Citation Numbers: 81 Op. Att'y Gen. 26
Judges: J. JOSEPH CURRAN, JR.
Filed Date: 11/15/1996
Status: Precedential
Modified Date: 7/5/2016
Dear Ms. Rehrmann:
You have requested our opinion whether Harford County may adopt, by ordinance, a program to provide grants to individual public schools as a reward for achieving performance standards set by a county-appointed commission.
A county grant program raises a legal issue only to the extent that the program is administered outside the existing statutory framework for county financial support of a school system. Under §
Nevertheless, should the county wish to pursue a more independent approach in encouraging improved school performance, the county may do so in a limited way. In our opinion, a charter home rule county like Harford County may establish a performance incentive grant program if the program is a purely voluntary, noncontractual arrangement that rewards past performance and neither imposes future conditions on the operation of local schools nor interferes with the discretion of State and local educational authorities. Certain features of a proposed 1996 Harford County ordinance do not satisfy this condition, although we believe that it is possible to fashion valid county legislation.
A. The 1996 Proposal
On April 2, 1996, Bill 96-21 was proposed by the Harford County Administration and introduced in the County Council to establish a "school-based performance incentive program." Although this measure was not enacted, we understand that you hope to resubmit similar or modified legislation for the Council's consideration.
The 1996 bill would have created the Harford County Commission on School Board Performance Incentive Program ("the Commission"), a county body of 13 persons, including one member of the Harford County Board of Education. The Commission would be authorized to establish objective performance standards for local public schools and to provide a program of incentives to individual schools in the county that are meeting, exceeding, or making significant progress toward meeting these standards. The legislation contemplated the submission of funding proposals by individual "school improvement teams," composed of teachers and parents, that were obliged to demonstrate that the funds spent "will help increase school performance," be consistent with the school's improvement plan, and not be used to supplement ordinary operating costs. Had this measure passed, it would have been funded through a $500,000 appropriation in the county's budget ordinance.
B. Conflicting Opinions
The issue of the county's authority to establish a school-based performance incentive program has been the subject of three opinions: one written by the attorney for the County Council, one by the County Attorney's Office, and one by the county's bond counsel.
The Council Attorney concluded that Bill 96-21 was preempted by State law:
The bill, in effect, establishes a commission which will promulgate policy regarding how schools will receive additional monies above and beyond that which is provided for within the State mandated budget scheme. In other words, Bill 96-21 appears to create an additional category not authorized by state legislation and not included in the board of education's budget.
Memorandum to Council Members from Council Attorney (May 27, 1996).
By contrast, the County Attorney opined that the legislation was not preempted, because "the program creates no requirement or burden on the school system [and] because the program is no more than an additional ``prize' or ``award' for which the schools are free to compete — subject only to the direction of the school system hierarchy." Opinion of the County Attorney (May 24, 1996). The County Attorney also concluded that grants under the program would be "one-time money" exempt from maintenance-of-effort requirements imposed by ED §
Finally, the law firm of Miles and Stockbridge, the county's bond counsel, concluded that establishment of the grant program was within the county's home rule powers under Article
Although the Express Powers Act for charter counties, Article
[T]o pass all ordinances, resolutions or bylaws, not inconsistent with the provisions of this article or the laws of the State, as may be proper in executing and enforcing any of the powers enumerated in this section or elsewhere in this article, as well as such ordinances as may be deemed expedient in maintaining the peace, good government, health and welfare of the county.
Provided, that the powers herein granted shall only be exercised to the extent that the same are not provided for by public general law. . . .
This provision has been interpreted broadly to authorize the expenditure of county funds to private or semi-private entities as long as a public purpose is served. See Snowden v. Anne ArundelCounty,
A. Implied Preemption and the Education Article
In McCarthy v. Board of Education,
The subject of the incentive program, financial aid for schools, falls within the core of the "field" occupied by the State.3 Yet, this determination does not end the analysis. In Opinion No. 94-019 (March 31, 1994) (unpublished) and later in court, this office suggested that the implied preemption doctrine only limits the authority of a local subdivision to "regulate" by legislation.
The implied preemption doctrine safeguards the General Assembly's decision "to occupy a specific field of regulation. . . ."Mayor and City Council of Baltimore v. Sitnick,
In its most recent implied preemption case, Allied Vending,Inc. v. City of Bowie,
We construed this language in Allied Vending to mean that, although a charter county could not legislate to regulate the location of cigarette vending machines, nevertheless a county was not precluded from passing a nonbinding resolution encouraging businesses to remove those machines from their premises. Our understanding of the scope of preemption was affirmed by the Circuit Court for Howard County in Allied Vending, Inc. v. HowardCounty, Case No. 94-CA-24895 (March 19, 1996) (Sweeney, J.):
While the Council may not legislate to regulate cigarette vending machines, . . . the Council may pass a non-binding resolution expressing its opinion on this issue. Resolution 48-1994 does not create liability or create a new rule of general application, and therefore it is not legislative in the nature of an ordinance or law.
To be sure, the Harford County's school performance incentive program was proposed to be enacted legislatively as an ordinance. The County Attorney, however, characterized the measure as a purely voluntary plan that imposes no burden on the school board: "The County realizes and accepts the fact that it can neither require a school to participate in the voluntary program nor require the Board to order a school to participate." The proposed program, therefore, hardly amounts to an attempt to "regulate" education. The proposal is not preempted merely because it touches the field of education.
We doubt that any serious legal objection would be raised if the county's program rewarded schools that performed well, by county criteria, with a plaque or other form of non-monetary recognition. The overall preemption issue is no different, however, simply because the recognition takes the form of a monetary grant.
B. Specific Preemption or Conflict with the Education Article
Even if Harford County is permitted some nonregulatory authority in the field of education, the question remains whether the proposed grant program is preempted by or conflicts with specific provisions of the Education Article.
1. Education policy-making authority
Undoubtedly, the county board of education and the county school superintendent make local educational policy in each subdivision. ED §§
Rather than impermissibly establishing educational standards that a school must meet in the future, the county incentive program is more properly viewed as setting eligibility requirements for a grant for which a school may compete on the basis of its past performance. A school is not obliged to seek or accept a grant, and local education authorities remain free as a matter of policy to direct a school not to apply for or accept a grant or to accept only with the approval of the board or superintendent. Indeed, if there were a conflict between board-imposed performance standards and county-determined standards for an incentive grant, a school would be obliged to adhere to the board's standards. As long as this non-binding, non-contractual program does not interfere with the discretion of local educational authorities or place conditions on a school that receives a grant, however, it would not be preempted by or in conflict with ED §§
2. State School Performance Program
At its 1996 session, the General Assembly established a program under which the State Superintendent of Education would annually distribute recognition awards to elementary and middle schools that show substantial improvement toward meeting standards of the Maryland School Performance Program. ED § 5-203.3. We do not view the creation of the State-funded and State-administered program as barring a county from establishing a voluntary, non-binding grant program that also rewards school performance, as long as the program does not infringe on the discretion of State or local educational authorities. If the two programs turn out to be incompatible in practice, those in charge of the school system can simply decline to participate in the county's program.
3. Advisory committees
Under ED §
4. County appropriation requirements
It is rare for an enactment to raise a preemption issue when a local government proposes to spend more than is required for a mandated program. See Ramos v. Montgomery,
The manner in which a county appropriates funds for the annual budget of the local board of education, however, is controlled entirely by State law. See 68 Opinions of the AttorneyGeneral 236, 238 (1983). The extremely complicated "maintenance of effort" provisions in ED §
This provision, as well as others related to county funding of a school system, may be said to reflect State preemption of a smaller field within the field of education — namely, fiscal relations between a county and a board of education. ED §
Yet ED §
As we see it, the objection to the Harford County proposal is one grounded in policy concerns, not preemption doctrine. If the county offers a substantial amount of extra money to schools that meet the county's performance standards, the school board will find itself under intense pressure to allow schools to pursue the money. Even if the county's standards are complementary to those set by school officials, the pursuit of the county's money might in practice result in a perceived shift of power away from the school board to the county.
Nevertheless, we cannot transform policy concerns into a legal veto. As long as a county performance grant program remains within the confines discussed above, it is not preempted by or in conflict with the budgetary provisions of the Education Article.
C. Defects in Bill 96-21
Although we conclude that a charter county may establish a grant program along the lines you have proposed, we do find legal defects in certain features of Bill 96-21. First, the proposal appears to require a member of the local board of education to serve on the Harford County Commission on School Performance. In our opinion, a local ordinance cannot require such service by a member of a board whose duties derive solely from State law. Second, the bill apparently requires funding proposals to be submitted by "school improvement teams" composed of teachers and parents, rather than any officer of the school. Because a grant application will make certain representations as to use of the funds by the school, and because a school has the absolute discretion to accept or reject a grant, any application for funding should be made expressly subject to the approval of school authorities. Third, a school seeking a grant must agree that use of the grant money will "help increase student performance and be consistent with [the] school improvement plan." This requirement suggests impermissible county involvement in future programmatic content, as distinct from an assessment of past performance.
In summary, it is our opinion that a charter home rule county may establish a school performance incentive grant program as long as the program is a purely voluntary, non-contractual arrangement that rewards past performance and neither imposes future conditions on the operation of local schools nor interferes with the duties of State or local education authorities.
Very truly yours,
J. Joseph Curran, Jr. Attorney General
Jack Schwartz Chief Counsel Opinions Advice
Robert A. Zarnoch Assistant Attorney General
*Page 27
De Canas v. Bica , 96 S. Ct. 933 ( 1976 )
Pennhurst State School and Hospital v. Halderman , 101 S. Ct. 1531 ( 1981 )
English v. General Electric Co. , 110 S. Ct. 2270 ( 1990 )
McCarthy v. Bd. of Education of AA Co. , 280 Md. 634 ( 1977 )
Howard County v. Potomac Electric Power Co. , 319 Md. 511 ( 1990 )
Allied Vending, Inc. v. City of Bowie , 332 Md. 279 ( 1993 )
Snowden v. Anne Arundel County , 295 Md. 429 ( 1983 )
Ramos v. Montgomery , 313 F. Supp. 1179 ( 1970 )
Mayor of Baltimore v. Sitnick , 254 Md. 303 ( 1969 )
County Council v. Montgomery Ass'n , 274 Md. 52 ( 1975 )
Prince George's County v. Chillum-Adelphi Volunteer Fire ... , 275 Md. 374 ( 1975 )
First Nat. Bank v. Walker County Board of Education , 243 Ala. 576 ( 1943 )