76 [88 Op. Att’y

MUNICIPALITIES

BUDGETARY ADMINISTRATION – APPROPRIATIONS –

APPLICATION OF A SUPERMAJORITY REQUIREMENT IN THE

PUBLIC GENERAL LAW CONCERNING MUNICIPAL FINANCE

March 31, 2003

Lance W. Billingsley, Esquire

Livingston, Livingston, Levitan & Silver, LLC

On behalf of the City of Hyattsville, you have requested our

opinion whether State law requires the City Council to approve a

particular budgetary action by a supermajority vote. Your inquiry

arises out of a proposal during the course of the fiscal year to use

money from the City’s general fund to cover unanticipated

expenditures of the municipal police department. Your inquiry

raises two related questions, which we summarize as follows: 

(1) Does a supermajority provision in Annotated Code of

Maryland, Article 23A, §2(b)(2), apply to this type of proposal and

thus make approval contingent on a two-thirds vote?

(2) Assuming that Article 23A, §2(b)(2) applies and that

Hyattsville’s charter itself does not require a supermajority to

approve this type of action, does the supermajority requirement

violate the municipal home rule amendment, Article XI-E of the

State Constitution? 

In our opinion, the answers to these questions are as follows:

(1) Because the Council’s action is best characterized as a

supplemental appropriation, the supermajority requirement in Article

23A, §2(b)(2) applies. 

(2) Article 23A, §2(b)(2) is a public general law, applicable

to every municipality governed by Article XI-E of the Constitution,

and therefore does not violate the municipal home rule amendment.

In any event, the municipal charter and the statute can be construed

harmoniously so that no conflict exists.
Gen. 76] 77

 The Hyattsville Charter and Code is available on the 1

municipality’s web site, http://www.hyattsville.org/index.html.

 Former Article 23B was repealed by Chapter 228, Laws of 2

Maryland 1994. 

I

Background

Hyattsville is a municipal corporation subject to Article XI-E

of the State Constitution, commonly referred to as the municipal

home rule amendment. The governing body of Hyattsville consists

of the mayor and 10 council members. Hyattsville Charter, §C2-1,

4 Municipal Charters of Maryland, ch. 78. Like charters of 1

numerous municipal corporations throughout the State, the

Hyattsville Charter was modeled after former Article 23B of the

Annotated Code of Maryland. 

2

When it adopted the municipal budget for the current fiscal

year, the Hyattsville City Council appropriated specific funding for

each department of the municipal government, including the police

department. During the course of the fiscal year, a proposal was

made to use part of the unreserved fund balance available in the

City’s general fund to acquire additional vehicles and a rebuilt

engine for the police department. A majority of the Council, but

fewer than two-thirds of the members, supported the proposal. 

You provided us with a detailed analysis arguing that the

Council could approve the fund transfer by a simple majority vote.

You noted that §C5-8 of the Hyattsville Charter provides that “any

transfer of funds between major appropriations for different

purposes shall be approved by the Council....” You also referred to

§C2-3(k) as the Charter procedural provision governing such

transfers. That section requires “[a]t least six (6) affirmative votes

... for the passage of ... ordinances, resolutions, or laws,” i.e., a

simple majority of the body.

At least one Council member argued that a two-thirds majority

vote was required to approve the transfer. You included with your

inquiry a letter from the councilman, explaining his position in detail

and citing Article 23A, §2(b)(2). That statute provides:
78 [88 Op. Att’y

In addition to, but not in substitution of,

the powers which have been, or may hereafter

be, granted to it, [a municipal] legislative body

also shall have the following express

ordinance-making powers:

 ... 

 (2) To expend municipal funds for any

purpose deemed to be public and to affect the

safety, health, and general welfare of the

municipality and its occupants, provided that

funds not appropriated at the time of the

annual levy, shall not be expended, nor shall

any funds appropriated be expended for any

purpose other than that for which

appropriated, except by a two-thirds vote of

all members elected to said legislative body.

Article 23A, §2(b)(2) (emphasis supplied).

In your letter, you argued that the supermajority requirement

prescribed in Article 23A, §2(b)(2) did not pertain to the Council’s

action, because the funds had previously been appropriated – that is,

for unanticipated expenditures – and the transfer in question was

consistent with that purpose. Furthermore, you suggested that, to the

extent Article 23A, §2(b)(2) conflicts with the Hyattsville Charter,

it is inconsistent with the principles of municipal home rule. You

asked whether we agree with that analysis.

II

Whether the Supermajority Requirement Applies

We first address whether or not the Council’s fund transfer

comes within the scope of the supermajority provision of Article

23A, §2(b)(2). That provision applies if the funds in question were

“not appropriated at the time of the annual levy” or if the proposed

expenditure is “for any purpose other than that for which [the funds

were] appropriated.” 

A. Hyattsville Budget Process

The Hyattsville Chartersets out detailed procedures governing

municipal finances. At least 32 days before the start of the fiscal

year, the Mayor, or the Finance Committee Chairman acting at the
Gen. 76] 79

 We understand that normally the City has found it necessary to 3

reduce projected expenditures at this stage to arrive at a balanced budget.

direction of the Mayor, must submit to the Council a proposed

balanced budget, providing a complete financial plan for the

municipal government for the following fiscal year. The Council

must hold a public hearing on the proposed budget, after which it

may either increase or reduce proposed expenditures. If the Council

increases spending, it must also provide for increased revenues. The

budget must be prepared and adopted in the form of an ordinance by

at least a majority of the Council. See Hyattsville Charter, §§C5-4

through C5-6. Absent an appropriation by the Council, public

money may not be spent. Id., §C5-7. Under the Charter, any

transfer of money between major appropriations for different

purposes requires Council approval. Id., §C5-8.

You indicate that the Council allocates excess anticipated

revenue, including surplus funds available at the close of the prior 3

fiscal year, to the unreserved fund balance in the City’s general fund.

We understand that this balance is treated as a reserve fund,

available to cover unanticipated expenditures during the course of

the fiscal year. In other words, surplus revenues apparently are

treated as a rainy day account. However, unlike a nonlapsing reserve

fund, if revenue in the general fund is not spent during the fiscal

year, it is included as anticipated revenue for the subsequent fiscal

year. Charter, §C5-10.

You suggest that, to the extent that the Council allocates to the

general fund a specific level of anticipated revenue earmarked for

unanticipated expenditures at the time the budget is adopted, the

Council has in fact “appropriated the money” for a designated

purpose – i.e., unanticipated expenditures. Thus, you reason, the

supermajority requirement of Article 23A, §2(b)(2) simply does not

apply to the Council’s action to devote those funds to a specific

unanticipated expenditure, because the funds have already been

appropriated for that purpose.

We respectfully disagree with that conclusion because we do

not believe that the allocation of funds to the unreserved balance of

the City’s general fund is itself an appropriation. 
80 [88 Op. Att’y

 15 McQuillin, The Law of Municipal Corporations §39.60 (3d 4

ed. rev. 1995).

 4 Sands & Libonati, Local Government Law §26.07. 5

 Most municipalities in Maryland use a hybrid form of budget, 6

employing characteristics of a line-item budget as well as other formats,

namely, program or performance budgeting. Handbook for Maryland

Municipal Officials, pp. 63-65 (1991). 

 The State budget each year designates moneys for a contingent 7

fund to be used by the Board of Public Works for expenditures related to

unforeseen circumstances. See, e.g., Chapter 102, Item DE01.02

($750,000), Laws of Maryland 2001. However, the creation of this

contingent fund is explicitly sanctioned by the Constitution. See Maryland

Constitution, Article III, §32; see also 73 Opinions of the Attorney

General 43, 54 (1988). 

B. What Constitutes an Appropriation

The Court of Appeals has described an “appropriation” as an

authorization to disburse funds. City of Annapolis v. Anne Arundel

County, 347 Md. 1, 12, 698 A.2d 523 (1997). Leading treatises on

municipal law define an “appropriation” as “the setting apart of a

designated sum for a particular purpose or purposes” and “an

4

authorization granted by a legislative body to make expenditures and

to incur obligations for a specific purpose.” Essentially, an 5

appropriation permits the expenditure of public money for a

legislatively-authorized public purpose. 

Of course, the level of detail in an appropriation may vary

depending on the budget system that a municipality employs. The 6

level of detail in the budget, in turn, will affect the application of the

supermajority requirement. But an “appropriation” under any type

of budgetary format requires some level of specificity beyond

“unanticipated expenditures.” In our view, the setting aside of 7

anticipated revenues for no purpose other than “unanticipated

expenditures” lacks the necessary specificity to constitute an

appropriation. Rather, the Council’s action in setting aside surplus

revenue at the time the budget was adopted is better described as

apportionment of revenue to a specified fund for unanticipated

expenditures, short of an “appropriation.” See 15 McQuillin, The

Law of Municipal Corporations, §39.65. 
Gen. 76] 81

 This is not to say that a municipal budget could not include an

8

appropriation for a contingency fund within some specific category of

expenditures consistent with the municipality’s budgetary format.

 Article XI-E, §1, of the Constitution reads:

9

Except as provided elsewhere in this Article, the

General Assembly shall not pass any law relating

(continued...)

Thus, in our opinion, the unreserved fund balance in the City’s

general fund was not “appropriated” at the time of adoption of the

municipal budget, even if it was earmarked generally for

unanticipated expenditures. A later authorization to spend those

funds for police equipment was therefore a mid-year supplemental

appropriation that triggered the supermajority requirement under

Article 23A, §2(b)(2).8

We next consider whether application of the supermajority

requirement of Article 23A, §2(b)(2) in these circumstances would

violate the constitutional principle of municipal home rule.

III

Constitutionality of Supermajority Requirement

A. Municipal Home Rule

The municipal home rule amendment to the State Constitution,

ratified by the voters in 1954, was intended to allow municipalities

to govern themselves in local matters. Inlet Associates v. Assateague

House Condominium Association, 313 Md. 413, 425, 545 A.2d 1296

(1988). The home rule amendment grants a municipality the

authority “to amend ... an existing charter ... relating to the

incorporation, organization, government, or affairs of said municipal

corporation” in accordance with the Constitution and its

implementing legislation. Article XI-E, §§3 and 4; see also Article

23A, §§11-18. Subject to limited exceptions not pertinent here, the

General Assembly is prohibited from enacting legislation for

municipalities except by public general law applicable to every

municipality in a permissible class. Article XI-E, §1; see also 58

Opinions of the Attorney General 153 (1973). 

9
82 [88 Op. Att’y

 (...continued) 9

to the incorporation, organization, government, or

affairs of those municipal corporations which are

not authorized by Article 11-A of the Constitution

to have a charter form of government which will

be special or local in its terms or in its effect, but

the General Assembly shall act in relation to the

incorporation, organization, government, or affairs

of any such municipal corporation only by general

laws which shall in their terms and in their effect

apply alike to all municipal corporations in one or

more of the classes provided for in Section 2 of

this Article. It shall be the duty of the General

Assembly to provide by law the method by which

new municipal corporations shall be formed.

Although the Constitution allows the Legislature to classify municipalities

by population into not more than four classes, Article XI-E, §2, the

General Assembly has declared that all municipal corporations subject to

Article XI-E constitute a single class. Article 23A, §10. 

While Article 23A, §2, itself predated municipal home rule, the 10

Home Rule Amendment continued pre-existing laws in effect until

amended or repealed. Maryland Constitution, Article XI-E, §6. 

In Article 23A of the Annotated Code of Maryland, the

General Assembly has implemented the home rule amendment.

Article 23A, §1 grants the governing body of a municipal

corporation the power to “pass and adopt ... ordinances, resolutions,

or bylaws necessary or proper to exercise the powers [granted the

municipality],” while §2 implements Article XI-E by a grant of

express powers. Inlet Associates, 313 Md. at 425. 10

Thus, the governing body of a municipality derives its

legislative authority from two distinct sources – (1) the municipal

charter, and (2) public general law enacted by the General Assembly.

See, e.g., McRobie v. Town of Westernport, 260 Md. 464, 470, 272

A.2d 655 (1971) (municipal corporation may obtain authority to

dispose of property held in governmental capacity through either

public general law or charter amendment); see also 80 Opinions of
Gen. 76] 83

 In proposing the municipal home rule amendment, the drafters 11

recognized that the final determination of the scope of a municipal

corporation’s authority under the Constitution is best left to the courts.

See Commission on Administrative Organization of the State, Second

Report: Local Legislation is Maryland, p. 32 (1952) (“Sobeloff

Commission”).

the Attorney General 227, 229 (1995). The two sources of authority

may in some circumstances overlap.11

If there is a conflict between a municipal charter and a public

general law, the public general law controls. In particular, the

Constitution provides that “[a]ll charter provisions ... adopted under

[Article XI-E] shall be subject to all applicable laws enacted by the

General Assembly;” Maryland Constitution, Article XI-E, §6; see

also Coalition for Open Doors v. Annapolis Lodge No. 622, 333 Md.

359, 379, 635 A. 2d 412 (1994) (if public general law and municipal

ordinance conflict, latter is preempted and thus invalid). 

Differences between a public general law and a municipal

charter do not necessarily constitute a conflict. Standards set forth

in a public general law such as Article 23A are viewed as

“‘minimum requirements with respect to the affairs of

municipalities, [but] ... municipalities are not prohibited by the

[Municipal Home Rule] Amendment or the statute from providing

such additional standards and safeguards as to them seem

appropriate.’” Inlet Associates, 313 Md. at 429, quoting Reed v.

President and Comm’rs of North East, 226 Md. 229, 249, 172 A.2d

536 (1961). Thus, provisions of public general law and local charter

provisions governing municipal finance must be construed together.

B. State Regulation of Municipal Finance

A municipality has broad spending authority. In construing

that authority under a municipal charter similar in scope to

Hyattsville’s, the Court of Appeals noted:

[T]he Town is expressly authorized “to

expend municipal funds for any purpose.”

This power is extensive, limited only by the

Constitutional restriction imposed by Article

15 of the Declaration of Rights that taxes

must be laid (and public money spent) “with a
84 [88 Op. Att’y

political view for the good government and

benefit of the community.”

Williamsport v. Sanitary District, 247 Md. 326, 331, 231 A. 2d 40

(1967). Similarly, Article 23A, §2(b)(2) provides expansively that

a municipality may enact ordinances “[t]o expend municipal funds

for any purpose deemed to be public and to affect the safety, health,

and general welfare of the municipality and its occupants....” 

The public general law sets forth some procedures for the

exercise of this broad municipal spending authority. For example,

State law prescribes the fiscal year that each municipal corporation

must use. Annotated Code of Maryland, Article 24, §1-102. It fixes

the time frame in which the municipal property tax rate must be set

and, if the constant yield rate is to be exceeded, it prescribes the

procedures a town must follow to set the local property tax rate.

Annotated Code of Maryland, Tax-Property Article (“TP”), §§6-303

and 6-308. Under certain circumstances, State law authorizes a

municipal governing body to alter a rate prescribed in a municipal

charter. TP §6-303(b). 

Each town must maintain a uniform system of financial

accounting determined by the Department of Legislative Services

and, after the close of the fiscal year, file a financial report with the

Department or risk loss of State funds. Annotated Code of

Maryland, Article 19, §§36-39. A municipal corporation must have

its finances audited in accordance with State law and file an audit

report with the State Auditor. Article 19, §40. Each municipal

corporation must adopt investment guidelines in accordance with

those established by the State Treasurer for investment of municipal

funds. Annotated Code of Maryland, Article 95, §22F. Other

provisions of State law govern the issuance of municipal debt.

Article 23A, §§31-39; Article 31, §12. 

This list is simply illustrative of State regulation of municipal

finance. The supermajority requirement set forth in Article 23A,

§2(b)(2) is another public general law that establishes minimum

procedural requirements for certain actions related to municipal

finance. Any charter provision governing supplemental

appropriations or budget amendments must be construed together

with the supermajority requirement in Article 23A, §2(b)(2).
Gen. 76] 85

 Former Article 23B was never actually law. It was merely a 12

model available for use by any community desiring to adopt it. Campbell

v. Mayor and Aldermen of Annapolis, 289 Md. 300, 310, 424 A. 2d 738

(1981). The editor’s note accompanying Article 23B in the 1990

replacement volume of the Annotated Code stated that “[Article 23B] is

not an effective charter for all towns and it does not actually apply to any

municipal corporation. Its sole function is to serve as a guide or model for

municipal corporations if and when they revise their charters.”

C. Whether There is a Conflict between State Law and the

Municipal Charter 

As you note, the finance provisions in the Hyattsville Charter

were apparently patterned after former Article 23B – a model charter

enacted by the General Assembly shortly after the adoption of

municipal home rule. Neither former Article 23B nor the 12

Hyattsville Charter includes a supermajority requirement similar to

the one in Article 23A, §2(b)(2). 

As stated above, if public general law and a local charter

provision conflict, the public general law controls. Thus, if a

municipal corporation adopted the model charter in former Article

23B verbatim, to the extent it conflicted with Article 23A, the

provisions of the latter article would control. Inlet Associates, 313

Md. at 430 n. 4. However, in construing a local law, any reasonable

doubt as to its validity should be resolved in its favor. Reed v.

President and Comm’rs of North East, 226 Md. at 248; see also 1A

Singer, Statutes and Statutory Construction §30:5 (6 ed. 2002 rev.) th

(“There is ... a presumption that ... two laws can operate

harmoniously. ... [S]pecific ordinances are presumed to be consistent

with ... general state law. ... A statute and ordinance will not be held

to be repugnant to one another if any reasonable construction

upholding both can be reached.”). 

In our view, the supermajority requirement of Article 23A,

§2(b)(2) and the procedures in the Hyattsville Charter are easily

reconciled. The supermajority requirement is a minimum procedural

requirement governing supplemental appropriations and alternative

use of funds during the course of the fiscal year. The applicable

procedure under the Hyattsville Charter requires “[a]t least six (6)

affirmative votes ... for the passage of all ordinances, resolutions or

laws,” or in other words, a simple majority. Charter, §C2-3(k)

(emphasis supplied). Thus, as a general rule, a simple majority of
86 [88 Op. Att’y

 Article 23B, §11 provided, in part, that “no ordinance shall be 13

approved nor any other action taken without the favorable votes of a

majority of the whole number of members elected to the council.”

 Of course, since Article 23A prescribes minimum requirements,

14

a municipal charter could require that the governing body approve a

supplemental appropriation by a greater majority, e.g., by a three-quarters

vote. But if the charter specifically authorized such actions by a simple

majority, the two-thirds requirement under Article 23A, §2(b)(2) would

trump the charter provision and the public general law would control.

In your letter, you state that the town might avoid triggering the 15

supermajority requirement in Article 23A, §2(b)(2) by making more

general appropriations, although such a move would be contrary to the

intent of Governmental Accounting Standard Board guidelines. We

decline to express an opinion on specific budgetary formats or their impact

on financial reporting requirements. We simply note that any action under

Article 23A, §2(b)(2) should be reflected in the municipal government’s

financial statements.

the full membership of the Council is adequate for the adoption of

an ordinance or resolution, including adoption of the annual budget.

Neither this provision, nor similar language under Article 23B,13

would conflict with a provision that requires a supermajority vote to

take a specific type of action. Article 23A, §2(b)(2) simply

delineates an exception, and imposes a stricter requirement for

certain types of budgetary actions.14

In our view, the procedural provisions of §C2-3(k) and §C5-8

of the Hyattsville Charter, governing transfer of funds between

major appropriations, can be interpreted in harmony with the

supermajority requirement of Article 23A, §2(b)(2).15

IV

Conclusion

Article 23A, §2(b)(2) requires that any supplemental

appropriation during the course of the fiscal year be approved by at

least a two-thirds majority of the municipal governing body. This

requirement is a public general law applicable to every municipal

corporation and therefore does not offend municipal home rule. In

our opinion, the Council’s action described in your letter was a

supplemental appropriation, to which the supermajority requirement
Gen. 76] 87

applied. That requirement can be construed consistently with the

City Charter provision that requires an affirmative vote of “at least”

a majority of the City Council.

J. Joseph Curran, Jr.

Attorney General

William R. Varga

Assistant Attorney General

Robert N. McDonald

Chief Counsel

 Opinions and Advice