Does Maryland's Board of Public Works have to approve a gift of real estate to the state, or can the Governor accept it alone?

Plain-English summary

Maryland's Secretary of Budget and Fiscal Planning asked the Attorney General in 1990 whether the Board of Public Works had to approve the state's acceptance of a gift of real property, alongside whatever approval the Governor gave. The question mattered because state agencies sometimes receive land, buildings, or other property as gifts, and needed clarity on which state officials had to sign off before the agency could actually use the gift.

The Attorney General concluded that, absent a specific statute addressing a particular gift, only the Governor's consent was legally required to accept a gift to the state, and that this rule applied equally to gifts of real property, personal property, and money. The Board of Public Works had no independent statutory role in approving such gifts, because the Board's authority is limited to whatever duties the General Assembly has given it by statute, and no statute gave the Board authority over gift acceptance generally. The opinion noted two narrow exceptions where the Board would still be involved: if accepting a real property gift required spending appropriated funds on what could reasonably be called "acquisition" costs, or if the gift required transferring property between state agencies.

Currency note

This opinion was issued in 1990 and interpreted SF §2-201(c) and related State Finance and Procurement Article provisions as they stood at that time, along with the list of statutes then giving specific state officials or units authority to accept gifts for particular purposes. Subsequent statutory amendments, court decisions, or later AG opinions may have changed which officials must approve a gift to the state or added new statute-specific gift provisions. Treat this page as historical context, not current legal advice. Verify the current version of SF §2-201(c) and any statute specific to the type of gift or receiving agency before relying on any specific rule described here.

Common questions

Did Maryland's Board of Public Works have veto power over a gift of land to a state agency in 1990?
No, according to this opinion. Unless a specific statute said otherwise, the opinion concluded that only the Governor's consent was needed to accept a gift to the state, and the Board of Public Works had no independent statutory role in approving gift acceptances generally.

Were there any situations in 1990 where the Board of Public Works still had to get involved with a gift to the state?
Yes, in two narrow situations described in the opinion: if accepting the gift required spending appropriated funds on what could reasonably be called acquisition costs, the Board had to supervise that expenditure, and if the gift required transferring property between state agencies, the Board's approval was required for that transfer.

Background and statutory framework

Maryland's Constitution does not address the authority to accept gifts on behalf of the state; that authority comes entirely from statute. The general rule, found in SF §2-201(c) of the State Finance and Procurement Article, provided that if the Governor assented to acceptance of a gift by an officer or unit, that officer or unit could use the gift according to its terms, though money or money-generating gifts still had to be appropriated under SF Title 7 before being spent. The opinion noted that various specific statutes separately authorized particular state units, such as the Secretary of Natural Resources for gifts of parkland or wetlands, the Maryland Historical Trust, and the Maryland Stadium Authority, to accept gifts for their own limited purposes, but that where no such specific statute applied, SF §2-201(c)'s general rule controlled and the Governor's consent alone sufficed.

The opinion reasoned that the Board of Public Works, as a body created by Article XII, §2 of the Maryland Constitution, has only the duties the General Assembly has actually enacted for it, citing a 1977 AG opinion for that principle, and that no statute gave the Board a role in approving the acceptance of gifts generally. The opinion identified two statutory exceptions where the Board would still be involved despite that general rule: SF §4-415(c), which required the Board to supervise any expenditure of appropriated funds for what could reasonably be termed "acquisition" costs connected to a real property gift, and SF §10-304(b), which required Board approval for any transfer of property between state agencies that a gift might necessitate.

Citations and references

Statutes:

• SF §2-201(c), the general rule requiring only Governor's consent to accept a gift to the state, subject to appropriation of any resulting money
• SF Title 7, governing appropriation of money received as or generated from a gift
• SF §4-415(c), requiring Board of Public Works supervision of appropriated-fund expenditures on gift-related acquisition costs
• SF §10-304(b), requiring Board of Public Works approval for property transfers between state agencies
• Article XII, §2 of the Maryland Constitution, establishing the Board of Public Works and limiting it to legislatively enacted duties
• §2-308, §5-207, §5-1217, and §9-504 of the Natural Resources Article, and §5-402 and §9-705 of the Agriculture Article, examples of statutes authorizing specific officials to accept gifts for limited purposes
• Article 78D, §19, authorizing the Baltimore Regional Council of Governments to accept gifts for its purposes
• Article 83B, §5-607(a)(12), authorizing the Maryland Historical Trust to accept gifts for Trust purposes
• §9-929 of the State Government Article, authorizing the Veteran's Home Commission to accept gifts for commission purposes
• §13-711 of the Financial Institutions Article, authorizing the Maryland Stadium Authority to accept gifts for facility purposes

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/1990/Volume75_1990.pdf (this opinion appears at printed pages 67-69 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

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

BUDGETARY ADMINISTRATION

Governor — Board of Public Works — Gifts — Only the Governor Need Approve a Gift to the State

October 5, 1990

The Honorable Charles L. Benton
Secretary of Budget and Fiscal Planning

 You have requested our opinion about the approvals required to accept a gift to the State. Specifically, you ask whether the Board of Public Works must approve the acceptance of gifts of real property.

 For the reasons set forth below, we conclude that, except as otherwise specifically provided by statute, only the Governor need approve a gift to the State, whether the gift is of real or personal property.

I

Analysis

 The authority to accept gifts on behalf of the State is not addressed by the Maryland Constitution but is conferred by statute. The general rule governing the acceptance of gifts is found in §2-201(c) of the State Finance and Procurement Article ("SF" Article):

      If the Governor assents to the acceptance of a gift by an officer or unit, the officer or unit may use the gift in accordance with its terms. If the gift is money or generates money, the officer or unit may not spend the money until it is appropriated as provided in Title 7.

In addition, various units of the State government are authorized to accept gifts to be used for limited purposes in accordance with the applicable appropriation.1

 If a specific statute governs the gift, only those approvals required by that statute are necessary to accept the gift. In the absence of a statute governing a gift to a particular unit, only the Governor's consent is required by SF §2-201(c).

 With respect to the required approval, SF §2-201(c) does not distinguish between gifts of personal or real property and gifts of money.2 Unless otherwise provided by statute, before a gift of any nature may be used by a unit of the State government, the Governor must consent to the acceptance of the gift.

 The Board of Public Works need not take any action to accept a gift of real property. The Board has only such duties as are enacted by the General Assembly. Article XII, §2 of the Maryland Constitution. See 62 Opinions of the Attorney General 716, 725 (1977). No statute confers authority regarding the acceptance of gifts on the Board of Public Works.3

II

Conclusion

 In summary, it is our opinion that gifts governed by specific statutes may be accepted in accordance with the requirements of the particular statute. In the absence of a specific statute, only the Governor's consent is necessary for the acceptance of a gift of any kind to the State.

                                          J. Joseph Curran, Jr.
                                          Attorney General

                                          Cecilia Januszkiewicz
                                          Assistant Attorney General

                                          Jack Schwartz
                                          Chief Counsel
                                            Opinions & Advice

1
A non-exhaustive list includes §§2-308 (Maryland Geological Survey Commission for matters within its jurisdiction), 5-207 (Secretary of Natural Resources for gifts of land for parks, forests, or other reserves), 5-1217 (Secretary of Natural Resources for wetlands), and 9-504 (Secretary of Natural Resources for phragmite management) of the Natural Resources Article; Article 78D, §19 (Baltimore Regional Council of Governments for its purposes); Article 83B, §5-607(a)(12) (Maryland Historical Trust for Trust purposes); §§5-402 (Secretary of Agriculture for mosquito control) and 9-705 (Secretary of Agriculture for multiflora rose management) of the Agriculture Article; §9-929 of the State Government Article (Veteran's Home Commission for commission purposes); and §13-711 of the Financial Institutions Article (Maryland Stadium Authority for facility purposes).

2
SF 2-201(c) does require that before gifts of money or money generated from gifts are expended, not only must the Governor approve but the funds must also be appropriated in accordance with SF Title 7.

3
If acceptance of a gift of real property entails any expenditure of appropriated funds for what could reasonably be termed "acquisition" costs, the Board of Public Works "shall supervise" that expenditure. SF §4-415(c). Moreover, if a gift necessitated any transfer of property between State agencies, the Board's approval would be required. SF §10-304(b).