Could Maryland's State Board of Education ban smoking on school grounds by regulation, without negotiating with teachers' unions first?

Plain-English summary

Maryland's State Board of Education adopted regulations requiring every local school system to maintain a "tobacco-free school environment," barring the sale or use of tobacco in school buildings at all times and on school grounds during the school day. A legislative oversight committee asked the Attorney General two questions: whether the statutes the Board cited actually supported the regulation, and whether banning smoking by staff on school premises was instead a "working condition" that had to be negotiated with employee unions under the collective bargaining statute.

The Attorney General concluded that one of the two statutes the Board cited, ED §7-401, did not support the regulation because it imposed duties on local school boards and the state health department jointly, not a grant of authority to the State Board itself. But the other cited provision, ED §2-205, was sufficient. The Board's general power to adopt binding regulations and its duty to exercise "general control and supervision over the public schools" extended to school-environment health risks, similar to existing rules on fire prevention, protective eyewear, and student transportation. On the bargaining question, the opinion applied the Maryland Court of Appeals' test from a 1987 school-calendar case: a subject is outside mandatory bargaining if it predominantly concerns educational policy or school administration, and the Board's own line-drawing gets deference unless it is arbitrary or unlawful. The opinion found nothing arbitrary about the Board's judgment that the health interests of the school community outweighed staff smoking interests, even though the regulation reversed the Board's own 1988 adjudicatory decision treating smoking restrictions as negotiable.

Currency note

This opinion was issued in 1992. 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.

Common questions

Did the State Board of Education have the legal authority to ban tobacco use by teachers on school grounds without a new law from the legislature?
Yes, according to the opinion. It concluded the Board's existing general regulatory authority under ED §2-205, including its duty of "general control and supervision over the public schools," was itself enough to support a tobacco-free campus regulation.

Was banning staff smoking treated as a "working condition" that had to go through union negotiation?
No. The opinion concluded the ban was a matter of school administration and public health policy, not a negotiable working condition, applying the Court of Appeals' predominant-concern test from the 1987 Montgomery County school-calendar case.

Did it matter that the State Board itself had previously treated smoking restrictions as negotiable?
Not decisively. The opinion noted the Board's 1988 adjudicatory opinion had gone the other way, but explained that an agency exercising statutory discretion may reach a different policy conclusion later through a validly adopted regulation, so the shift did not undermine the Board's authority.

Background and statutory framework

The tobacco-free school environment regulations, codified at COMAR 13A.02.04.01 and COMAR 13A.02.04.03, barred the sale or use of tobacco in school buildings at all times and on school grounds during the official school day. The State Board cited two statutes in support: ED §7-401, which the opinion found imposed duties on local boards and the state health department rather than granting authority to the State Board, and ED §2-205, which the opinion found sufficient because it gave the Board power to determine elementary and secondary education policy, adopt binding regulations, and exercise general control and supervision over public schools and their educational interests.

On the collective bargaining question, the opinion applied Montgomery County Education Association, Inc. v. Board of Education of Montgomery County, in which the Court of Appeals held that the collective bargaining statute, ED §6-408, could not be read to cover matters that predominantly concern educational policy or school administration, and that the State Board's own determination of that line is normally controlling unless arbitrary, contrary to the Education Article, or otherwise unlawful. The opinion reasoned that the Board's regulations reasonably balanced staff smoking interests against the health interests of the school community, consistent with the Governor's contemporaneous executive order describing secondhand smoke as a proven health hazard.

Citations and references

Statutes:

• ED §2-205, including (b)(1), (c)(1), (c)(2), (g)(2), State Board's general regulatory and supervisory authority
• ED §7-401, local school board and health department duties (found not to support the regulation)
• ED §6-408, collective bargaining scope for certificated employees
• ED §6-510(b), parallel bargaining provision for noncertificated employees
• COMAR 13A.02.04.01, 13A.02.04.03, tobacco-free school environment regulations
• COMAR 13A.08.01.08(B), 13A.06.04.01, 13A.06.06.01, 13A.06.07, comparison school-environment regulations
• Executive Order 01.01.1992.20, statewide smoking-in-buildings order

Cases:

• Montgomery County Education Association, Inc. v. Board of Education of Montgomery County, 311 Md. 303, 534 A.2d 980 (1987)

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/1992/Volume77_1992.pdf (this opinion appears at printed page 56 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.

EDUCATION

Public Schools - State Board of Education Has Authority to
Adopt Tobacco-Free School Environment Regulations

                         October 7, 1992

The Honorable Paula C. Hollinger
The Honorable Kenneth H. Masters
Joint Committee on Administrative,
Executive and Legislative Review

   You have requested our opinion concerning the authority of the

State Board of Education to adopt regulations calling for a "tobacco-free
school environment." Specifically, you question the statutory provisions
cited by the State Board in support of its regulations, and you ask whether
a prohibition of smoking by staff members on school premises is a matter
that is subject by law to collective bargaining.

  For the reasons stated below, we conclude as follows:

  1. The State Board correctly cited §2-205 of the Education Article

("ED" Article) as a basis for its regulation. The other provision cited by
the State Board, ED §7-401, does not provide any authority for the
regulation.

   2. The State Board reasonably determined that an across-the-board

prohibition of smoking on school premises is within the Board's "general
control and supervision over the public schools and educational interests
of the State" under ED §2-205(g)(2) and is not a "matte[r] that relate[s]
to ... working conditions" subject to collective bargaining under ED §6-
408.

                                 I

       Tobacco-Free School Environment Regulations

   The new regulations "require each local school system to maintain

a tobacco-free school environment." COMAR 13A.02.04.01. The core
of the regulatory scheme is as follows:

            The sale or use of tobacco in any form is prohibited
       in school buildings at all times. In addition, the sale or
       use of tobacco in any form is prohibited on school
       grounds during the official school day.

COMAR 13A.02.04.03.

   The regulations derive primarily from the State Board's concern,

supported by public comments and testimony, that tobacco smoke poses
a health risk to nonsmokers.1 In addition, the State Board seeks to ensure
that students are not exposed to behavior by teachers and other school
employees that would undermine educational efforts to reduce tobacco use
by students.

                                     II

                            Cited Authority

   In both the proposal and final submission stages of the regulatory

process, the State Board cited as its authority ED §§2-205 and 7-401.
Taking them in reverse order, we conclude that ED §7-401 is not a basis
for the regulation. ED §2-205 is a sufficient basis, however.

A. ED §7-401

  ED Title 7, Subtitle 4 deals with the health and safety of students.

ED §7-401(a) imposes certain duties on local school boards, not on the
State Board:

          With the assistance of the county health
       department, each county board shall provide:

           (i) Adequate school health services;

           (ii) Instruction in health education; and

            (iii) A healthful school environment.

1
In his recent executive order prohibiting smoking in State buildings and
facilities, the Governor pointed out that "[e]nvironmental tobacco smoke (second
hand smoke) is a proven cause of cancer in nonsmokers" and "[e]nvironmental
tobacco smoke can worsen cardiac, respiratory, and allergic conditions both in
individuals who do not as well as those who do smoke." Executive Order
01.01.1992.20 (preamble).

The provision then goes on to require the State Department of Education
and the Department of Health and Mental Hygiene jointly to "[d]evelop
public standards and guidelines for school health programs" and to "[o]ffer
assistance to the county boards and county health departments in their
implementation."

  Manifestly, the tobacco-free school environment regulations are not

the kind of joint standards and guidelines for school health programs
contemplated by ED §7-401(b). Moreover, while we do not doubt the
State Board's authority to regulate local boards in the exercise of their
authority under ED §7-401(a), the State Board's authority to do so must
emanate from another source, for ED §7-401(a) does not itself provide any
authority to the State Board.

 For these reasons, we conclude that the State Board incorrectly cited

ED §7-401 as a basis for its regulation.

B. ED §2-205

  The State Board is empowered to "[d]etermine the elementary and

secondary educational policies of this State." ED §2-205(b)(1). It may
"adopt bylaws, rules, and regulations for the administration of the public
schools," which "have the force of law when adopted and published." ED
§2-205(c)(1) and (2). Finally, the State Board, through the State
Superintendent of Schools, "shall exercise general control and supervision
over the public schools and educational interests of the State." ED §2-
205(g)(2).

   As a general proposition, these grants of statutory authority are

sufficient to authorize the State Board to regulate aspects of the school
environment that pose a risk to the health of students. The "general
control and supervision over the public schools" surely extends to aspects
of the school environment that pose immediate health or safety risks or
long-term health risks. Existing regulations deal with such matters as
student tobacco use on school premises, COMAR 13A.08.01.08(B); fire
prevention, COMAR 13A.06.04.01; protective eye devices, COMAR
13A.06.06.01; and student transportation, COMAR 13A.06.07.

  Unlike earlier environmental regulations, however, the tobacco-free

school environment regulations directly affect teachers and other staff
members by ending longstanding practices like smoking in teachers'
lounges. Hence, we next turn to the issue whether the regulations effect
a change in "working conditions" subject to negotiation under ED §6-408.
If ED §6-408 were applicable, the State Board would not be empowered
by ED §2-205 to impose a change in working conditions by regulation. In
Part III of this opinion, however, we conclude that the State Board's
judgment - that ED §6-408 is not applicable - is within the Board's legal
authority.

                                    III

               Boundaries of Collective Bargaining

 ED §6-408(b)(1) identifies certain subjects of collective bargaining

between a local school board and certificated employees:

            On request a public school employer or at least
        two of its designated representatives shall meet and
        negotiate with at least two representatives of the
        employee organization that is designated as the
        exclusive negotiating agent for the public school
        employees in a unit of the county on all matters that
        relate to salaries, wages, hours, and other working
        conditions.2

The section goes on to provide certain procedures for these negotiations.
The key issue presented by your inquiry is whether a restriction on the use
of tobacco by school employees deals with "working conditions" and is
therefore subject to collective bargaining, or whether it deals with a matter
of educational governance subject to direct regulation by the State Board.

   At one time, the State Board was of the view that smoking

restrictions affecting employees were the subject of mandatory bargaining.
In an adjudicatory opinion issued in 1988, the State Board articulated "a
balancing test to determine whether the interests of the employee in the
topic or the interests of the school system as a whole in the topic are the
greater. If the employee's interests outweigh the interests of the school
community, it is a negotiable subject of bargaining. If the school system's
interests predominate, it is a non-negotiable matter of educational policy
which remains within the local board's control." State Board Opinion No.
88-4, at 3.3

 Applying this balancing test, the State Board affirmed the conclusion

of a hearing examiner "that a ban on smoking [in Frederick County

2
An identical provision applicable to noncertificated employees is set out
in ED §6-510(b).
3
This balancing test is used whenever the school board is carrying out its
general statutory duty to operate the school system, rather than a specific statutory
duty related to the topic at issue. State Board Opinion at 2-3.

schools] 'does not involve a matter of education policy, for whether or not
teachers are permitted to smoke in areas of school buildings set aside for
their exclusive use has no bearing on the quality or content of the
education of Frederick County children.'" State Board Opinion at 3-4.
The tobacco-free school environment regulations strike the balance
differently and overrule this prior opinion.4

    The balancing test used in the State Board's 1988 opinion derives

from Montgomery County Education Association, Inc. v. Board of
Education of Montgomery County, 311 Md. 303, 534 A.2d 980 (1987),
a case in which the Court of Appeals considered the boundaries of
collective bargaining and the power of the State Board to determine what
fell outside those boundaries. The issue in the case was the determination
of the school calendar, but the decisional principles announced by the
Court are pertinent here.

   First, the Court held that ED §6-408, the collective bargaining

statute, "may not be construed to encompass matters that predominantly
concern the determination of educational policy or the administration of
the public schools." 311 Md. at 318. Second, great deference is accorded
to the State Board's expert determination whether a particular matter is
outside ED §6-408: "Unless it is demonstrated in a particular case that the
line drawn by the State Board under §6-408 is arbitrary, or clearly in
violation of the Education Article, or otherwise contrary to law, the State
Board's determination will normally be controlling." Id.

   As the emphasized phrase from the Montgomery County case

suggests, the authority of the State Board to circumscribe the reach of ED
§6-408 is not linked solely to "educational policy" narrowly conceived, as
the hearing examiner in the 1988 adjudication seemed to think. The
hearing examiner's focus on the "quality or content of the education" of
the school children did not take account of the possibility that management
policy prerogatives over the school environment might be broader.5

4 When an agency, exercising its statutory discretion, reaches a policy
conclusion by means of an adjudicatory opinion, it may later reach a different policy
conclusion by means of a regulation, so long as the regulation is itself within the
scope of the agency's authority. 2 Davis, Administrative Law Treatise §7:29 at
155 (2d ed. 1979).
5
The State Board's current regulations might well fit within even a narrow
construction of "educational policy." Anti-smoking education surely has an
important place in the curriculum, and the State Board might reasonably determine
that inconsistent behavior on school premises by role models undermines the
educational effort.

  There is nothing arbitrary about the State Board's current regulatory

determination that teachers' interest in smoking does not, in the words of
the portion of the 1988 opinion that better captures the legal standard,
"outweigh the interests of the school community." Few community
interests could be greater than the health of school children. The State
Board, in our view, had a reasonable basis for deciding that tobacco use on
school premises predominantly concerns a matter of public school
administration not subject to collective bargaining. Given the deference
owed to such determinations, the Board's regulations are lawful.6

                                     IV

                               Conclusion

   In summary, it is our opinion that the State Board of Education has

the statutory authority to adopt COMAR 13A.02.04, regulations requiring
a tobacco-free school environment.

                                          J. Joseph Curran, Jr.
                                          Attorney General

                                          Jack Schwartz
                                          Chief Counsel
                                          Opinions & Advice

6
Our conclusion is limited solely to the regulations in question; each issue
concerning the scope of ED §6-408 must be analyzed in its own context.