Could a Maryland county force its school board to forfeit unspent school construction money after three years, under a county charter rule?

Plain-English summary

The County Attorney for Harford County asked the Attorney General whether a provision of the Harford County Charter, treating any capital project appropriation as abandoned if three fiscal years passed without spending or encumbering it, applied to the Harford County Board of Education's capital projects, after the County Treasurer notified the Board that certain school renovation funds would be treated as lapsed under that rule. The opinion concluded the Charter provision did not apply to the Board. It reasoned that the Court of Appeals had already held, in McCarthy v. Board of Educ. of Anne Arundel County, that the State occupies the field of education, and that two earlier decisions the McCarthy Court itself treated as preemption precedent had specifically held that a board of education "is not subject to county charter budgetary requirements." The opinion acknowledged that a school board must still generally follow a county's budgeting procedures, since the Education Article requires the board to submit its budget to the county and does not spell out every procedural detail, but it distinguished procedural budget-submission requirements from substantive restrictions on how appropriated capital funds may later be used, finding no provision of the Education Article that authorized a county to impose a time limit like Harford's three-year abandonment rule. Because the Education Article instead gave county school boards broad discretion over the timing of capital spending, subject only to needing county council approval to transfer unexpended balances between projects, the opinion concluded Harford County lacked authority to apply its charter's abandonment rule to the Board's capital appropriations.

Currency note

This opinion was issued in 1983. 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 relied on the Court of Appeals' 1977 decision in McCarthy v. Board of Educ. of Anne Arundel County and noted that the Court's more recent 1983 decision in Hornbeck v. Somerset County Bd. of Educ. cited McCarthy without repeating its broadly phrased preemption language, suggesting some uncertainty even at the time about the doctrine's full scope. Maryland's education budgeting statutes, county charter provisions, and preemption case law have likely developed further since 1983; verify the current Education Article and current case law before relying on any specific description of county authority over school board finances.

Common questions

Could a Maryland county charter's rule about abandoning unused capital funds after three years apply to money appropriated for school construction?
No, according to this opinion. It concluded that the State had preempted the field of educational budgeting, and that Harford County's Charter provision treating capital appropriations as abandoned after three fiscal years imposed a substantive restriction on the school board's use of funds that no provision of the Education Article authorized.

Did this mean a county had no say at all over how its school board handled its budget?
No. The opinion distinguished procedural budgeting requirements, which a school board must generally follow because the Education Article requires it to submit its budget to the county and does not spell out every procedural detail, from substantive restrictions on the later use of appropriated funds, which the opinion found the county had no authority to impose absent specific statutory authorization.

Could a county condition its capital appropriations on the school board following the county's own rules, since the county controls whether to approve the appropriation in the first place?
The opinion rejected this argument here. While it acknowledged that the power to deny an appropriation can sometimes imply the power to condition its use, it found that logic could not be applied in an area, like education, that the General Assembly had preempted, since a county could otherwise defeat state preemption entirely by attaching conditions like this to routine budget approvals.

Background and statutory framework

The opinion built on the Court of Appeals' 1977 decision in McCarthy v. Board of Educ. of Anne Arundel County, which invalidated county code provisions directing a school board to bus private school students and concluded the State's extensive education legislation "demonstrates the occupation of that field by the State." The opinion read McCarthy as having retroactively recast two earlier decisions, Board of Educ. of Montgomery County v. Montgomery County and Montgomery County v. Yost, holding that a board of education "is not subject to [county] charter budgetary requirements," as preemption precedent rather than mere conflict-of-laws holdings. At the same time, the opinion recognized that preemption does not eliminate all local authority where the General Assembly has specifically authorized it, and found that Ed §5-102(b)(1)'s requirement that a board submit its annual budget to the county implicitly required the board to follow the county's general budgeting procedures, since the Education Article did not itself spell out every procedural detail.

The opinion drew a sharp line, however, between procedural budget-submission requirements and substantive restrictions on spending appropriated capital funds. It found the Education Article gave county school boards broad discretion over the timing of capital project spending, requiring county council approval only when a board wished to transfer unexpended capital project balances under Ed §5-106(c)(2), and found no comparable statutory authorization for a rule declaring capital appropriations abandoned after a fixed period. The opinion considered and rejected the argument that a county's power under Ed §5-106(b) to deny capital appropriations in the first place implied a power to condition their use going forward, reasoning by analogy to Kindley v. Governor of Maryland's discussion of appropriations conditions, but concluding that allowing counties to impose such conditions in a preempted field, for example, conditioning funding on a school board's choice of building site or curriculum, would defeat the General Assembly's preemption of education entirely.

Citations

Statutes:

• Ed §5-102(b)(1) (school board's duty to submit annual budget to the county)
• Ed §5-101(b)(2) (county fiscal authority to require additional budget detail)
• Ed §5-101(c) (budget categories)
• Ed §5-102(b)(2) (timing of budget submission)
• Ed §5-106(b) (county council authority to deny capital project appropriations)
• Ed §5-106(c)(2) (county council approval required to transfer unexpended capital balances)
• Ed §16-401(d) (community college budgets follow county fiscal procedures)
• Ed §16-402(d) (county borrowing terms for community college capital improvements)
• §519 of the Harford County Charter (three-year capital project abandonment rule)

Cases:

• McCarthy v. Board of Educ. of Anne Arundel County, 280 Md. 634 (1977)
• Hornbeck v. Somerset County Bd. of Educ., 295 Md. 597 (1983)
• Board of Educ. of Montgomery County v. Montgomery County, 237 Md. 191, 197 (1964)
• Montgomery County v. Yost, 223 Md. 150, 162 (1960)
• Kindley v. Governor of Maryland, 289 Md. 620, 625, 630 (1981)

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/1983/Volume68_1983.pdf

Original opinion text

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

EDUCATION

Budgetary Administration—Capital Projects—Public School Construction—Preemption—Charter Provision Imposing Time Limit on Use of Appropriation for Capital Projects Does Not Apply to School Board.

May 31, 1983

Max D. Miller, Jr., Esq.
County Attorney for Harford County

You have requested our opinion on whether §519 of the Harford County Charter, concerning unexpended capital appropriations, applies to the Harford County Board of Education ("the Board"). Specifically, you ask whether the Board's capital projects are subject to the Charter requirement that "any capital project shall stand abandoned if three fiscal years elapse without any expenditure from or encumbrance of the appropriation made therefor".

For the reasons given below, we have concluded that this provision is inapplicable to the Board's capital projects.

I
Background

As we understand it, the Harford County Treasurer has notified the Harford County Board of Education that certain of its capital projects, for which funds had previously been appropriated, would be treated as abandoned pursuant to §519 of the Harford County Charter.1 This provision is as follows: "Unless otherwise provided by law, all unexpended and unencumbered appropriations in the current expense budget remaining at the end of the fiscal year shall revert into the County general fund. No appropriation for a capital project in the capital budget shall lapse until the purpose for which the appropriation was made shall have been accomplished or abandoned; provided that any capital project shall stand abandoned if three fiscal years elapse without any expenditure from or encumbrance of the appropriation made therefor. The balances remaining to the credit of the completed or abandoned capital projects shall be available for appropriation in subsequent capital budgets." (Emphasis added.)

1 We understand that the projects in question involve the renovation of existing school facilities. The Board has requested State funding under the public school construction program; these requests are pending at the Interagency Committee for State Public School Construction.

The County contends that, because this provision does not conflict with any provision of State law, it is applicable to the Board. The Board's position is that State law wholly preempts the field of education, and, therefore, the County is without authority to apply §519 to the Board's capital projects.

II
Analysis

A. State Preemption

In McCarthy v. Board of Educ. of Anne Arundel County, 280 Md. 634 (1977), the Court of Appeals held invalid two Anne Arundel County code provisions that directed the school board to provide transportation for private school students. In so holding, the Court concluded that: "Our recital of legislation by the State in the field of education demonstrates the occupation of that field by the State." 280 Md. at 651.

It is by no means entirely clear whether the Court, through this broadly phrased conclusion, intended to hold that local authority had been wholly preempted in every matter relating to education. We note for example, that, in its recent decision upholding the constitutionality of the State's system of public school financing, the Court of Appeals cited McCarthy in passing, but did not reiterate that decision's broadly phrased conclusion. See Hornbeck v. Somerset County Bd. of Educ., 295 Md. 597 (1983).

At any rate, for purposes of this Opinion we need not attempt to demarcate the precise boundaries of State preemption as to all matters relating to education. Rather, we think it reasonably clear that county charter provisions regulating a school board's budget process do fall within the area of State preemption, whatever that area's outer limits might be.

In two cases prior to McCarthy, the Court of Appeals held that a board of education "is not subject to [county] charter budgetary requirements". Board of Educ. of Montgomery County v. Montgomery County, 237 Md. 191, 197 (1964). See also Montgomery County v. Yost, 223 Md. 150, 162 (1960). To be sure, both of these cases involved elements of conflict between county charter provisions and State law. However, in McCarthy, the Court of Appeals treated these same cases, from the more recent of which it quoted with approval the very language noted here, as evidence of State preemption. McCarthy, 280 Md. at 650. In light of McCarthy, therefore, we regard the Court's repeated statement that a school board "is not subject to [county] charter budgetary requirements" as a statement of preemption, that is, the State has preempted the area of educational budgeting.

B. Extent of County Authority under the Statute

Although the County lacks inherent authority to impose charter budgetary requirements on the Board, it does not necessarily follow that the County is entirely without authority to legislate with respect to the Board. Even after a field is preempted, local legislation nevertheless is permitted if the General Assembly has so authorized by specific statutory provision. As we said of the McCarthy decision itself: "We do not view this holding to mean that the counties cannot exercise certain narrow legislative or administrative authority within the limits of functions specifically assigned to the counties by the General Assembly." Opinion No. 79-078, at 10 n. 7 (December 31, 1979) (unpublished).2 Therefore, the determinative issue is whether §519 of the Harford County Charter is authorized by any provision of the Education Article ("Ed" Article) of the Maryland Code.

2 See also 67 Opinions of the Attorney General 13 (1982) (local law on condominiums preempted unless it falls within exceptions enumerated in the statute); 67 Opinions of the Attorney General 316, 320 n. 5 (1982) (all local firearms regulation not necessarily preempted although State law generally preempts the authority of local governments to regulate handgun ammunition).

Under Ed §5-102(b)(1), "[e]ach county board shall submit an annual school budget in writing to the county commissioners, county council, or the county executive". The Education Article itself specifies some requirements about the procedures for the annual budget. See, e.g., Ed §5-101(b)(2) (county fiscal authorities may require certain additional details); §5-101(c) (budget categories); §5-102(b)(2) (time of submission). However, the Education Article is not a detailed roadmap of the entire budget process, nor could it be, given county-to-county variations in procedure.

Accordingly, we believe that, when Ed §5-102 requires submission of a school board's budget to the appropriate county, the section impliedly requires that the school board follow that county's budgetary procedures. Otherwise, the school board's budget would largely fall into a procedural vacuum: the General Assembly has not legislated every detail, yet the local government would be preempted from doing so. We do not construe the statute to produce that absurd result. See, e.g., Kindley v. Governor of Maryland, 289 Md. 620, 625 (1981).3

3 We acknowledge that, elsewhere in the Education Article, the General Assembly expressly incorporated local fiscal procedures: "The capital and operating budgets [for community colleges] shall be prepared and considered in accordance with county fiscal procedures not inconsistent with State law." Ed §16-401(d). See generally Opinion No. 81-014 (April 15, 1981) (unpublished). But we are reluctant to conclude, from this single express provision, that necessary budget procedures may not be implied anywhere else in the Article.

However, the essence of preemption is that local governments do not have wide-ranging implied authority within the preempted area. In our view, the most that can be inferred from Ed §5-102 and the other budgetary provisions is that school boards must generally adhere to county budgeting procedures. Unstated substantive restrictions on the use of appropriated funds are quite a different matter.

Section 519 of the Harford County Charter is not a mere procedural requirement. It imposes a restriction on the Board's use of funds for capital projects that is nowhere imposed by State law. Indeed, the pertinent provision of the Education Article implies that a county school board has broad discretion to determine when to apply appropriated funds to a capital project. Only when a board wishes to "transfer . . . unexpended [capital] project balances" must it obtain the approval of the county council. Ed §5-106(c)(2).

Under Ed §5-106(b), a county council has the authority to deny appropriations for particular capital projects. We recognize the general principle that the power to deny appropriations implies the power to condition their use. As the Court of Appeals said in another context: "Through its authority to appropriate funds in the yearly budget bill, the General Assembly is free to limit the conditions under which public funds may be expended for abortion." Kindley v. Governor of Maryland, 289 Md. 620, 630 (1981). See also, e.g., 48 Opinions of the Attorney General 19, 21 (1963) (authority of the General Assembly to strike or reduce budget items entails "the subsidiary authority which naturally flows from that power, to condition or limit the use of the money appropriated"). Viewed from this perspective, one could argue that Harford County appropriates funds for the Board's capital projects with the necessarily implied condition that §519 of the Charter be adhered to.

However, we do not think that this general principle can reasonably be applied in an area in which local authority has been preempted. The General Assembly's intent to occupy the field of education would obviously be defeated if, for example, a county council were able to "condition" appropriations on the school board's adherence to the council's choice of a school building site or of curriculum requirements. Cf. 41 Opinions of the Attorney General 177, 179 (1956) (county council's selection of school site in budget resolution invalid: "Nowhere in the Public School Laws of Maryland is there any indication that the selection of a site for a proposed school is in any way the concern of the County Council or other county legislative or administrative body.").

Just as State preemption is incompatible with local budgetary conditions that impinge on a school board's discretion to set education policy in accordance with State law, it is also incompatible with local budgetary conditions that constrain a board's discretion to spend funds in accordance with State law. Cf. Montgomery County v. Yost, 223 Md. 150 (1960).

In our view, Harford County has no authority to impose any limitation or restriction on the use of the Board's funds that is not authorized by State law.4 Because the Board is free, under State law, to spend appropriations for capital projects even after three years, the provision of §519 of the Harford County Charter regarding abandonment of capital projects may not be applied to these capital projects.

III
Conclusion

In summary, it is our opinion that the portion of §519 of the Harford County Charter regarding abandonment of capital projects is inapplicable to the Harford County Board of Education.

Stephen H. Sachs, Attorney General
Jack Schwartz, Assistant Counsel
Opinions and Advice
Avery Aisenstark, Chief Counsel
Opinions and Advice

4 We note that the General Assembly has evidently chosen to grant local governments different degrees of budgetary control in different areas of education. With respect to a county's borrowing of money to finance capital improvements for a community college, for example, the Education Article provides as follows: "Money may be borrowed on terms and conditions the county governing body considers proper, subject to any requirements of local law applicable to the creation of public debt." Ed §16-402(d).