Could Maryland's Governor issue a binding executive order setting statewide development policy that agencies had to follow?

Plain-English summary

Maryland's Secretary of State Planning asked the Attorney General about a proposed executive order, drafted by the Governor's State Development Council, that would set statewide policies to guide physical and economic development decisions. The questions covered whether the Governor had authority to issue it, what legal effect it would have on state agencies, whether it could require agencies to draft conflicting statutes and regulations for change, whether private parties could use it to challenge agency decisions, and whether a court could treat noncompliance with it as a basis for striking down agency action. The opinion concluded that the Governor did have statutory authority to issue the order, that the order would carry the force of law without overriding existing statutes or regulations, that its terms were "directory" rather than "mandatory" (meaning agencies had to consider its policies and identify conflicting laws but noncompliance would not itself invalidate agency action), and that the order would not create private rights allowing someone to sue or to use noncompliance as a ground for overturning an agency decision in court.

Currency note

This opinion was issued in 1982. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The opinion applied Article 41 of the 1982 Maryland Code (governing the Governor's executive powers), the Maryland Administrative Procedure Act provisions on judicial review of agency action as they stood in 1982, and analyzed the specific text of a 1982 draft executive order that was ultimately issued as Executive Order 01.01.1982.08. Maryland's executive-order statutes, administrative procedure law, and the specific development-policy order discussed here have all had decades to change or be superseded since 1982. Anyone researching the legal effect of a current Maryland executive order should verify the current statutory authority and text of that order rather than relying on this opinion's 1982 analysis.

Common questions

Did the Attorney General think the Governor had the power to issue this kind of order?
Yes. The opinion found sufficient authority in three sections of Article 41 of the Maryland Code (sections 15, 15C, and 15CA), which together give the Governor broad authority to supervise and direct executive branch agencies, to establish interagency task forces, and to issue guidelines for state agencies through executive orders.

Would agencies actually have to follow the order, or could they ignore it?
The opinion said the order's terms were "directory" rather than "mandatory," meaning failure to follow it would not automatically invalidate agency action, but agencies still had to identify and draft proposed changes to conflicting statutes and regulations and consider the order's policies in their decision-making. The opinion noted an agency head who disregarded the order risked their job even though the order itself carried no formal legal sanction.

Could someone sue a state agency for violating this executive order?
No, according to the opinion. The draft order expressly stated it did not create any private cause of action, and the opinion concluded that this language, combined with the order's discretionary and directory character, meant private parties would lack standing to sue based on a claimed violation of the order and could not use noncompliance with it as an independent ground to have a court strike down an agency decision.

Did the final version of the order match what the Attorney General analyzed?
Largely, with one change the opinion itself recommended. An Editor's Note attached to the opinion states that when Governor Hughes issued Executive Order 01.01.1982.08 on May 28, 1982, its paragraph 4 was revised to expressly state that the order did not confer "any right, privilege, or status on any private party cognizable by a court in any proceeding," incorporating the clarification the opinion had suggested.

Background and statutory framework

In 1980, Governor Hughes established a seven-member State Development Council by Executive Order 01.01.1980.01, tasking it with recommending the content of a future executive order setting policies to guide state resource allocation for physical and economic development across seven areas, including capital budget facility location, transportation policy, sewage and environmental standards, critical areas review, business and housing loan targeting, outdoor recreation planning, and targeting of state and federal aid. The Council prepared a draft order (the "Draft Order") that, to the extent not inconsistent with law, would guide state agency decisions on investments, financial and technical assistance, plan review, and other official acts, listing 72 economic, environmental, agricultural, urban, energy, and development policies to be promoted, encouraged, or prioritized, and directing agencies to identify existing programs needing statutory or regulatory changes and to draft those changes.

On the Governor's authority to issue the order, the opinion found sufficient statutory basis in Article 41, section 15 (vesting the Governor with supervision and direction over executive branch agencies, implementing Article II, section 1 of the Maryland Constitution), section 15C(c) (authorizing the Governor to establish interagency task forces such as the State Development Council), and section 15CA(b)(1)(v) and (b)(1)(iii) (defining "executive order" to include written orders promulgating rules of conduct, procedure, or guidelines for state agencies). The opinion cited its own prior conclusions in 64 Opinions of the Attorney General 180 (1979), upholding an executive order creating the Governor's Commission on Law Enforcement and the Administration of Justice under the same statutory sections, and 61 Opinions of the Attorney General 219 (1976), upholding an order extending grievance procedures to unclassified state employees as an exercise of the Governor's management power to supervise and direct executive agencies.

On legal effect, the opinion explained that a statutorily-authorized executive order carries the force of law but, because the Draft Order expressly applied only "to the extent not inconsistent with law," it could not override existing statutes or regulations. The opinion distinguished "directory" from "mandatory" provisions, citing 1A Sutherland, Statutory Construction, for the rule that violating a directory provision carries no automatic legal consequence while violating a mandatory one invalidates the underlying action, and concluded the Draft Order was directory because it spoke in terms of "guiding" agency action, disclaimed private causes of action, and provided no sanction for noncompliance. Quoting the Pennsylvania case Borough of Pleasant Hills v. Carroll, the opinion emphasized that a directory provision is still meant to be followed, just without an invalidating effect if it is not, meaning agencies still had to identify and draft conflicting statutory and regulatory changes and consider the order's policies in decision-making, and an agency head who disregarded it risked professional consequences even without a formal legal sanction.

On private rights and standing, the opinion reasoned that because the Draft Order expressly disclaimed creating any private cause of action and required only discretionary implementation, a court could not use it as the basis for an "enforcement" action against a state agency, citing Brack v. Wells and general mandamus treatise authority, and that ordinary standing rules would bar a litigant from claiming injury within the "zone of interests" the order protected, citing Sierra Club v. Morton. On whether a court could treat noncompliance with the order as a factor supporting reversal of agency action under the judicial review provisions of Article 41, section 255(f) of the Administrative Procedure Act, the opinion concluded a reasonable reading of the Draft Order would preclude that use, but acknowledged a court might disagree and recommended the order be amended to expressly state it conferred no right, privilege, or status cognizable by a court, drawing on similar language in the preamble to Chapter 575, Laws of Maryland 1978 (the Minority Business Enterprise Law).

An Editor's Note attached to the opinion confirms that Governor Hughes issued the order as Executive Order 01.01.1982.08 on May 28, 1982, effective June 1, 1982, and that its paragraph 4 incorporated the opinion's suggested clarification, stating the order was "not intended to and may not be construed to confer any right, privilege, or status on any private party cognizable by a court in any proceeding."

Citations

Statutes:

• Md. Const. art. II, §1
• Article 41, §15
• Article 41, §15C(c)
• Article 41, §15CA(b)(1)(v)
• Article 41, §15CA(b)(1)(iii)
• Article 41, §255(f)
• Chapter 575, Laws of Maryland 1978
• Executive Order 01.01.1980.01
• Executive Order 01.01.1982.08

Cases:

• Borough of Pleasant Hills v. Carroll, 125 A.2d 466, 469 (Pa. Super. 1956)
• Brack v. Wells, 184 Md. 86, 90 (1944)
• Sierra Club v. Morton, 405 U.S. 727, 733 (1972)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1982/Volume67_1982.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

GOVERNOR

State Development Council—Executive Orders—Authority to Issue—Effect of Executive Order on Development Policies

February 12, 1982

The Honorable Constance Lieder
Secretary of State Planning

You have requested our opinion on the legality, interpretation, and effect of a proposed Executive Order setting "Policies to Guide State Actions for the Physical and Economic Development of Maryland". Specifically, you have asked:

(1) Does the Governor have sufficient authority to issue such an Executive Order?

(2) What would be the legal effect of the Order on State agencies? In particular:

(a) Could it, while providing that its provisions do not override existing statutes and regulations, nevertheless require agencies to identify and draft proposed changes in statutes, rules, and regulations that conflict with the Order?

(b) Would the effect of the Order be to require agencies to establish new procedures for decision-making?

(c) Would private parties have standing to challenge agency decisions that violate a particular principle or policy stated in the Order?

(3) If the question of an agency's compliance with the Order arose in the course of legal proceedings (e.g., circuit court review of the denial of a permit), could a court invoke non-compliance with the Order as a basis for declaring some agency action to be illegal and void?

For the reasons given below, we conclude as follows:

(1) Issuance of the proposed Executive Order would be authorized by statute.

(2) As a statutorily-authorized Executive Order, it would have the force of law. However, by its express terms, the Executive Order would not override any existing statutory or regulatory provisions.

(3) The terms of the Executive Order are "directory" rather than "mandatory". This does not mean, however, that they can be ignored by State agencies with impunity. Pursuant to the Order, agencies still would be obligated to: (i) identify and draft proposed changes in existing statutes, rules, and regulations that conflict with the Order; and (ii) consider the factors specified in the Order in their decision-making. The Order would not require agencies to modify existing procedures, although some modifications might further the purposes of the gubernatorial directive. What is intended by the Order is that agencies consider the enumerated policies in their regular decision-making.

(4) By its express terms, the Order would not create any private causes of action; thus, it would not of itself confer standing on parties challenging agency actions. Moreover, we believe that the Order, as presently drafted, could reasonably be construed so as to prevent, even in the course of legal proceedings based on other grounds, any consideration of alleged noncompliance with the Order as a factor supporting possible nullification of agency decisions; however, because a court might see the question differently, we suggest that, if this result is intended, the proposed Order be amended to specifically prevent its directives from affecting the outcome of any legal proceedings.

I
Background

In 1980, by Executive Order 01.01.1980.01 (January 7, 1980), the Governor established a seven-member State Development Council.1 The purpose of the State Development Council is, among other things, to recommend:

"The appropriate content of an Executive Order relating to policies to guide the effective and efficient allocation of State resources for physical and economic development decisions concerning (1) location of State facilities provided for in the capital budget (2) policies of the State Department of Transportation concerning construction and improvement of, and acquisition of access rights to, existing and proposed State highways and other transportation facilities (3) policies of the State Department of Health and Mental Hygiene concerning local sewage treatment facilities and environmental standards (4) exercise of the intervention and critical areas powers of the Department of State Planning (5) targeting of the State business and housing loan programs, and marketing and business promotion activities (6) the State Outdoor Recreation Plan and plans for community facilities and (7) other forms of State and Federal aid targeted to areas of greatest need." Executive Order 01.01.1980.01, ¶3(a).

1 The Council consists of six cabinet secretaries (or their designees) and the Lieutenant Governor. Executive Order 01.01.1980.01, ¶2.

In accordance with this directive, the Council has prepared and submitted to the Governor a draft Executive Order (referred to below as the "Draft Order"). As most recently revised on October 20, 1981, the Draft Order provides:

"To the extent that they are not inconsistent with law, the principles and policies stated herein shall guide decisions by all State departments, agencies and commissions and other official State bodies for purposes of investments, financial or technical assistance, participation in development of local or regional plans, project or plan review, A-95 clearinghouse review, exercise of intervention powers and all other official acts, including cooperation with federal and local governments and agencies." Draft Order, ¶1 (emphasis added).

The Draft Order lists "six principles to guide State investments and actions". Draft Order, ¶2. It then states:

"In order to follow these principles, State officials and agencies, in cooperation with the private sector and other levels of government, shall carry out their programs in accordance with the policies set forth below." Draft Order, ¶3.

This directive is followed by a listing of 72 economic, environmental, agricultural, urban, energy, and development policies to be "promote[d]", "encourage[d]", or "give[n] priority". Id.

In addition, the Draft Order sets a schedule for agency actions designed to implement the Order. These actions include: the identification of existing programs "that can be used, without modification, to implement" the Order's principles and policies; the identification of existing programs "requiring statutory or regulatory changes" for implementation; and the "draft[ing]" of legislative and regulatory changes to make further implementation possible. Draft Order, ¶5.2

2 The Draft Order would continue the existence of the State Development Council and the State Development Task Force to review agency implementation of the Order. Draft Order, ¶¶7 and 8.

Finally, the Draft Order states:

"This Executive Order is not intended to and may not be construed to create any cause of action against any State department, agency, commission, or other official body, or against any State official or employee." Draft Order, ¶4.

II
Gubernatorial Authority

The Preamble of the Draft Order cites various provisions of the Maryland Code that concern the powers and duties of certain agencies; its "Promulgation Clause" states that it is being issued "by virtue of the authority vested in" the Governor "by the Constitution and Laws of Maryland".

There is no need for us to consider here whether the Constitution or the specifically cited statutes authorize this particular Executive Order, because we find sufficient statutory authority for its issuance in three sections of Article 41 of the Maryland Code: §§15, 15C, and 15CA.

Section 15 provides:

"The head of the Executive Department shall be the Governor of the State, who in addition to the rights, powers, duties, obligations and functions now or hereafter conferred by law, shall also have supervision and direction over the officers and agencies hereby or hereafter assigned to the Executive Department." (Emphasis added.)

Section 15C(c) states:

"Notwithstanding any other provision of this article, the Governor may, when circumstances dictate, establish task forces for programs which cut across departmental lines. This shall be limited to programs which require integration of services so as to achieve a governmental program which cannot efficiently be performed through simple cooperation between departments. Such task forces may exist for not more than one year unless their existence is specifically continued by the Governor." (Emphasis added.)

Finally, §15CA(b)(1)(v) expressly includes within the definition of "executive order" a written order by the Governor "[p]romulgating rules of conduct or procedure, or guidelines for State . . . agencies".

These provisions envision gubernatorial directives to State agencies to guide them in their operations and the efficient administration of their programs. Thus, §15 grants the Governor extremely broad authority to "supervis[e] and direct[] . . . the officers and agencies . . . assigned to the Executive Department";3 §15CA(b)(1)(v), in turn, recognizes the ability of the Governor to exercise this authority through the issuance of executive orders establishing, inter alia, "guidelines" for State agencies to follow. More particularly, §15C(c) contemplates the establishment of interagency programs growing out of "task forces", such as the State Development Council; §15CA(b)(1)(iii), in turn, provides that the Governor may exercise this authority by executive order.4

3 Section 15 is a legislative implementation of Article II, §1 of the Maryland Constitution, which vests the "executive power of the State ... in [the] Governor".

4 Section 15CA(b)(1)(iii) defines "executive order" to include: "(1) A written order, proclamation, or directive issued over the Governor's signature: . . . (iii) In the exercise of authority granted to the Governor by §15C of this article or by any other law dealing with organization of the executive branch, both within and between departments, units and agencies of that branch."

In the past, we have viewed these and similar provisions of law as authorizing far-reaching executive orders on significant matters involving the way in which the business of the Executive Branch is conducted. For example, in 64 Opinions of the Attorney General 180 (1979), we said that an Executive Order establishing the Governor's Commission on Law Enforcement and the Administration of Justice was authorized by Article 41, §§15C and 15CA(b)(1)(iii). Earlier, in 61 Opinions of the Attorney General 219 (1976), this Office concluded that, pursuant to Article 41, §§15 and 15CA(b), the Governor had ample authority to issue an Executive Order extending grievance procedures to unclassified State employees. In so concluding, that Opinion noted:

"Under the circumstances of its issuance, we view the Executive Order as the exercise of a management function which is implicit in the power of the Governor to supervise and direct the agencies of the Executive Department." 61 Opinions of the Attorney General at 227.

Similarly, here, the Governor's management powers to supervise and direct, to establish interagency programs for, and to issue guidelines governing the operations of State agencies, as reflected in §§15, 15C(c), and 15CA(b)(1)(v), afford a sufficient statutory basis for the issuance of the proposed Executive Order on development principles and policies.

III
Legal Effect of Proposed Order

A. In General

In 64 Opinions of the Attorney General 180 (1979), we concluded that a statutorily-authorized executive order had the force and effect of law. At the same time, however, we indicated that such an order (unlike, for example, an order issued pursuant to Article II, §24 of the Maryland Constitution) could not alter or contravene existing law. Id. at 183-84.

The principles and policies contained in the Draft Order on development policies apply only "[t]o the extent . . . not inconsistent with law" [Draft Order, ¶1]. Thus, the proposed Executive Order expressly disavows any intention of contravening existing "law", i.e., existing statutes or rules having the force of law. In light of this language, it is clear that the Order would not have any such superseding effect.

To conclude that the Draft Order would have the force of law does not mean that its terms are "mandatory" in the sense that a failure to abide by its provisions would have an invalidating effect on agency action. The Order is couched in terms of "guid[ing]" agency action [Draft Order, ¶2. Cf. 62 Opinions of the Attorney General 36, 39 (1977)], and it affirmatively eschews the creation of private causes of action [Draft Order, ¶4]. Moreover, it does not provide for any kind of sanction for noncompliance. Thus, it seems evident that the Order is not intended to be "mandatory", as that term is commonly used. See 1A Sutherland, Statutory Construction §25.03 (C.Sands 4th ed. 1972) ("The important distinction between directory and mandatory statutes is that the violation of the former is attended with no consequences, while the failure to comply with the requirements of the latter either invalidates purported transactions or subjects the non-complier to affirmative legal liabilities.").5

5 This conclusion is reinforced by the fact that the Draft Order obviously contemplates some measure of agency discretion; it directs consideration of some 72 diverse policies, and it is highly unlikely that all of them can be fully accommodated in any given agency action.

But even if "directory" rather than "mandatory", the Executive Order could not be ignored by State agencies. As noted by a Pennsylvania court, in Borough of Pleasant Hills v. Carroll, 125 A.2d 466, 469 (Pa. Super. 1956):

"To hold that a provision is directory rather than mandatory does not mean that it is optional, to be ignored at will. Both mandatory and directory provisions ... are meant to be followed. It is only in the effect of non-compliance that a distinction arises. A provision is mandatory when failure to follow it renders the proceedings to which it relates illegal and void; it is directory when the failure to follow it does not invalidate the proceedings."

See also 1A Sutherland, Statutory Construction §25.04 (C.Sands 4th ed. 1972).

Thus, if the Order is issued, agencies must, in accordance with its terms, identify and draft appropriate changes in statutory and regulatory provisions and, to the extent not inconsistent with existing law, consider the factors specified in the Order in their decision-making.6 Indeed, an agency head who disregards the Order may very well be doing so at the risk of his or her job.

6 For example, ¶3C(7) of the Draft Order directs State officials to provide transportation access needed to support employment centers. However, if no funds are provided by law in the budget for such a project, a State agency may be unable to comply with the directive.

B. Private Rights; Standing

If an executive order states that it does not intend to create private rights of action, it obviously cannot have that kind of substantive effect.7 In this case, the Draft Order on development policies expressly states that it "is not intended to and may not be construed to create any cause of action" in favor of private parties against State officers or agencies. Moreover, as a "directory" regulation that envisions a measure of discretion in its implementation,8 the Order could not be used as a basis for an "enforcement" action against a State agency. See Brack v. Wells, 184 Md. 86, 90 (1944); 52 Am. Jur. 2d Mandamus §76 (1970).

7 Cf. 62 Opinions of the Attorney General 36, 38-39 (1977) ("[T]he best evidence of any agency's intent with respect to the kinds of rules it is promulgating 'is what it says when it issues the rules'.").

8 See note 5 above.

Because the Draft Order necessarily requires discretionary implementation and expressly denies private parties legal redress, even traditional rules of standing would deny a litigant the right to challenge a "violation" of the Order. A litigant could not assert that he or she was injured by a violation of the Order and thus had a claim "arguably within the zone of interests to be protected or regulated" by the Order. Sierra Club v. Morton, 405 U.S. 727, 733 (1972).

Finally, it is our view that the Order could not be successfully invoked in court proceedings, such as those involving review of the denial of a permit, as an independent basis to challenge some agency decision or action. For example, Article 41, §255(f) of the Maryland Code provides that, in appeals of certain agency actions under the Administrative Procedure Act:

"The court may affirm the decision of the agency or remand the case for further proceedings; or it may reverse or modify the decision if the substantial rights of the petitioners may have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional provisions; or (2) In excess of the statutory authority or jurisdiction of the agency; or (3) Made upon unlawful procedure; or (4) Affected by other error of law; or (5) Unsupported by competent, material, and substantial evidence in view of the entire record as submitted; or (6) Arbitrary or capricious." (Emphasis added.)

For the reasons discussed above, a directory Executive Order such as the one under consideration here would not create or impact on "the substantial rights" of a third party.

In our view, a reasonable reading of the Draft Order would also preclude a litigant from invoking the directive as even one of several other grounds for invalidating an agency decision. However, it is not inconceivable that a court could differ with our reading and might choose to include a "violation" of the Order as one of a number of errors or factors supporting a claim that an agency decision was "arbitrary and capricious". To avoid this possibility, we think it advisable to amend the language of the Draft Order to expressly provide, for example, that the Order "is not intended to and may not be construed to confer any right, privilege, or status cognizable by a court in any proceeding".9

9 Similar language appears in the Preamble to Chapter 575, Laws of Maryland 1978 (the Minority Business Enterprise Law). (See Editor's Note below.)

IV
Conclusion

In summary, it is our opinion that:

(1) The proposed Executive Order on Development Policy, if issued by the Governor, would be authorized by statute.

(2) As a statutorily-authorized Executive Order, it would have the force of law, but would not override any existing statutory or regulatory provisions.

(3) The terms of the Executive Order are "directory" rather than "mandatory". However, they cannot be ignored by State agencies with impunity. Pursuant to the Order, agencies still would be obligated to: (i) identify and draft proposed changes in existing statutes, rules, and regulations that conflict with the Order; and (ii) consider the factors specified in the Order in their decision-making.

(4) By its terms, the Order would not create any private causes of action. Thus, it would not confer standing on parties challenging agency action or result in nullification of any agency decisions for noncompliance with the Order. However, to make this intention of the Order perfectly clear, we suggest that it be amended to specify that it does not confer private rights cognizable in court.

Stephen H. Sachs, Attorney General
Robert A. Zarnoch, Assistant Attorney General
Avery Aisenstark
Principal Counsel,
Opinions and Advice

Editor's Note: On May 28, 1982, Governor Hughes issued Executive Order 01.01.1982.08, entitled "Policies to Guide State Actions for the Physical and Economic Development of Maryland". The Executive Order became effective June 1, 1982. As issued, ¶4 of the Order provides: "This Executive Order is not intended to and may not be construed to confer any right, privilege, or status on any private party cognizable by a court in any proceeding."