354 [79 Op. Att’y

 A “serious crime” is defined as any felony and certain 1

misdemeanors and other offenses. See Article 27A, §2(h).

PUBLIC DEFENDER

ADMINISTRATIVE LAW ) RULEMAKING ) PUBLIC INFORMATION

ACT ) STATUS OF ELIGIBILITY CRITERIA

May 13, 1994

The Honorable Robert C. Nalley

Chairman, District Advisory Board

District No. 4 of the Public Defender System

You have requested our opinion concerning the legal status of

the criteria used by the Public Defender to determine the eligibility

of individuals for representation by that office. Specifically, you ask

whether the criteria are “regulations” under the Administrative

Procedure Act and whether they are open to inspection by the public

or by the District Advisory Board.

For the reasons stated below, we conclude that the eligibility

criteria of the Public Defender constitute a “regulation,” within the

meaning of the Administrative Procedure Act, and therefore are not

enforceable unless properly adopted under the APA. Moreover, the

criteria are open to inspection by any member of the public. 

I

Eligibility For Representation By Public Defender

Under Article 27A, §4(a), “[i]t shall be the primary duty of the

Public Defender to provide legal representation for any indigent

defendant eligible for services under this article.” An “indigent”

defendant is “any person taken into custody or charged with a

serious crime ... who under oath or affirmation subscribes and states

in writing that he is financially unable, without undue hardship, to

provide for the full payment of an attorney and all other necessary

expenses of legal representation.” Article 27A, §2(f).1
Gen. 354] 355

 This approach to eligibility is common in State programs of 2

financial assistance. See, e.g., COMAR 07.03.17.10J (schedule of income

(continued...)

The Public Defender unquestionably has authority to determine

whether a defendant is “indigent” and therefore potentially eligible

for representation by the Office of the Public Defender. Article

27A, §7(a) provides as follows:

Eligibility for the services of the Office of

the Public Defender shall be determined on

the basis of the need of the person seeking

legal representation. Need shall be measured

according to the financial ability of the person

to engage and compensate competent private

counsel and to provide all other necessary

expenses of representation. Such ability shall

be recognized to be a variable depending on

the nature, extent and liquidity of assets; the

disposable net income of the defendant; the

nature of the offense; the effort and skill

required to gather pertinent information; the

length and complexity of the proceedings; and

any other foreseeable expenses.

In theory, the Office of the Public Defender might administer these

eligibility provisions on an entirely individualized basis, through an

ad hoc assessment of each applicant’s financial ability. 

 The Public Defender’s current eligibility regulation, set out in

COMAR 14.06.03.04, recapitulates the statutory provisions and

incorporates certain “guidelines” drawn from Baldwin v. State, 51

Md. App. 538, 444 A.2d 1058 (1982). But the regulation, too, is

sufficiently general in its terms so that it might be applied case-bycase if the agency chose to administer the law in that manner.

As a matter of sound administrative practice, however, some

more specific guidelines or criteria are probably necessary. And, in

fact, the office does use certain precise criteria to assess an

application for representation. A manual used by intake personnel

contains a grid, arranged by income levels and number of

dependents. This grid plays a key role in eligibility determinations.

An applicant with income in excess of the amount allocated for a

particular number of dependents will be denied representation.2
356 [79 Op. Att’y

 (...continued) 2

limits by household size to determine eligibility for Food Stamp Program).

 For a detailed review of the history, purpose, and requirements of 3

the “regulation” component of the Administrative Procedure Act, see 75

Opinions of the Attorney General 37 (1990).

The Office of the Public Defender is concerned that, if these

specific criteria were known, defendants might tailor their

applications to meet them. Thus, the office has not adopted these

criteria by regulation or otherwise made them public. Your letter

also mentions the disinclination of the Public Defender to disclose

the criteria to the District Advisory Board, which evidently sought

them as part of its effort to “study and observe the operation of the

District Public Defender Office” and to “advise the Public Defender

and the District Public Defender with respect to ... matters pertaining

to the operation of the District Public Defender Office and the Public

Defenders System.” Article 27A, §10(c). 

II

Application of Rulemaking Requirements

A. Rulemaking Requirements Generally

The Administrative Procedure Act, which under §10-102(a) of

the State Government Article (“SG” Article) applies to virtually

every unit in the Executive Branch, prescribes the procedural

requirements for the adoption of a regulation. If an agency’s action 3

is a “regulation,” as that term is defined in the APA, “the action may

be taken only in accordance with the rulemaking procedures

contained in the [APA].” CBS, Inc. v. Comptroller, 319 Md. 687,

692, 575 A.2d 324 (1990). See also, e.g., 76 Opinions of the

Attorney General 19, 22 (1991); 68 Opinions of the Attorney

General 9, 11 (1983); 65 Opinions of the Attorney General 396, 404

(1980). 

If an agency takes an action subject to the APA’s rulemaking

process but fails to comply with these procedural requirements, the

agency’s action is unenforceable. SG §10-125(d)(3). See, e.g., 78

Opinions of the Attorney General 8, 14 (1993) (interagency

“memorandum of understanding” regarding eligibility for certain
Gen. 354] 357

employment services unenforceable because it had not been adopted

in accordance with the APA); 76 Opinions of the Attorney General

3 (1991) (statement by Physical Therapy Board about scope of

practice of physical therapy of no legal effect because it had not been

adopted in accordance with the APA); 57 Opinions of the Attorney

General 478, 479-80 (1972) (eligibility requirement for welfare

program invalid and unenforceable because it had not been adopted

in accordance with the APA). 

B. Definition of “Regulation”

The APA defines the term “regulation” quite broadly:

(1) ‘Regulation’ means a statement or an amendment or

repeal of a statement that:

(i) has general application;

(ii) has future effect;

(iii) is adopted by a unit to:

1. detail or carry out a law that the unit

administers;

2. govern organization of the unit;

3. govern the procedure of the unit;

4. govern practice before the unit; and 

(iv) is in any form, including:

1. a guideline;

2. a rule;

3. a standard;

4. a statement of interpretation;

5. a statement of policy.

(2) Regulation does not include:

(i) a statement that:

1. concerns only internal management of the

unit; and 

2. does not affect directly the rights of the

public or the procedures available to the public.
358 [79 Op. Att’y

 As one commentator has stated, a broad construction is “necessary

4

to defeat the inclination shown by some agencies to label as ‘bulletins,’

‘announcements,’ ‘guides,’ ‘interpretive bulletins,’ and the like,

announcements which, in legal operation and effect, really amount to rules

and then to assert that [they] are not technically rules but merely policy

statements, and hence may be issued without observance of the procedures

required in connection with the adoption of rules.” 1 Cooper, State

Administrative Law 108 (1965).

(ii) a response of the unit to a petition for adoption

of a regulation ...; or

(iii) a declaratory ruling of the unit as to a

regulation, order, or statute ....

SG §10-101(e).

Although the Court of Appeals has eschewed any “allencompassing statement” of the circumstances under which

rulemaking is legally required, the Court cited with approval a

number of out-of-state cases holding “that legislative intent

mandates use of the rulemaking process when the agency action falls

within the statutory definition of ...’regulation.’” CBS Inc. v.

Comptroller, 319 Md. at 694. See also, e.g., Ex parte Traylor

Nursing Home, Inc., 543 So. 2d 1179, 1183 (Ala. 1988); Senn Park

Nursing Center v. Miller, 455 N.E.2d 153, 157 (Ill. App. 1983), aff’d

in part and rev’d in part on other grounds, 470 N.E.2d 1029 (Ill.

1984); Burke v. Children’s Services Division, 552 P.2d 592 (Or.

App. 1976), aff’d, 607 P.2d 141 (Or. 1980). This office, too, “has

consistently construed the definition of ‘regulation’ as broadly as its

language and apparent underlying intent direct.” 72 Opinions of the

Attorney General 313 (1987) (Maryland Racing Commission’s

policy regarding Arabian racing). See also, e.g., 70 Opinions of the

Attorney General 208 (1985) (automatic waiver program as to

certain tax penalties); 66 Opinions of the Attorney General 151

(1981) (Home Improvement Commission policy change). 

4

In our view, the criteria for evaluating the alleged indigency of

defendants seeking representation by the Public Defender fall within

the definition of “regulation.” The criteria are “a statement” having

“general application” to all defendants applying for representation,

and this statement has “future effect” for that class of defendants.

SG §10-101(e)(1)(i) and (ii). Further, the criteria were adopted by
Gen. 354] 359

 The Public Defender is empowered under Article 27A, §5(3) to

5

formulate and adopt regulations “to effectuate the purposes of this article

and to promote the efficient conduct of the work and general

administration of the office ....”

 Many details of the application process contained in the Public 6

Defender’s intake manual undoubtedly do satisfy this test for the internal

management exception. Cf. 61 Opinions of the Attorney General 3, 4

(1976) (rules governing procedures for panel attorneys are within internal

(continued...)

the Public Defender to “detail or carry out a law that the unit

administers.” SG §10-101(e)(1)(iii)1. And, in light of SG §10-

101(e)(1)(iv), the form of the criteria ) a chart within a manual ) is

immaterial. 

5

C. “Internal Management” Exclusion

The APA’s definition of “regulation” contains three express

exclusions: statements concerning “internal management”;

responses to petitions for the adoption of regulations; and

declaratory rulings. SG §10-101(e)(2). Obviously, the eligibility

criteria of the Public Defender are neither a response to a petition for

adoption of a regulation nor a declaratory ruling. Accordingly, they

are excluded from the definition of “regulation” only if they fall

within the “internal management” exception ) that is, if the

“statement” embodying the criteria (1) “concerns only [the] internal

management of the unit”; and (2) “does not affect directly the rights

of the public or the procedures available to the public.”

Whether the eligibility criteria are exempt from rulemaking by

virtue of the “internal management” exception depends primarily on

their effect on the public. The exception applies only if there is no

significant effect either on the “procedural steps that interested

persons must take in their dealings with the agency or the allocation

of substantive benefits or burdens.” 72 Opinions of the Attorney

General 230, 235-36 (1987) (State’s smoking policy guidelines fall

within “internal management” exception).

Examples of statements that have little effect on the public

include instructions merely “spell[ing] out operational details like

what forms to fill out, what approvals to obtain, or what evidence to

look at to determine whether an applicant meets a statutory

standard.” 72 Opinions of the Attorney General at 235. Statements 6
360 [79 Op. Att’y

 (...continued) 6

management exception).

 In light of this conclusion, we need not consider whether the 7

District Advisory Council would have an entitlement to inspect the criteria

even if the public generally did not.

that have a greater effect on the public include those that “impose

application procedures, establish eligibility criteria not set forth in

a statute, restrict access to a statutory benefit, or impose fees.” Id.

(emphasis added).

In a pertinent and instructive case, the Connecticut Supreme

Court struck down that state’s attempt to rely on a prior approval

requirement, which had not been adopted in accordance with the

Connecticut APA, to deny public assistance benefits to pay the

moving expenses to an otherwise qualified applicant. Walker v.

Commissioner, Dept. of Income Maintenance, 446 A.2d 822 (Conn.

1982). The court held that the internal management exception did

not apply to the addition of the prior approval process, because such

a process “affects the substantial rights of the potential recipients.”

446 A.2d at 825.

Given that the eligibility criteria directly affect the rights of

potential recipients of the legal services of the Public Defender, the

internal management exception cannot apply. Someone who earns

less than a given dollar amount will obtain representation; someone

who earns more will not. The APA is intended to ensure that the

affected members of the public will have a chance to comment on an

agency’s line-drawing exercise of this kind. Eligibility criteria that

have a substantial impact on the rights of defendants applying for

representation may be given effect only if adopted through the APA

rulemaking process. 

III

Public Disclosure

Once the eligibility criteria are proposed as a regulation,

obviously they will be public. But even before that time, we

conclude that the criteria are open to public inspection. Under SG 7

§10-613(a), “[e]xcept as otherwise provided by law, a custodian

shall permit a person or government unit to inspect any public record
Gen. 354] 361

 The criteria are a “public record.” See SG §10-611(f). 

8

 While we recognize the Public Defender’s legitimate concern 9

about applications that might be tailored to meet known criteria, other

agencies respond to this problem by including verification requirements

in their regulations. See, e.g., COMAR 07.03.17.07A (Food Stamp

Program requires “the use of third party information or documentation to

establish the accuracy of statements on the application”). If such

verification measures were judged not feasible for the Public Defender’s

intake process, a change in the statute will be necessary to exempt the

eligibility criteria from APA rulemaking requirements and the Public

Information Act.

at any reasonable time.” No provision of the Public Information 8

Act, or any other law of which we are aware, would authorize the

Public Defender to deny a request to inspect the criteria. 

9

IV

Conclusion

In summary, it is our opinion that the eligibility criteria

established by the Public Defenders Office must be adopted under

the rulemaking procedures of the Administrative Procedure Act in

order to be legally effective. These criteria are open to public

inspection. 

J. Joseph Curran, Jr.

Attorney General

Jack Schwartz

Chief Counsel

 Opinions & Advice