att’y

B. The Budget Reduction Statute

Aside from the ongoing requirement to maintain a balanced

budget, Article III, § 52 does not speak to the administration of the

State budget after its enactment. It does, however, authorize the

General Assembly to enact “such laws not inconsistent with” that

section as may be “necessary and proper” to carry out its

provisions. Md. Const., Art. III, § 52(13). Pursuant to that

provision, the General Assembly has established a statutory

scheme for the administration of the budget.

Much of that statutory scheme is codified in Division I of the

State Finance and Procurement Article. Title 7 deals with

appropriations, and Subtitle 2 of Title 7 deals with the disbursement

and expenditure of appropriated funds. Under those provisions,

“[m]oney may be disbursed from the State Treasury only in

accordance with the current appropriation for a program as

amended from time to time in accordance with [Title 7].” SFP § 7-

205. While “[t]he initial appropriation for a program is set forth in

the appropriation act[,] . . . the appropriation for a program may be

increased or reduced as provided in [Title 7, Subtitle 2].” SFP § 7-

206.

As is especially relevant here, there are two statutes that

authorize the Governor to amend appropriations for executive

branch programs after the enactment of the budget bill. First, under

SFP § 7-209, the Governor may amend an appropriation for a

program of the Office of the Governor or, on the request of an

officer or unit of the Executive Branch, approve an amendment of

an appropriation for a program of that officer or unit. This

authority is subject to certain limitations. Most significantly, an

amendment of an appropriation generally may not increase the sum

of appropriations from the General Fund for all programs of the

officer or unit. SFP § 7-209(c)(1). 5

Second, the Governor also may amend an appropriation

pursuant to SFP § 7-213, commonly known as the “budget

reduction statute,” which allows the Governor, “with the approval

of the Board of Public Works, [to] reduce, by not more than 25%,

any appropriation: (i) that the Governor considers unnecessary; or

(ii) that is subject to budgetary reductions required under the

budget bill as approved by the General Assembly.” This authority

5

The exception to this rule is that an amendment may increase the

sum of appropriations from the General Fund for all programs of the

officer or unit if money from the Board’s Contingent Fund is transferred

to the program. SFP § 7-209(c)(2).

Gen. 38] 43

to reduce appropriations is subject to a number of exclusions. The

Governor may not reduce an appropriation for the legislative or

judicial branches, for the payment of the principal of or interest on

State debt, for the public schools, the Maryland School for the Deaf

or the Maryland School for the Blind, for the salary of public

officers during their term of office or, except as provided in § 8-

109 of the State Personnel & Pensions Article, for the salary of a

non-temporary employee in the State Personnel Management

System. SFP § 7-213(b). 6 Many of these exclusions mirror the

provisions in Article III, § 52 that preclude the Governor from

revising certain spending estimates in the proposed budget. See

Md. Const., Art. III, § 52(11), (12).

These statutory powers date back to the 1939 Budget and

Procurement Act 7 and had earlier been enacted as part of the

biennial budget bills. 8 See Judy, 331 Md. at 251-52; Wilner, The

Maryland Board of Public Works, supra, at 84-85. The first budget

bill after the ratification of § 52, enacted at the 1918 session,

provided that the “schedules” for each appropriation are to

“represent the initial plan of distribution and apportionment of the

appropriations to which they, respectively, refer,” but that “such

Schedule may be amended” as provided therein. 1918 Md. Laws,

ch. 206, § 3. This “concept of the budget bill being an ‘initial plan

of disbursement’ has been an element of the executive budget

system since its enactment.” Judy, 331 Md. at 252-53.

During the Great Depression, so that the State could better

respond to the effects of the Depression on the State’s finances,

additional budget administration provisions, originally intended as

emergency measures, were incorporated into the budget bills.

Wilner, The Maryland Board of Public Works, supra, at 84; 65

Opinions of the Attorney General 45, 46-48 (1980). The budget

bills enacted during the legislative sessions of 1933 and 1935

authorized the Board of Public Works to “supervise the expenditure

6

In interpreting the exclusion for an appropriation for the salary of a

non-temporary employee in the State Personnel Management System,

we have said that it does not preclude the elimination of funding for

positions but merely preserves the procedures in § 8-109 of the State

Personnel & Pensions Article for categorical decreases in rates of pay.

76 Opinions of the Attorney General 330, 337 n.9 (1991); 75 Opinions

of the Attorney General 366, 369 n.5 (1990).

7

1939 Md. Laws, ch. 64.

8

Until 1949, the General Assembly met every other year and would

enact a budget bill covering the next two fiscal years.

44 [106 Op. Att’y

of all appropriations . . . in [the] budget” and provided that “for that

purpose the said Board shall have the power to reduce or eliminate

any appropriation which it may deem unnecessary,” except

appropriations for debt service or for the legislative or judicial

branches. 1933 Md. Laws, ch. 597, § 11; 1935 Md. Laws, ch. 92,

§ 11. Similar authority was not included in the budget bill passed

at the 1937 session, but the Budget and Procurement Act of 1939,

which codified many of the budget administration provisions

previously enacted in each budget bill, reinstituted the power to

reduce appropriations, though it vested that authority in the

Governor rather than the Board.

The 1939 Act was originally codified as Article 15A. Section

9 of former Article 15A is the direct predecessor to the current

budget reduction statute, SFP § 7-213, and like the current statute

it authorized the Governor, with the approval of the Board, to

reduce by not more than 25% any item of appropriation that the

Governor deemed unnecessary, except appropriations for certain

purposes identified therein. 1939 Md. Laws, ch. 64. “The General

Assembly [was] well aware of the problem in the 1930[s] and the

possibility of its recurrence, [and it] enacted [the budget reduction

statute] in 1939 in order to forestall the accumulation of deficits in

subsequent fiscal years.” Judy, 331 Md. at 259. The purpose of

that statute “is to enable the State to accommodate an unexpected

decrease in anticipated State revenues and, notwithstanding the

vagaries of the economy, to maintain a balanced budget, one of the

principal goals of the framers of the Budget Amendment.” 65

Opinions of the Attorney General at 48. 9

While this Office has, on occasion, described the reduction

statute as delegating to the Governor the General Assembly’s

authority to “strike or reduce” items of appropriation in the budget,

the Court of Appeals has observed that “it is not particularly useful

to characterize” the statute as effecting a delegation of legislative

authority, given that Article III, § 52 “greatly expanded the

gubernatorial role” with respect to the State budget. Judy, 331 Md.

at 262 n.18. As the Court of Appeals put it, “[t]he authority given

to the Governor in § 7-213 corresponds to the power vested in the

Governor by Art. III, § 52,” and § 7-213 “merely allows the

Governor to accomplish at the end of the budget process what he is

required to do when he submits his initial budget.” Id. at 259-60.

Indeed, the Court held that § 7-213 was a constitutional exercise of

9

For further discussion of the history of the budget reduction statute

and the major State budgetary actions prompted by the economic

depression of the 1930s, see 65 Opinions of the Attorney General at 46-

48; Wilner, The Maryland Board of Public Works, supra, at 84-87.

Gen. 38] 45

the General Assembly’s power to enact laws “not inconsistent

with” Article III, § 52, in part because the statute was consistent

with the preeminent role given to the Governor over the budget

under the Maryland Constitution. More specifically, the Court

explained:

the statute recognizes and perpetuates the

preeminent role of the Governor in the budget

process, a role considered by the Goodnow

Commission to be “fundamental . . . for a

sound budget system.” Furthermore, because

§ 7-213 furthers the requirement of

maintaining a balanced budget throughout the

fiscal year, it is precisely the type of

legislation which the framers of Art. III, § 52,

contemplated.

Id. (citations omitted).

It is evident from the plain language of § 7-213, as well as the

cases and our opinions interpreting the statute, that the authority to

make reductions to appropriations is vested exclusively in the

Governor, subject to the limitations set out in statute, including the

limitation that the Governor may reduce an appropriation only after

securing the Board’s approval. Under the budget reduction statute,

“the Governor, and only the Governor, can reduce appropriations

in the budget up to 25% after the budget has been enacted.”

Workers’ Comp. Comm’n v. Driver, 336 Md. 105, 119 (1994). As

our Office has long explained, therefore, the Board “may not

substitute its own reductions for those of the Governor,” Letter

from J. Joseph Curran, Jr., Attorney General, to William S.

Ratchford, II, Director, Dep’t of Fiscal Services, at 3 (Oct. 3, 1991)

(“Curran Letter”), though the Board may decline to approve one or

more of the Governor’s proposed reductions or may seek to

persuade the Governor to change the proposal.

C. The Board of Public Works

The Board of Public Works, which consists of the Governor,

Comptroller, and Treasurer, is established by Article XII of the

Maryland Constitution. Although established by the Constitution,

the powers and duties specifically vested in the Board by the

Constitution are quite narrow and “are now largely obsolete.”

Building Materials Corp. of Am. v. Board of Educ. of Baltimore

County, 428 Md. 572, 578 n.4 (2012). Apart from the Board’s

46 [106 Op. Att’y

limited duties relating to certain canal and railroad companies, it

exercises only those powers that are conferred on it by the General

Assembly. See Md. Const., Art XII, § 1 (providing for the creation

of the Board to “hear and determine such matters as affect the

Public Works of the State, and as the General Assembly may confer

upon them the power to decide”); 76 Opinions of the Attorney

General 46, 49 (1991) (“Except for imposing some anachronistic

duties relating to canal and railroad companies, the constitutional

provisions relating to the Board of Public Works simply defer to

the General Assembly’s power to legislate. . . .”); 62 Opinions of

the Attorney General 716, 725-27 (1977) (concluding that the

Board’s powers with respect to the “Public Works of the State” are

“circumscribed by the Legislature”); see also Truitt v. Board of

Public Works, 243 Md. 375, 388 (1966) (holding that the Board, in

executing administrative functions, is subject to “the operation of

the legal principles applicable to administrative agencies”).

II

Analysis

A. Reconsideration of the Board’s Approval

You have first asked for guidance regarding the Board’s

authority to reconsider a prior vote to approve the reduction of an

appropriation pursuant to SFP § 7-213. We have answered this

question before, though not in the form of an official opinion of the

Attorney General. In a 1991 letter of advice, Attorney General

Curran expressed the view that the Board was free to reconsider

and rescind its approval up until the time the reduction takes effect.

Curran Letter at 3. On that occasion, the Board had approved, the

day earlier, the Governor’s plan to reduce a number of

appropriations for Fiscal Year 1992, with the reductions to be

implemented by way of a master budget amendment under SFP

§ 7-209. In concluding that the Board could reconsider its approval

of the reductions, the Attorney General explained:

Under accepted principles of parliamentary

law, a public body may reconsider an action

until that action has gone into effect or the

matter is beyond the control of the body. In

the absence of a rule adopted by the body,

there is no time limit on a motion to

reconsider. The general principle is that “all

deliberative bodies have a right . . . to

reconsider their proceedings as they deem

Gen. 38] 47

proper, and it is the final result only which is

to be regarded as the thing done.”

Because the Governor’s reduction plan

contemplates that it will be implemented by

the processing of a master administrative

budget amendment under § 7-209 of the State

Finance and Procurement Article, it is our

view that the Board’s action will not have

gone into effect until it is implemented as

proposed, when the Governor’s master budget

amendment takes effect. Thus, until that time,

the Board could reconsider its decision.

However, once the budget amendment has

become effective, the appropriation schedules

will have been revised in accordance with the

Board’s approval of the Governor’s decision

and the time for reconsideration will have

passed.

After the time for reconsideration has passed,

the Board may not act to restore any of the

appropriations that were reduced. Unlike the

General Assembly, the Board has no plenary

authority to revisit past decisions. It has only

the authority given it by statute, and neither

§ 7-213 nor any other statute authorizes it to

restore an appropriation once it has been

reduced.

Curran Letter at 3 (alterations in original) (footnotes and citations

omitted).

We agree with that basic premise, i.e., that the Board may

reconsider its approval of a reduction under § 7-213 up until the

time the reduction takes effect. When the Board votes on the

Governor’s proposed reduction, its actions are quasi-legislative in

nature. Judy, 331 Md. at 266. A body acting in a legislative or

quasi-legislative capacity, in turn, generally possesses the inherent

power to reconsider and rescind its actions until the relevant action

has been completed or the matter is otherwise beyond the control

of the body, provided that vested rights of third parties are not

violated and rescission is consistent with applicable law and the

rules governing the body. See Dal Maso v. Board of County

Comm’rs of Prince George’s County, 182 Md. 200, 206-07 (1943)

48 [106 Op. Att’y

(explaining that “boards and agencies to which legislative power

has been delegated . . . may undo, consider and reconsider their

action upon measures before them,” at least “before the rights of

third parties have vested” and “in the absence of statute or a rule to

the contrary”); see also State v. Womack, 29 P. 939, 942 (Wash.

1892) (“[T]he general rule is that a legislative or deliberative body

of any kind has power to reconsider any of its actions. When not

regulated by statute, the body has a right to adopt its own rules as

to the time when reconsideration can be moved.”); 4 McQuillin

Mun. Corp. § 13:75 (3d ed.) (“[T]he legislative body of [a

municipal] corporation, or any of its boards or departments,

possesses the unquestioned power to rescind prior acts[] and votes

at any subsequent time until the act or vote is complete, provided

vested rights are not violated, and that such rescission is in

conformity to the law applicable and the rules and regulations

adopted for the government of the body.”); Mason’s Manual of

Legislative Procedure § 451 (2010) (explaining that, although a

legislative body generally may reconsider its actions, “[a]n action

cannot be reconsidered when, for any reason, it is not possible to

cancel, nullify, or void the action previously taken”). 10

Applying those general principles here, neither § 7-213 nor

any other statute prohibits the Board from reconsidering its vote to

approve a reduction. It is also our understanding that the Board has

not adopted any formal procedures that would prohibit it from

reconsidering its vote. As such, the Board may exercise its usual

procedures for reconsideration, so long as the reduction has not yet

been carried out and the matter remains within the Board’s control.

Once the reduction has gone into effect, however, the Board

cannot undo the reduction. When the Governor reduces an

appropriation with the approval of the Board under § 7-213, the

10

Conversely, when an administrative body acts in a quasi-judicial

capacity and “is not otherwise constrained,” it generally “may reconsider

an action previously taken and come to a different conclusion upon a

showing that the original action was the product of fraud, surprise,

mistake, or inadvertence, or that some new or different factual situation

exists that justifies the different conclusion,” but not upon a “mere

change of mind.” Calvert County Planning Comm’n v. Howlin Realty

Mgmt., Inc., 364 Md. 301, 325 (2001). That standard might also apply

to quasi-legislative actions when the standard is made applicable by law.

See Kay Const. Co. v. County Council for Montgomery County, 227 Md.

479, 484, 486 (1962) (involving a zoning ordinance that allowed for

reconsideration of certain quasi-legislative actions when “good cause

[was] shown” and analogizing to the rule for reconsideration of quasi-

judicial decisions).

Gen. 38] 49

effect of the action is to extinguish the legal authorization to

withdraw those funds from the Treasury. See Judy, 331 Md. at 259-

60, 264-66; see also 76 Opinions of the Attorney General 330, 337-

39 (1991) (explaining that “when the funding for a position is

eliminated under the direct or delegated authority of Article III,

§ 52 of the Constitution, the action is a legislative act with the force

of law” and that following the budget reduction “no appropriation

would exist” for the position); cf. 21 Opinions of the Attorney

General 218, 219 (1936) (concluding, at a time when the Board

had primary authority over budget reductions, that when an

appropriation is reduced the amount of the reduction “reverts to the

General Treasury of the State”). At that point, the relevant action

has been completed, and there is no longer anything for the Board

to reconsider, as neither § 7-213 nor any other statute authorizes

the Board to restore an appropriation. 11 In other words, any attempt

by the Board to rescind its approval after the reduction has gone

into effect would be a legal nullity. 12

The next question, then, is when a reduction, as approved by

the Board, goes into effect. The usual practice has apparently been

to implement budget reductions as budget amendments under SFP

§ 7-209. As to when such a budget amendment takes effect—

thereby implementing the reduction and precluding any

reconsideration—Attorney General Curran advised in a footnote to

his 1991 letter that a budget amendment goes into effect on the

effective date stated in the amendment or, if the amendment is

silent about an effective date, when the Governor signs it. Curran

11

We need not decide when, in other contexts, an action is sufficiently

complete or beyond the control of a quasi-legislative body such that it

can no longer be reconsidered. That may vary from context to context.

12

As was the case in 1991, we are not called upon to address whether

a statutory scheme that authorized the Board to restore an appropriation

would be constitutional, because there is nothing in the statute that

provides for such a restoration. Nonetheless, we think it worthwhile to

offer a few observations. When the Governor reduces an appropriation

with the approval of the Board under § 7-213, the legal authorization to

withdraw those funds from the Treasury is eliminated. Judy, 331 Md. at

259-60. To the extent the act of restoring a previously reduced

appropriation would amount to a new appropriation, that action would

have to comply with the constitutional provisions governing the

withdrawal of money from the Treasury, namely Article III, § 32, which

prohibits the withdrawal of money from the Treasury except “in

accordance with an appropriation by Law,” and Article III, § 52, which

provides that any law appropriating money from the Treasury “shall be

either a Budget Bill, or a Supplementary Appropriation Bill.”

50 [106 Op. Att’y

Letter at 3 n.1. On this particular point, however, we reach a

different conclusion. Section 7-209(g) expressly states that “[a]n

amended appropriation for a program is effective when the

Governor sends notice of the amended appropriation to the

Comptroller.” Thus, by the terms of the statute, a reduction

implemented by budget amendment under § 7-209 takes effect

when the Governor sends notice to the Comptroller, and it is our

opinion that the Governor cannot provide otherwise by specifying

a different effective date.

That said, § 7-209(g) is controlling on the question of when a

reduction takes effect only if the reduction is processed as a budget

amendment under that section. Although that is the usual practice,

it does not appear that any provision of State law requires that a

budget reduction approved under § 7-213 be implemented through

a budget amendment under § 7-209 or that the procedures of § 7-

209 be followed in implementing budget reductions, which are

governed by a separate statutory provision.

If a budget reduction were to be processed in a different way,

without reference to the budget amendment procedures in § 7-209,

then the rule setting the effective date for budget amendments in

§ 7-209(g) would not apply. 13 In that event, consistent with what

Attorney General Curran suggested in his 1991 advice letter, the

reduction would likely go into effect on the effective date stated in

the document implementing the reduction or, if the document does

not specify an effective date, then on the date when the Governor

signs the document. See Curran Letter at 3 n.1; cf. Lapeyre v.

United States, 84 U.S. (17 Wall.) 191, 198-99 (1872) (plurality)

(holding, based on historical practice, that a presidential

proclamation took effect on the date that the President signed the

proclamation and filed it with the Secretary of State); City of

Atlanta v. Mays, 801 S.E.2d 1, 5 (Ga. 2017) (articulating a default

rule that “a municipal ordinance becomes effective when it is

signed and filed by the Mayor unless there is a constitutional or

13

Although you did not ask, and we do not decide, exactly what an

alternative process for implementing a reduction approved under § 7-213

might look like, we suspect that the Governor would have a fair amount

of discretion in how such a reduction might be implemented, though it

would presumably need to involve some form of notice to the

Comptroller, as the officer responsible for issuing warrants for payment

and charging them to appropriations. See SFP §§ 7-216, 7-220. Of

course, if the Governor’s overall reduction plan also involves moving

funds between programs as contemplated by a budget amendment under

§ 7-209 in addition to budget reductions, that aspect of the plan at least

would have to be processed as a budget amendment under § 7-209.

Gen. 38] 51

general statutory provision governing the matter”); 5 McQuillin

Mun. Corp. § 15:37 (3d ed.) (“The common rule in regard to

legislation is that it shall take immediate effect unless otherwise

provided.”); Letter from Richard E. Israel, Assistant Attorney

General, to Sen. Richard F. Colburn (July 31, 1997) (concluding

that common-law rule in Maryland under the Constitution of 1776

was that statutes took effect from the date of passage unless

otherwise specified).

B. Conditional Approval of Reduction

Your second question is whether the Board can condition its

approval of the Governor’s decision to reduce an appropriation

such that “the fulfillment of specified conditions” would

automatically rescind the Board’s approval or require that the

Board reconsider the reduction(s). Although you do not explain in

the request what “specified conditions” the Board might have in

mind, it is our understanding that the specified conditions would

likely relate to new factual information reflecting the fiscal health

of the State, such as actual revenue taken in by the State, the

amount of the next revenue estimates issued by the Board of

Revenue Estimates, or the projected budget shortfall based on those

revenue estimates. 14

In answering this question, the first issue that must be

resolved is whether the Board has any power to place conditions on

its approval at all. If the Board has the power to impose conditions

under at least some circumstances, the next step of the analysis is

to identify what limitations there are on the Board’s power. The

final step is to determine whether the Board can condition its

approval to provide for automatic rescission or to require that the

Board reconsider the reduction(s).

As to whether the Board can condition its approval, that is

primarily a question of legislative intent. See Board of Liquor

License Comm’rs for Baltimore City v. Hollywood Prods., Inc., 344

Md. 2, 10-11 (1996). The “primary source of legislative intent is,

14

The Board of Revenue Estimates consists of the Comptroller, the

Treasurer, and the Secretary of Budget and Management. SFP § 6-102.

It submits to the Governor and General Assembly each December,

March, and September a report that contains an itemized statement of

estimated State revenues. SFP § 6-106. For the purpose of preparing

those reports, the Board studies the revenue estimates prepared by the

Bureau of Revenue Estimates in collaboration with the Consensus

Revenue Monitoring and Forecasting Group. SFP §§ 6-104 to 6-106.

52 [106 Op. Att’y

of course, the language of the statute itself.” Tucker v. Fireman’s

Fund Ins. Co., 308 Md. 69, 73 (1986). Here, there is also the

further consideration of whether the statute, if read to permit the

Board to impose conditions, would be “inconsistent with” Article

III, § 52, and thus invalid under that constitutional provision. See

Judy, 331 Md. at 259-60.

Starting with the language of the statute, the text of SFP § 7-

213 is silent on this point. It neither expressly authorizes the Board

to approve a reduction with conditions nor expressly prohibits the

Board from doing so. We must thus determine whether the power

to impose conditions—including the specific type of condition

about which you ask—is implicit in the statutory scheme.

Although the Board in this context has only the powers and

duties granted to it by the Legislature, 76 Opinions of the Attorney

General at 49, the general rule in Maryland is that an agency, in

addition to having the powers expressly granted by statute, has all

of the powers that are necessary to, fairly implied by, or incident to

the exercise of its express powers and duties. See, e.g., River Walk

Apartments, LLC v. Twigg, 396 Md. 527, 543 (2007); Department

of Econ. & Emp’t Dev. v. Lilley, 106 Md. App. 744, 760 (1995); 73

C.J.S. Public Admin. Law & Proc. § 150. That is, an agency

generally has “reasonable discretion to carry out ‘fairly implied’

powers incident to those duties or authority expressly granted.”

Town of La Plata v. Faison-Rosewick LLC, 434 Md. 496, 523

(2013). 15 An agency may not, however, exercise any power which

is “inconsistent or out of harmony with” the statute being

15

Although some of our prior opinions state that implied powers must

be “necessary” to carry out the agency’s express powers and duties, see,

e.g., 76 Opinions of the Attorney General 137, 137-38 (1991), it does not

appear that strict necessity is required. Rather, the Court of Appeals

seems to use the terms “necessary,” “fairly implied,” and “incident to”

interchangeably when evaluating an agency’s implied powers. See

Twigg, 396 Md. at 543; Faison-Rosewick, 434 Md. at 523. Thus, the

term “necessary” apparently refers to something like reasonable

necessity. See Faison-Rosewick, 434 Md. at 523-24 (finding that an

officer had the implied power to exercise “reasonable means” to carry

out an express duty); Lilley, 106 Md. App. at 760 (“An expressed

legislative grant of power or authority to an administrative agency

includes the grant of power to do all that is reasonably necessary to

execute that power or authority.” (internal quotation marks omitted)); cf.

64 Opinions of the Attorney General 229, 231 (1979) (explaining in the

context of a delegation from an agency head to a subordinate that “a

delegation of authority includes not only express powers, but also those

necessarily implied and reasonably necessary to effectuate the express

powers granted to a delegatee”).

Gen. 38] 53

administered. Insurance Comm’r v. Bankers Indep. Ins. Co., 326

Md. 617, 624 (1992).

Under that standard, the extent of an agency’s implied powers

can sometimes depend on the breadth of the express powers

provided to that agency. See Thanner Enters. v. Baltimore County,

414 Md. 265, 279 (2010). When the General Assembly has

delegated broad express authority to an agency in an area, for

example, courts will typically construe the scope of the agency’s

implied powers in that area broadly as well. See, e.g., Lussier v.

Maryland Racing Comm’n, 343 Md. 681, 688 (1996); Christ ex rel.

Christ v. Maryland Dep’t of Nat. Res., 335 Md. 427, 440 (1994);

McCullough v. Wittner, 314 Md. 602, 610-12 (1989). By contrast,

when an agency has been delegated only narrow authority by the

Legislature, the agency’s implied powers may be narrower. See,

e.g., 62 Opinions of the Attorney General at 724-28 (concluding

that the Board of Public Works did not have the implied power to

require an agency to negotiate with a particular firm, because the

statute “committed to the [agency]” the responsibility to conduct

the selection process and limited the Board’s role to merely

approving or disapproving the agency’s proposed firm). And at the

far end of the spectrum, when the Legislature has decided to

“closely control by statute even the more detailed aspects” of the

agency’s authority, that sort of “comprehensive statutory scheme”

suggests that the agency’s implied authority is “more

circumscribed than the typical administrative body.” Hollywood

Prods., 344 Md. at 13 (involving a local liquor board).

The touchstone for determining whether an agency has the

implied authority to take a particular action is ultimately “the

General Assembly’s intent in empowering an agency and the

statutory scheme under which the agency acts.” Thanner Enters.,

414 Md. at 279 (quoting Hollywood Prods., 344 Md. at 11); see

also Lussier, 343 Md. at 686 (“[I]n determining whether a state

administrative agency is authorized to act in a particular manner,

the statutes, legislative background and policies pertinent to that

agency are controlling.”).

The basic question here, then, is whether the power to place

conditions on its approval is “fairly implied” from the Board’s

power to approve or disapprove a reduction to the budget proposed

by the Governor under SFP § 7-213. To answer that question, we

look first to the general rules governing the power of administrative

agencies to impose conditions and second to how those general

rules might apply to the more specific context at hand.

54 [106 Op. Att’y

As a general rule, the federal courts and courts in other states

have often held that “[t]he power to approve implies the power to

disapprove and the power to disapprove necessarily includes the

lesser power to condition an approval.” Southern Pac. Co. v.

Olympian Dredging Co., 260 U.S. 205, 208 (1922) (concluding

that the Secretary of War had the power to impose a condition on

his approval to construct a bridge over the waters of the United

States in light of his power to disapprove construction of the bridge

entirely); see also Mello v. License Comm’n of Revere, 759 N.E.2d

1201, 1203 (Mass. 2001); State v. Crown Zellerbach Corp., 602

P.2d 1172, 1175 (Wash. 1979) (en banc); Turf Paradise, Inc. v.

Arizona Racing Comm’n, 772 P.2d 595, 598 (Ariz. Ct. App. 1989);

N.C. Op. Att’y Gen., 2003 WL 1154487, at *4 (Feb. 18, 2003).

Although the Maryland courts have not yet articulated that

rule in precisely that way, they have recognized the same general

principle, or at least a similar principle, in various contexts. See,

e.g., In re Diener, 268 Md. 659, 683 (1973) (concluding that the

grant of the “greater power” to the Commission on Judicial

Disabilities under the Constitution to recommend that a judge be

removed “impliedly includes the lesser” power to recommend that

a judge be sanctioned); County Council of Montgomery County v.

Lee, 219 Md. 209, 215 (1959) (concluding that “the right to grant

or withhold permission for the paving of Galena Road . . . carries

with it the right to prescribe reasonable terms and conditions upon

which the permit would issue”); Blaker v. State Bd. of Chiropractic

Examiners, 123 Md. App. 243, 264-65 (1998) (concluding that the

power of the Board of Chiropractic Examiners to place a licensee

on probation, which was expressly conferred on the Board,

necessarily included the implicit authority to place terms and

conditions on probation, since without that authority the Board

could not monitor licensees and protect the public from harm).

A variation on that general principle has been applied by the

Court of Appeals (and by our Office) in defining the scope of the

General Assembly’s constitutional powers to “strike out or reduce”

items in the budget bill. More specifically, both the Court of

Appeals and our Office have long reasoned that the General

Assembly’s power to “strike out or reduce” items of appropriation

includes the lesser power “to condition or limit the use of money

appropriated, or the use of the facility for which the money is

appropriated.” Bayne v. Secretary of State, 283 Md. 560, 574

(1978); see also Kopp v. Schrader, 459 Md. 494, 509 (2018); 37

Opinions of the Attorney General 139, 141-42 (1952). Thus, in

acting on the budget bill, the General Assembly may approve a

proposed item of appropriation by enacting the bill without

Gen. 38] 55

amendment, it may disapprove a proposed item in whole or in part

by exercising its express power to “strike out or reduce,” or it may

exercise its lesser power to approve a proposed item subject to

limitations or conditions, with the caveat that the power to

condition appropriations is constrained to some degree by the

purpose of Article III, § 52 and the design of the constitutional

budget process. 16 See also 101 Opinions of the Attorney General

35, 55 (2016) (recognizing that, as to local governments too,

“[n]ormally, the authority to appropriate funds—and to reduce or

eliminate an appropriation—includes an implicit authority to set

conditions”).

More to the point, we have also found that similar principles

apply to the Board of Public Works itself, concluding in a series of

opinions that the Board had implied authority under various

statutory schemes to impose conditions or other requirements in

light of its express authority to approve or disapprove actions

pursuant to those statutes. See 64 Opinions of the Attorney General

118, 121-23 (1979) (concluding that the Board of Public Works,

given its broad powers over the school construction program, “may

condition the acceptance of funds [by local jurisdictions] under the

[program] in any manner that it considers necessary to assure the

proper operation of the program and the prudent expenditure of

State funds”); 62 Opinions of the Attorney General 743, 747 (1977)

(concluding that, because the Board of Public Works had the power

“to discharge a portion of the indebtedness of . . . community

colleges” under a statute allowing it to settle obligations owed to

the State, the Board “was also empowered to condition its decision

in any manner reasonably designed to further the public interest”

behind the statute); 61 Opinions of the Attorney General 491, 492,

494 (1976) (concluding that a statute that allowed the University of

16

To be valid, a condition or limitation (1) must be “directly related

to the expenditure of the sum appropriated,” (2) may not “in essence,

amend either substantive legislation or administrative rules adopted

pursuant to legislative mandate,” and (3) may be “effective only during

the fiscal year for which the appropriation is made.” Bayne, 283 Md. at

574; see also Schrader, 459 Md. at 509. This prohibition on “legislating

in the budget,” though not expressly articulated in the Constitution, is

grounded in the limited function of the budget bill, which is to

appropriate money, not to legislate generally, the General Assembly’s

limited power to strike out or reduce items of appropriation, and the fact

that the budget bill, unlike substantive legislation, is not subject to veto

by the Governor. Schrader, 459 Md. at 507, 509-10.

56 [106 Op. Att’y

Maryland to expend certain surplus revenues “only if and as it

secures the written approval of the Board of Public Works”

authorized the Board to impose certain “requirement[s]” over the

expenditure of those revenues).

The general principle on which those court decisions and

opinions of the Attorney General rely, however, is not absolute.

See, e.g., Board of Liquor License Comm’rs for Baltimore City v.

Fells Point Cafe, Inc., 344 Md. 120, 135-37 (1996) (concluding

that the liquor board’s power to grant or transfer a liquor license

did not include the power to impose restrictions on the license,

because liquor boards do not have broad implied powers under the

comprehensive legislative scheme governing such boards). 17 The

touchstone, as with all questions about the scope of an agency’s

implied powers under a statute, remains “the General Assembly’s

intent in empowering an agency and the statutory scheme under

which the agency acts.” Thanner Enters., 414 Md. at 279. That is,

we are guided by the “fundamental premise” that “the actions of an

administrative agency must be consistent with the statute that

grants it the authority to act.” 70 Opinions of the Attorney General

135, 135 (1985).

The power of an agency to disapprove thus may imply the

“lesser” power to approve with conditions, at least as a general rule,

but only if the grant of such an implied power to the agency would

be consistent with the purpose of the statute, with the structure of

the broader statutory scheme, and with the agency’s role under the

statute. In particular, the breadth of the agency’s express authority

remains an important factor in determining the General Assembly’s

intent as to the scope of implied powers. See Thanner Enters., 414

Md. at 279. And depending on the circumstances, it may also be

less likely for an agency to have implied powers when those

implied powers would conflict with or intrude upon express powers

vested in another entity or official. See 96 Opinions of the Attorney

General 36, 47-48 (2011) (reasoning that a county’s power to

create offices does not imply power to call special election to fill

them, in part because General Assembly has reserved the power to

regulate elections); 62 Opinions of the Attorney General at 724-28

(concluding that Board of Public Works lacked authority to order

negotiations between the Transit Administration and particular

17

See also Michael Herz, Justice Byron White and the Argument That

the Greater Includes the Lesser, 1994 B.Y.U. L. Rev. 227, 242, 244-47

(1994) (pointing out that the argument that the greater power includes

the lesser is not always logically sound, including, for example, when

the purported “lesser” power is not, in fact, a subset of the “greater” one).

Gen. 38] 57

bidders because the Board could not “intrud[e] into the selection

process which the Legislature intended to be conducted” by the

Transportation Professional Services Selection Board). 18

Under the budget reduction statute that is at issue here, the

Board’s role is a narrow one: to approve or disapprove the

reductions proposed by the Governor. See Curran Letter at 3. It is

the Governor, rather than the Board, who has been given the

discretion under the statute to determine which reductions to

propose. See SFP § 7-213 (allowing the Governor, “with the

approval of the Board of Public Works, [to] reduce, by not more

than 25%, any appropriation . . . that the Governor considers

unnecessary” (emphasis added)). The Board merely acts as a

check, albeit an important one, on the Governor’s broad discretion.

See Judy, 331 Md. at 264 (characterizing Board approval as one of

the “safeguards” that “circumscribe the Governor’s exercise of

authority while allowing a necessary degree of flexibility”). The

Board’s role in approving budget reductions, relative to the

Governor, is thus not directly comparable to the General

Assembly’s power to “strike out or reduce” items in the Governor’s

budget proposal. In that context, the General Assembly may decide

for itself which items to strike or reduce and the amount of any

reductions, see Md. Const., Art. III, § 52(6), whereas the Board is

limited under SFP § 7-213 to approving or disapproving the

reductions proposed by the Governor.

The narrowness of the Board’s role under the budget

reduction statute is perhaps further underscored by the fact that

predecessor versions of the statute, enacted as part of the budget

bills in 1933 and 1935, had vested the Board with the plenary

power to “reduce or eliminate any appropriation which it may deem

unnecessary,” rather than vesting the Governor with the primary

responsibility for making such reductions and giving the Board a

secondary role in approving the reductions. See Part I.B, supra

(citing 1933 Md. Laws, ch. 597, § 11; 1935 Md. Laws, ch. 92,

§ 11). That shift may suggest a conscious choice on the

Legislature’s part to limit the Board’s power and to maintain the

Governor’s “preeminent role,” Judy, 331 Md. at 259, in the budget

process, constrained only by the up-or-down approval or

disapproval of the Board.

18

But see Board of Physician Quality Assurance v. Banks, 354 Md.

59, 75 (1999) (noting that, depending on the statutes at issue, “[m]ore

than one administrative agency can have jurisdiction over a matter”).

58 [106 Op. Att’y

Under this particular statute, therefore, the Board has far more

limited powers than was the case in our prior opinions finding that

the Board had the implied power to impose conditions on its

approval of certain actions. See 64 Opinions of the Attorney

General at 121-23 (involving the Board’s “plenary and supreme”

authority over the disposition of surplus schools); 62 Opinions of

the Attorney General at 743 (involving the Board’s broad authority

to settle obligations owed to the State); cf. 61 Opinions of the

Attorney General at 492-94 (involving a statute that allowed the

University of Maryland to expend certain funds only “if and as it

secures the written approval of the [Board],” which implied an

intent to give the Board at least some control (emphasis added)).

That narrower role suggests that the Board might not have the

same implied power to impose conditions on its approval in this

context as it has in many others. For example, we found that the

Board’s implied powers were more narrow under a statute that

granted the Board the narrow role of approving or rejecting the

contractor proposed by an agency, at least in part because the

decision about which firm to recommend to the Board was

committed to the discretion of that other agency (the Transportation

Professional Services Selection Board) under a statute that had

“precisely set out” the mechanics of the scheme. See 62 Opinions

of the Attorney General at 723-28. In our view, given the Board’s

narrow role under the statute, it did not have the implied power, in

rejecting a proposed firm, to direct the agency to negotiate with the

“second most qualified” bidder, as such an act would “intrud[e]”

into the selection process that had been committed to the agency. 19

19

Although that opinion made clear that the scope of the Board’s

implied powers were narrower than under some other statutes, it did not

resolve whether the Board had the power to impose conditions on its

approval and, if so, what kinds of conditions. In fact, the opinion noted in

passing that the Board had previously imposed a condition on its approval

of a contract under the statute, providing that the contract be subject to the

approval of the federal agency that had given grant funding for the project,

without questioning the Board’s power to impose that condition. 62

Opinions of the Attorney General at 721. However, there was no

discussion about the Board’s authority to impose such a condition, and the

need for such a condition might have been implicit in the federal scheme,

rather than the State scheme. See id. (noting that absent the approval of

the federal entity, “there will be no federal participation in the expense of

the [relevant part of the project], which would then have to be funded

solely by the State”). In the interest of completeness, we also note here

that we advised in that opinion that the Board could provide “guidance” to

the agency for it to consider when choosing another firm after the first firm

was rejected, even though the Board could not require the agency to

recommend a particular firm. Id. at 728.

Gen. 38] 59

Id. The statutory scheme that we considered in that opinion is

somewhat similar to the statutory scheme at issue here, under

which the decision to propose certain reductions is committed to

the discretion of the Governor and the Board’s role is limited to

approving or disapproving the proposed reductions.

What is more, the precedents cited above for the principle that

the power to disapprove implies the power to impose conditions

also seem to involve administrative schemes under which the

agency in question had far broader regulatory or supervisory

authority than does the Board under SFP § 7-213. See, e.g., Lee,

219 Md. at 215 (involving Montgomery County’s “full and

complete jurisdiction over its streets and roads”); Blaker, 123 Md.

App. at 264-65 (involving the broad authority of the Board of

Chiropractic Examiners to license and discipline practitioners);

accord Southern Pac. Co., 260 U.S. at 208 (involving the broad

powers of the Secretary of War over the waters of the United

States); Mello, 759 N.E.2d at 1203 (involving a broad licensing

power); N.C. Op. Att’y Gen., 2003 WL 1154487, at *4 (involving

statutory scheme that granted insurance commissioner “broad

powers to fulfill his obligations”). Although that does not mean

that agencies without as broad authority will never have the implied

power to impose conditions on their approval, it does mean that the

law is not clear as applied to the Board’s especially narrow role

under the budget reductions statute.

If the Board had authority to impose conditions on its

approval of the Governor’s proposed budget reductions, that might

also raise constitutional questions, at least under some

circumstances. As noted above, the Court of Appeals found that

SFP § 7-213 is a valid exercise of the General Assembly’s power

to enact “such laws not inconsistent with” Article III, § 52 as may

be “necessary and proper” to carry out its provisions because the

statute “recognizes and perpetuates the preeminent role of the

Governor in the budget process” and “merely allows the Governor

to accomplish at the end of the budget process what he is required

to do when he submits his initial budget,” i.e., to ensure that

expenditures do not exceed estimated revenues. Judy, 331 Md. at

259. Assuming that the Board were to have the power to impose

conditions on its approval, however, that might permit the Board to

interfere with or intrude upon the Governor’s preeminent role in

the budget process under the Constitution. That is not to say every

condition would itself violate Article III, § 52. But it would be

necessary to determine whether any particular proposed condition

is “inconsistent with” Article III, § 52, thereby raising a constitutional

60 [106 Op. Att’y

question every time a member of the Board proposed a condition.

Because courts will typically construe ambiguous statutes to avoid

constitutional questions, the constitutional concerns here also

weigh in favor of an interpretation that the Legislature did not

intend that the Board have the power to condition its approval. See,

e.g., G. Heileman Brewing Co. v. Stroh Brewery Co., 308 Md. 746,

763 (1987) (“[I]f a legislative act is susceptible of two reasonable

interpretations, one of which would not involve a decision as to the

constitutionality of the act while the other would, the construction

which avoids the determination of constitutionality is to be

preferred.” (internal quotation marks omitted)).

Given the narrow role that the Board plays under SFP § 7-

213, the Governor’s broad authority in the budget context, and the

canon of constitutional avoidance, we have serious doubts that the

General Assembly intended to grant the Board the implied

authority to impose conditions on its approval of reductions to an

appropriation under SFP § 7-213. 20 Put another way, considering

all of those various factors together, had the General Assembly

intended the Board to be able to impose conditions under this

particular statutory scheme, our sense is that the Legislature likely

would have done so expressly, as it has done under at least some

other statutes that confer powers on the Board. See, e.g., Md. Code

Ann., Envir. (“EN”) § 16-202 (granting the Board the power to

impose State wetlands licenses on “terms and conditions the Board

20

Historical practice also weighs against a conclusion that the Board

may impose conditions on its approval. We are aware of only one

instance when the Board took an action that might arguably be viewed

as imposing a condition on its approval under § 7-213. In that instance,

the Board approved the Governor’s proposed reductions in part but also,

among other things, rejected some of the cuts in part and voted to

“transfer” the money that had been restored to a particular grant program.

See Transcript of the Board of Public Works Meeting (Sept. 30, 1992).

That action could be viewed as a partial approval of the reductions with

the condition that the Governor transfer certain funds to another

program. However, the Governor ultimately agreed to the actions

recommended by the other Board members—voting to approve them,

see id.—so it is not clear whether they were indeed conditions on the

Board’s approval or whether the Board simply persuaded the Governor

to take an action that would have been within his authority. In fact, a

prior opinion of the Attorney General suggests that the Board would not

have been able to unilaterally impose such a condition. Cf. 21 Opinions

of the Attorney General at 218-19 (advising that, when the Board had the

primary authority to reduce or eliminate appropriations under the

predecessor to SFP § 7-213, the Board could not require that the amount

saved via the reduction be devoted to a particular purpose).

Gen. 38] 61

determines”); EN § 9-422 (allowing the Board to impose

conditions in approving financial assistance for certain water

supply facilities); SFP § 10-307 (allowing the Board to impose

conditions related to the transfer of geothermal resources). 21

Still, we cannot entirely dismiss the possibility that a court

would find that the Board has some limited authority to impose

conditions on its approval, especially in light of the general

principle that the power to disapprove an action often includes the

power to approve conditionally. Any authority that the Board

might have, however, would likely be extremely narrow, in

keeping with its limited role under the statute and to avoid

interfering with the Governor’s constitutional role over the budget

or conflicting with Article III, § 52.

As a starting point, any power to impose a condition would

have to be consistent with the general purpose of § 7-213 and the

express powers conferred on the Board. See, e.g., Lussier, 343 Md.

at 686 (“[I]n determining whether a state administrative agency is

authorized to act in a particular manner, the statutes, legislative

background and policies pertinent to that agency are controlling.”);

Bankers, 326 Md. at 624 (holding that an agency may not exercise

any power that is “inconsistent or out of harmony with” the statute

being administered). Here, in light of the purpose of § 7-213 and

the limited grant of authority to the Board under that statute, the

Board’s power to condition, assuming it can impose conditions at

all, would have to be narrowly construed as well.

The primary purpose of § 7-213 is to provide a vehicle for

controlling State expenditures after the budget bill has been enacted

so that the State can “accommodate an unexpected decrease in

anticipated State revenues and . . . maintain a balanced budget.” 65

Opinions of the Attorney General at 48. And the limited power

21

To be clear, we do not express an opinion on any other statutes that

provide the Board with authority to approve or disapprove a particular

agency’s decision without expressly granting the power to impose

conditions. See, e.g., Md. Code Ann., Econ. Dev. § 10-212; Md. Code

Ann., Nat. Res. § 5-904; Md. Code Ann., Transp. § 6-303. As we have

said, the ultimate inquiry must be based on “the General Assembly’s

intent in empowering an agency and the statutory scheme under which

the agency acts,” Thanner Enters., 414 Md. at 279, which will

necessarily depend on the specific statute at issue. We also do not mean

to suggest that an agency needs to have explicit statutory authority to

conform its conduct to other laws so as to ensure that it does not perform

its powers or duties in an unlawful manner.

62 [106 Op. Att’y

delegated to the Board under that statute is to approve (or not

approve) the reduction of an appropriation that the Governor

“considers unnecessary.” Assuming that the Board has the power

to approve a reduction under § 7-213 subject to a condition, the

condition would have to be consistent with that purpose and the

Board’s limited role.

Based on those principles, we can say with confidence that

certain conditions would clearly be beyond the Board’s authority

to impose. A condition that makes substantive policy changes, for

example, or that has the effect of substituting the Board’s budget

reduction plan for the Governor’s plan clearly would be

inconsistent with the statute, which vests in the Governor the

exclusive power to decide which appropriations to propose as

“unnecessary.” 22 Similarly, a condition that calls for the Governor

to take other budgetary actions or to implement other cost savings

measures would, in our view, clearly be impermissible. The Board

also could not require that the amount saved via a budget reduction

be rededicated to another purpose. See 21 Opinions of the Attorney

General at 218-19 (reasoning that such a condition would be

impermissible, even at a time when the Board had primary

authority over budget reductions). And, of course, a condition that

is “inconsistent with” Article III, § 52 would not be a valid exercise

of the Board’s power under SFP § 7-213.

Another clear limiting principle is that the Board may not

impose a condition that, in effect, delegates to some other entity or

person the discretionary function of approving (or not approving)

a reduction proposed by the Governor. That approval function is

specifically conferred on the Board by the budget reduction statute,

and an agency may not wholly delegate discretionary powers

specifically conferred upon in it by statute without express

authority from the General Assembly. 61 Opinions of the Attorney

General 734, 735 (1976) (although the Board could delegate

certain discretionary functions to its administrator—provided that

the Board gave appropriate preliminary instruction and the actions

were subject to subsequent Board review—it could not wholly

delegate the duties that were specifically conferred upon it by

statute); see also 73 Opinions of the Attorney General 295, 302

(1988) (explaining that “administrative agencies cannot, in the

22

Thus, for instance, a condition that the Governor bring additional

reductions to the Board for its approval likely would be beyond the

Board’s power. In practice, of course, the other two members of the

Board may be able to persuade the Governor to modify the reduction

plan. We note, however, that a substantive modification might require

new notice under SFP § 7-213(a)(2).

Gen. 38] 63

absence of express legislative authorization, delegate powers or

functions, particularly those requiring the exercise of discretion or

judgment, to others”); 50 Opinions of the Attorney General 180,

183 (1965) (advising that the Board of Trustees of the State

Colleges may not delegate to its executive director “any of those

powers and duties specifically conferred upon it by statute”).

Having discussed some conditions that would clearly be

beyond the Board’s authority, the more difficult question is what

conditions might be within the Board’s authority—assuming that

the Board has the power to impose any conditions in the first

place—and whether that authority includes the type of condition

about which you have asked, namely, one that provides for

automatic rescission or reconsideration of the Board’s approval

upon the occurrence of a specified event. For example, could the

Board impose a condition providing for automatic rescission or

reconsideration of its approval if the next revenue projections by

the Board of Revenue Estimates come in above a certain threshold

number?

Given the Board’s narrow role under the statute, our view is

that, at the most, the Board might have the power to impose

procedural conditions that are directly related to the narrow

decision before the Board (i.e., the decision to approve or not

approve the reduction or reductions proposed by the Governor),

that are merely derivative of that narrow authority, and that do not

concern any actions or matters unrelated to the specific reduction(s)

under consideration. See Thanner Enters., 414 Md. at 279

(explaining that the scope of implied powers depends on “the

General Assembly’s intent in empowering an agency and the

statutory scheme under which the agency acts”).

In theory, that standard might permit the Board to impose a

condition providing for automatic rescission of its approval if

actual or projected State revenues are above a certain level such

that the reductions no longer appear to be needed. 23 Such a

condition, at least arguably, is directly related to the Board’s

narrow decision under § 7-213 and is merely derivative of the

23

However, as noted above, in adopting a condition based on revenue

estimates, as opposed to actual receipts, the estimates would probably

need to be derived using objective criteria to lessen the risk that a court

might view the condition as an impermissible delegation of the Board’s

discretionary power.

64 [106 Op. Att’y

Board’s power to disapprove the proposed reductions in their

entirety. 24 After all, the availability of funds to support the

appropriation seems directly relevant to the decision of whether or

not to approve the reduction. Such a condition also does not

impinge on the Governor’s authority under the statute to decide

which reductions to propose, nor does it seem to interfere with the

Governor’s broader control over the budget process, at least not any

more than would a decision of the Board to disapprove the

reductions in their entirety, an action which is unquestionably

within the Board’s authority. 25

24

You also have asked whether the Board could impose a condition

providing for automatic reconsideration upon the occurrence of a

specified event. It is not entirely clear to us what the Board means by

automatic reconsideration in this context. If the Board is contemplating

automatic reconsideration of its own vote to approve the proposed

reduction (with the condition that the vote will be automatically

reconsidered upon the occurrence of some specified condition), that

might be inherently self-contradictory; reconsideration of an earlier vote

ordinarily nullifies the original vote, see Mason’s Manual § 468, which

in this case would be the vote that mandated reconsideration in the first

place. However, the Board seems more likely to be contemplating a

condition providing that (1) the Governor may not implement the

reduction until it can be determined if some future contingency is

satisfied and (2) if the contingency is satisfied, the Governor can proceed

with the reduction, but if the contingency is not satisfied, the Governor

can proceed with the reduction only if Board takes a new vote

authorizing the reduction. That latter type of condition would likely be

subject to the same analysis as a condition providing for automatic

rescission. That is, if a condition providing for automatic rescission of

the Board’s approval on certain grounds would be permissible, then this

type of condition would likely also be permissible. But to the extent that

the Board is further contemplating that it would be bound to put the

matter back on the Board agenda upon the occurrence of the future event,

even if the Governor wishes to withdraw his proposed reduction, for

example, that would raise additional issues. We doubt that the Board

could preclude the Governor from withdrawing his proposal under those

circumstances, and there might also be questions as to whether the Board

could bind itself to take a particular action in the future.

25

If the imposition of such a condition were to create a prolonged

period of uncertainty as to the amount of appropriations that will

ultimately be available to the affected agencies, the condition could

potentially be in tension with the statutory purposes of allowing the State

to maintain a balanced budget and to have the necessary flexibility to

respond to unanticipated fiscal conditions, as well as with the idea of

gubernatorial primacy in the budget process. We are assuming here that

it would be a relatively short period of time until it can be determined

Gen. 38] 65

It is not clear, however, what practical use such a condition

would have unless the Board were also to impose a condition

delaying the implementation of the reduction or the effective date

of the approval until it can be determined whether the condition

requiring automatic rescission has (or has not) occurred.

Otherwise, if the reduction has already been implemented, the

Board would not be able to rescind or reconsider its approval; the

appropriation will already have been reduced as a matter of law,

and it could not be added back to the budget by the Board. See Part

II.A, supra. As to whether the Board could require that the

approval not go into effect (or the reduction not be implemented)

until a later date, it is at least possible that too might be the type of

narrow, procedural condition that would not conflict with the

statutory design. It is directly related to, and derivative of, the

Board’s authority to approve the reduction, in that it simply

identifies the date on which the Board’s approval shall become

effective, after which the Governor may implement the reduction,

and it is not tied to actions or matters unrelated to the reduction

under consideration. 26

All of that said, the Board could achieve the same result (and

avoid the risk that its conditions would be invalidated) simply by

deferring its decision on the Governor’s proposed reduction or by

declining to approve the reduction and encouraging the Governor

to bring the matter back to the Board at a later date, 27 during which

time the Governor and other members of the Board could further

evaluate the State’s fiscal situation and the need for making the

reduction based on the most up-to-date information. That action

would unquestionably be within the Board’s authority, would seem

whether the condition will or will not be met. If not, that could raise an

additional question that would need to be considered.

26

Although there is little practical difference between a condition

delaying the effective date of the approval and one delaying the

implementation of the approval until a specified time, a condition that

directly prohibits the Governor from implementing a reduction that has

been approved might raise more questions than one that merely delays the

effective date of the approval. That is because, while the statute grants the

Board the power to approve or disapprove the reductions, it does not

expressly give the Board any role in implementing the reductions once

approved. It could be argued, therefore, that a condition directly

prohibiting the Governor from implementing a reduction injects the Board

into part of the process that has been left to the Governor under the statute.

27

Nothing in statute precludes the Governor from proposing a

reduction previously disapproved by the Board.

66 [106 Op. Att’y

to achieve the same result as the conditions about which you asked,

and would rest on far safer legal ground. Thus, even if there might

be an argument that the Board could impose a condition to delay

the effective date of its approval or provide for automatic rescission

under certain limited circumstances, we would advise that the

Board avoid taking such an action and, instead, defer a vote on the

proposed reductions (or decline to approve the proposed reductions)

when there is a need to wait for more information.

III

Conclusion

To summarize, we conclude that the Board may reconsider

and rescind its approval of a reduction under SFP § 7-213 up until

the time the reduction takes effect. We have serious doubts,

however, that the Board may condition its approval of a reduction

under § 7-213. And even assuming the Board has the implicit

power to place some conditions on its approval, that power would

be extremely narrow. Although we cannot say with certainty that

the Board lacks the power to impose a condition providing for

automatic rescission of its approval upon the occurrence of a

specified condition, at least if that condition were directly related

to the narrow decision before the Board and if the reduction had

not yet been implemented, we advise the Board against such an

approach. The Board can achieve the same result, without the same

legal risks, simply by deferring a vote on the reduction (or declining

to approve the reduction) until it is satisfied that it has the

information it needs to make a fully informed decision.

Brian E. Frosh

Attorney General of Maryland

David W. Stamper

Assistant Attorney General

Patrick B. Hughes

Chief Counsel, Opinions and Advice