38 [106 Op. Att’y

BUDGETARY ADMINISTRATION

BOARD OF PUBLIC WORKS – ADMINISTRATIVE LAW – REDUCTION OF APPROPRIATIONS – WHETHER THE BOARD 

OF PUBLIC WORKS MAY RECONSIDER ITS PRIOR 

APPROVAL OF BUDGET REDUCTIONS PROPOSED BY THE 

GOVERNOR UNDER SECTION 7-213 OF THE STATE FINANCE 

& PROCUREMENT ARTICLE – WHETHER THE BOARD MAY 

IMPOSE CERTAIN CONDITIONS ON APPROVAL OF SUCH 

REDUCTIONS.

March 22, 2021

John T. Gontrum, Esquire

Executive Secretary, Board of Public Works

You have requested our opinion on two questions relating to 

the authority of the Board of Public Works (the “Board”) to 

approve the reduction of an appropriation in the budget under the 

Maryland statute that allows for such reductions. See Md. Code 

Ann., State Fin. & Proc. (“SFP”) § 7-213. First, you ask what 

authority the Board has to reconsider a reduction that it has 

approved. Second, you ask whether the Board, when approving a 

reduction, may provide that “the fulfillment of specified 

conditions” would either automatically rescind the Board’s 

approval of the reduction or automatically require that the Board 

reconsider the reduction.

As to your first question, in our opinion, the Board may 

reconsider and rescind its vote approving a reduction under SFP § 7-213 up until the time the reduction takes effect. After a 

reduction takes effect, however, the Board lacks the power to 

reconsider its approval, rescind its approval, or otherwise restore 

the appropriation. As for when the reduction takes effect, a 

reduction implemented through a budget amendment under SFP 

§ 7-209—the way that such reductions have historically been 

implemented—takes effect “when the Governor sends notice of 

the amended appropriation to the Comptroller.” SFP § 7-209(g). 

A reduction that is not implemented using the budget amendment 

procedures in § 7-209 would take effect when the Governor signs 

the document implementing the reduction, unless the document 

specifies an effective date, in which case the reduction would take 

effect on that date.
Gen. 38] 39

As to your second question, there is significant uncertainty 

as to whether the Board may impose any conditions when 

exercising its authority under SFP § 7-213, let alone a condition 

that would result in automatic rescission or reconsideration of the 

Board’s approval of a budget reduction based on the future 

occurrence of some specified event. Although it is often the case 

that the express power of an agency to disapprove an action carries 

with it the implicit power to approve that action with conditions, 

we have serious doubts that the General Assembly intended to 

grant the Board authority to impose conditions under SFP § 7-213, 

given the Board’s especially narrow role under the statute and the 

constitutional questions that could arise by allowing the Board to 

impose conditions. While we cannot say with certainty that the 

Board categorically lacks the power to impose a condition 

providing for automatic rescission of its approval upon the 

occurrence of a specified event, the Board could achieve essentially 

the same result, without raising any questions as to the legality of 

its actions, simply by deferring a vote on the Governor’s proposed 

reductions (or declining to approve those reductions) until after the 

contemplated event has (or has not) come to pass. For that reason, 

we advise the Board against imposing any such conditions, given 

the legal uncertainty of that approach and the availability of an 

unquestionably legal alternative. 

I 

Background

A. The State Budget Process

Maryland’s budget system was established in 1916 by an 

amendment to the State Constitution. Md. Const., Art. III, § 52; 

1916 Md. Laws, ch. 159. Under the present budget system, the 

Governor submits to the General Assembly each January a budget 

for the upcoming fiscal year, which shall “contain a complete plan 

of proposed expenditures and estimated revenues for said fiscal 

year,”1 along with a budget bill containing all of the appropriations 

to authorize the proposed expenditures. Md. Const., Art. III, 

§ 52(3) and (5). In developing the spending plan, the Governor 

may revise the spending estimates proposed by State agencies, 

 1 That “complete plan” is embodied in the budget books, a multi- volume publication that details the State’s annual operating budget, 

organized by unit of State government. Letter from Richard E. Israel, 

Assistant Attorney General, to the Honorable R. Clayton Mitchell, 

Speaker of the House of Delegates (Jan. 10, 1991). 
40 [106 Op. Att’y

except those for the General Assembly, for the Judiciary, and for 

the public schools, as provided by law. Id. § 52(11). Similarly, for 

those programs for which a law prescribes a level of funding, the 

Governor may not reduce the estimate below the level prescribed 

by law. Id. § 52(12). After the submission of the budget bill to the 

General Assembly (until it is finally acted upon), the Governor 

may, with the General Assembly’s consent, amend or supplement 

the budget bill. Id. § 52(5).

Except for appropriations relating to the legislative and 

judicial branches, the General Assembly may only “strike out or 

reduce” items of appropriation.2

 Md. Const., Art. III, § 52(6). It 

may not amend the budget bill so as to increase an appropriation 

for an executive branch program. Id. If the General Assembly 

wants to initiate an appropriation for an executive branch program, 

it may do so only by way of a supplementary appropriation bill, 

which must be embodied in a separate bill limited to a single 

purpose and must levy a tax to support the appropriation.3

 Id. § 52(2) and (8). “In this manner the Governor and the General 

Assembly together, with the Governor having a preeminent role, 

enact a budget for the ensuing fiscal year based on departmental 

estimates of needs and on estimated revenues.” Judy v. Schaefer, 331 Md. 239, 250 (1993). This design was meant to ensure a 

balanced State budget, and since 1974, Article III, § 52(5a) has 

“expressly mandate[d] that the Governor propose and maintain a 

balanced budget.” Judy, 331 Md. at 249.4

 2 The General Assembly may not amend the budget bill so as to affect 

State debt obligations, the provisions made by law for the establishment 

and maintenance of public schools, or the payment of constitutionally 

mandated salaries, nor may it amend the budget bill to decrease the salary 

or compensation of any public officer during the officer’s term of office. 

Md. Const., Art. III, § 52(6). 

3 A constitutional amendment ratified by the voters at the general 

election on November 3, 2020, authorizes the General Assembly, 

beginning with the Fiscal Year 2024 budget bill, to increase or add items 

for executive branch programs, provided the total of appropriations for 

executive branch programs does not exceed the total proposed by the 

Governor. 2020 Md. Laws, ch. 645. 

4 Subsection (5a) was added to Article III, § 52 by 1973 Md. Laws, 

ch. 745. It states: 

The Budget and the Budget Bill as submitted by the 

Governor to the General Assembly shall have a figure for 

the total of all proposed appropriations and a figure for the 

total of all estimated revenues available to pay the 
Gen. 38] 41

The State’s budget system was adopted at the recommendation

of the Commission on Efficiency and Economy (known as the 

“Goodnow Commission”), which had been directed by the 

Democratic Party platform to consider two options for who would 

play that dominant role in the budget process, i.e., who would make 

the final budget estimates for submission to the General Assembly: 

either the Governor alone or the Board of Public Works, which is 

composed of the Governor, the Comptroller, and the Treasurer. 

Report of the Commission on Economy and Efficiency on a Budget 

System, Maryland Senate Journal, 1916 Sess., at 129-134 (Jan. 28, 

1916) (“Goodnow Report”); see also Alan M. Wilner, The 

Maryland Board of Public Works: A History 80 (1984). The 

rationale for selecting the Governor, rather than the Board, was 

explained in the Goodnow Report as follows:

We have concluded that this responsibility 

should be placed upon the Governor. We 

have felt that to make use of the Board of 

Public Works as a Budget Commission would 

have the disadvantage of dissipating personal 

responsibility for financial propositions, and 

would also run the risk of not securing party 

responsibility.

Goodnow Report at 131.

 

appropriations, and the figure for total proposed 

appropriations shall not exceed the figure for total 

estimated revenues. Neither the Governor in submitting 

an amendment or supplement to the Budget Bill nor the 

General Assembly in amending the Budget Bill shall 

thereby cause the figure for total proposed appropriations 

to exceed the figure for total estimated revenues, 

including any revisions, and in the Budget Bill as enacted 

the figure for total estimated revenues always shall be

equal to or exceed the figure for total appropriations. 

(emphasis added). This requirement is an ongoing one that applies not 

just at the time of the budget’s enactment. See Judy, 331 Md. at 260 

(rejecting as inconsistent with the language and history of Article III, 

§ 52 the contention “that the balanced budget requirement was intended 

to apply only during the preparation of the budget and its passage”). At 

the same time, we have recognized that it is not “constitutionally 

necessary for the Budget to in fact be balanced subsequent to its 

enactment at every moment in time throughout the fiscal year.” 61

Opinions of the Attorney General 59, 60 (1976) (emphasis in original). 
42 [106 Op. Att’y

B. The Budget Reduction Statute

Aside from the ongoing requirement to maintain a balanced 

budget, Article III, § 52 does not speak to the administration of the 

State budget after its enactment. It does, however, authorize the 

General Assembly to enact “such laws not inconsistent with” that 

section as may be “necessary and proper” to carry out its 

provisions. Md. Const., Art. III, § 52(13). Pursuant to that 

provision, the General Assembly has established a statutory 

scheme for the administration of the budget.

Much of that statutory scheme is codified in Division I of the 

State Finance and Procurement Article. Title 7 deals with 

appropriations, and Subtitle 2 of Title 7 deals with the disbursement 

and expenditure of appropriated funds. Under those provisions, 

“[m]oney may be disbursed from the State Treasury only in 

accordance with the current appropriation for a program as 

amended from time to time in accordance with [Title 7].” SFP § 7-

205. While “[t]he initial appropriation for a program is set forth in 

the appropriation act[,] . . . the appropriation for a program may be 

increased or reduced as provided in [Title 7, Subtitle 2].” SFP § 7-

206. 

As is especially relevant here, there are two statutes that 

authorize the Governor to amend appropriations for executive 

branch programs after the enactment of the budget bill. First, under 

SFP § 7-209, the Governor may amend an appropriation for a 

program of the Office of the Governor or, on the request of an 

officer or unit of the Executive Branch, approve an amendment of 

an appropriation for a program of that officer or unit. This 

authority is subject to certain limitations. Most significantly, an 

amendment of an appropriation generally may not increase the sum 

of appropriations from the General Fund for all programs of the 

officer or unit. SFP § 7-209(c)(1).5

 

Second, the Governor also may amend an appropriation 

pursuant to SFP § 7-213, commonly known as the “budget 

reduction statute,” which allows the Governor, “with the approval 

of the Board of Public Works, [to] reduce, by not more than 25%, 

any appropriation: (i) that the Governor considers unnecessary; or 

(ii) that is subject to budgetary reductions required under the 

budget bill as approved by the General Assembly.” This authority 

 5 The exception to this rule is that an amendment may increase the 

sum of appropriations from the General Fund for all programs of the 

officer or unit if money from the Board’s Contingent Fund is transferred 

to the program. SFP § 7-209(c)(2).
Gen. 38] 43

to reduce appropriations is subject to a number of exclusions. The 

Governor may not reduce an appropriation for the legislative or 

judicial branches, for the payment of the principal of or interest on 

State debt, for the public schools, the Maryland School for the Deaf 

or the Maryland School for the Blind, for the salary of public 

officers during their term of office or, except as provided in § 8-

109 of the State Personnel & Pensions Article, for the salary of a 

non-temporary employee in the State Personnel Management 

System. SFP § 7-213(b).6

 Many of these exclusions mirror the 

provisions in Article III, § 52 that preclude the Governor from 

revising certain spending estimates in the proposed budget. See

Md. Const., Art. III, § 52(11), (12). 

These statutory powers date back to the 1939 Budget and 

Procurement Act7 and had earlier been enacted as part of the 

biennial budget bills.8

 See Judy, 331 Md. at 251-52; Wilner, The 

Maryland Board of Public Works, supra, at 84-85. The first budget 

bill after the ratification of § 52, enacted at the 1918 session, 

provided that the “schedules” for each appropriation are to 

“represent the initial plan of distribution and apportionment of the 

appropriations to which they, respectively, refer,” but that “such 

Schedule may be amended” as provided therein. 1918 Md. Laws, 

ch. 206, § 3. This “concept of the budget bill being an ‘initial plan 

of disbursement’ has been an element of the executive budget 

system since its enactment.” Judy, 331 Md. at 252-53.

During the Great Depression, so that the State could better 

respond to the effects of the Depression on the State’s finances, 

additional budget administration provisions, originally intended as 

emergency measures, were incorporated into the budget bills. 

Wilner, The Maryland Board of Public Works, supra, at 84; 65 

Opinions of the Attorney General 45, 46-48 (1980). The budget 

bills enacted during the legislative sessions of 1933 and 1935 

authorized the Board of Public Works to “supervise the expenditure 

 6 In interpreting the exclusion for an appropriation for the salary of a 

non-temporary employee in the State Personnel Management System, 

we have said that it does not preclude the elimination of funding for 

positions but merely preserves the procedures in § 8-109 of the State 

Personnel & Pensions Article for categorical decreases in rates of pay. 

76 Opinions of the Attorney General 330, 337 n.9 (1991); 75 Opinions 

of the Attorney General 366, 369 n.5 (1990). 

7

 1939 Md. Laws, ch. 64. 

8 Until 1949, the General Assembly met every other year and would 

enact a budget bill covering the next two fiscal years. 
44 [106 Op. Att’y

of all appropriations . . . in [the] budget” and provided that “for that 

purpose the said Board shall have the power to reduce or eliminate 

any appropriation which it may deem unnecessary,” except 

appropriations for debt service or for the legislative or judicial 

branches. 1933 Md. Laws, ch. 597, § 11; 1935 Md. Laws, ch. 92, 

§ 11. Similar authority was not included in the budget bill passed 

at the 1937 session, but the Budget and Procurement Act of 1939, 

which codified many of the budget administration provisions 

previously enacted in each budget bill, reinstituted the power to 

reduce appropriations, though it vested that authority in the 

Governor rather than the Board. 

The 1939 Act was originally codified as Article 15A. Section 

9 of former Article 15A is the direct predecessor to the current 

budget reduction statute, SFP § 7-213, and like the current statute 

it authorized the Governor, with the approval of the Board, to 

reduce by not more than 25% any item of appropriation that the 

Governor deemed unnecessary, except appropriations for certain 

purposes identified therein. 1939 Md. Laws, ch. 64. “The General 

Assembly [was] well aware of the problem in the 1930[s] and the 

possibility of its recurrence, [and it] enacted [the budget reduction 

statute] in 1939 in order to forestall the accumulation of deficits in 

subsequent fiscal years.” Judy, 331 Md. at 259. The purpose of 

that statute “is to enable the State to accommodate an unexpected 

decrease in anticipated State revenues and, notwithstanding the 

vagaries of the economy, to maintain a balanced budget, one of the 

principal goals of the framers of the Budget Amendment.” 65 

Opinions of the Attorney General at 48.9

 

While this Office has, on occasion, described the reduction 

statute as delegating to the Governor the General Assembly’s 

authority to “strike or reduce” items of appropriation in the budget, 

the Court of Appeals has observed that “it is not particularly useful 

to characterize” the statute as effecting a delegation of legislative 

authority, given that Article III, § 52 “greatly expanded the 

gubernatorial role” with respect to the State budget. Judy, 331 Md. 

at 262 n.18. As the Court of Appeals put it, “[t]he authority given 

to the Governor in § 7-213 corresponds to the power vested in the 

Governor by Art. III, § 52,” and § 7-213 “merely allows the 

Governor to accomplish at the end of the budget process what he is 

required to do when he submits his initial budget.” Id. at 259-60. 

Indeed, the Court held that § 7-213 was a constitutional exercise of 

 9 For further discussion of the history of the budget reduction statute 

and the major State budgetary actions prompted by the economic 

depression of the 1930s, see 65 Opinions of the Attorney General at 46- 48; Wilner, The Maryland Board of Public Works, supra, at 84-87. 
Gen. 38] 45

the General Assembly’s power to enact laws “not inconsistent 

with” Article III, § 52, in part because the statute was consistent 

with the preeminent role given to the Governor over the budget 

under the Maryland Constitution. More specifically, the Court 

explained:

the statute recognizes and perpetuates the 

preeminent role of the Governor in the budget 

process, a role considered by the Goodnow 

Commission to be “fundamental . . . for a 

sound budget system.” Furthermore, because 

§ 7-213 furthers the requirement of 

maintaining a balanced budget throughout the 

fiscal year, it is precisely the type of 

legislation which the framers of Art. III, § 52, 

contemplated.

Id. (citations omitted).

It is evident from the plain language of § 7-213, as well as the

cases and our opinions interpreting the statute, that the authority to 

make reductions to appropriations is vested exclusively in the 

Governor, subject to the limitations set out in statute, including the 

limitation that the Governor may reduce an appropriation only after 

securing the Board’s approval. Under the budget reduction statute, 

“the Governor, and only the Governor, can reduce appropriations 

in the budget up to 25% after the budget has been enacted.” 

Workers’ Comp. Comm’n v. Driver, 336 Md. 105, 119 (1994). As 

our Office has long explained, therefore, the Board “may not 

substitute its own reductions for those of the Governor,” Letter 

from J. Joseph Curran, Jr., Attorney General, to William S. 

Ratchford, II, Director, Dep’t of Fiscal Services, at 3 (Oct. 3, 1991) 

(“Curran Letter”), though the Board may decline to approve one or 

more of the Governor’s proposed reductions or may seek to 

persuade the Governor to change the proposal. 

C. The Board of Public Works

The Board of Public Works, which consists of the Governor, 

Comptroller, and Treasurer, is established by Article XII of the 

Maryland Constitution. Although established by the Constitution, 

the powers and duties specifically vested in the Board by the 

Constitution are quite narrow and “are now largely obsolete.” 

Building Materials Corp. of Am. v. Board of Educ. of Baltimore 

County, 428 Md. 572, 578 n.4 (2012). Apart from the Board’s 
46 [106 Op. Att’y

limited duties relating to certain canal and railroad companies, it 

exercises only those powers that are conferred on it by the General 

Assembly. See Md. Const., Art XII, § 1 (providing for the creation 

of the Board to “hear and determine such matters as affect the 

Public Works of the State, and as the General Assembly may confer 

upon them the power to decide”); 76 Opinions of the Attorney 

General 46, 49 (1991) (“Except for imposing some anachronistic 

duties relating to canal and railroad companies, the constitutional 

provisions relating to the Board of Public Works simply defer to 

the General Assembly’s power to legislate. . . .”); 62 Opinions of 

the Attorney General 716, 725-27 (1977) (concluding that the 

Board’s powers with respect to the “Public Works of the State” are 

“circumscribed by the Legislature”); see also Truitt v. Board of 

Public Works, 243 Md. 375, 388 (1966) (holding that the Board, in 

executing administrative functions, is subject to “the operation of 

the legal principles applicable to administrative agencies”).

II

Analysis

A. Reconsideration of the Board’s Approval

You have first asked for guidance regarding the Board’s 

authority to reconsider a prior vote to approve the reduction of an 

appropriation pursuant to SFP § 7-213. We have answered this 

question before, though not in the form of an official opinion of the 

Attorney General. In a 1991 letter of advice, Attorney General 

Curran expressed the view that the Board was free to reconsider 

and rescind its approval up until the time the reduction takes effect. 

Curran Letter at 3. On that occasion, the Board had approved, the 

day earlier, the Governor’s plan to reduce a number of 

appropriations for Fiscal Year 1992, with the reductions to be 

implemented by way of a master budget amendment under SFP 

§ 7-209. In concluding that the Board could reconsider its approval 

of the reductions, the Attorney General explained:

Under accepted principles of parliamentary 

law, a public body may reconsider an action 

until that action has gone into effect or the 

matter is beyond the control of the body. In 

the absence of a rule adopted by the body, 

there is no time limit on a motion to 

reconsider. The general principle is that “all 

deliberative bodies have a right . . . to 

reconsider their proceedings as they deem 
Gen. 38] 47

proper, and it is the final result only which is 

to be regarded as the thing done.” 

Because the Governor’s reduction plan 

contemplates that it will be implemented by 

the processing of a master administrative 

budget amendment under § 7-209 of the State 

Finance and Procurement Article, it is our 

view that the Board’s action will not have 

gone into effect until it is implemented as 

proposed, when the Governor’s master budget 

amendment takes effect. Thus, until that time, 

the Board could reconsider its decision. 

However, once the budget amendment has 

become effective, the appropriation schedules 

will have been revised in accordance with the 

Board’s approval of the Governor’s decision 

and the time for reconsideration will have 

passed.

After the time for reconsideration has passed, 

the Board may not act to restore any of the 

appropriations that were reduced. Unlike the 

General Assembly, the Board has no plenary 

authority to revisit past decisions. It has only 

the authority given it by statute, and neither 

§ 7-213 nor any other statute authorizes it to 

restore an appropriation once it has been 

reduced.

Curran Letter at 3 (alterations in original) (footnotes and citations 

omitted).

We agree with that basic premise, i.e., that the Board may 

reconsider its approval of a reduction under § 7-213 up until the 

time the reduction takes effect. When the Board votes on the 

Governor’s proposed reduction, its actions are quasi-legislative in 

nature. Judy, 331 Md. at 266. A body acting in a legislative or 

quasi-legislative capacity, in turn, generally possesses the inherent 

power to reconsider and rescind its actions until the relevant action 

has been completed or the matter is otherwise beyond the control 

of the body, provided that vested rights of third parties are not 

violated and rescission is consistent with applicable law and the 

rules governing the body. See Dal Maso v. Board of County 

Comm’rs of Prince George’s County, 182 Md. 200, 206-07 (1943) 
48 [106 Op. Att’y

(explaining that “boards and agencies to which legislative power 

has been delegated . . . may undo, consider and reconsider their 

action upon measures before them,” at least “before the rights of 

third parties have vested” and “in the absence of statute or a rule to 

the contrary”); see also State v. Womack, 29 P. 939, 942 (Wash. 

1892) (“[T]he general rule is that a legislative or deliberative body 

of any kind has power to reconsider any of its actions. When not 

regulated by statute, the body has a right to adopt its own rules as 

to the time when reconsideration can be moved.”); 4 McQuillin 

Mun. Corp. § 13:75 (3d ed.) (“[T]he legislative body of [a 

municipal] corporation, or any of its boards or departments, 

possesses the unquestioned power to rescind prior acts[] and votes 

at any subsequent time until the act or vote is complete, provided 

vested rights are not violated, and that such rescission is in 

conformity to the law applicable and the rules and regulations 

adopted for the government of the body.”); Mason’s Manual of 

Legislative Procedure § 451 (2010) (explaining that, although a 

legislative body generally may reconsider its actions, “[a]n action 

cannot be reconsidered when, for any reason, it is not possible to 

cancel, nullify, or void the action previously taken”).10

Applying those general principles here, neither § 7-213 nor 

any other statute prohibits the Board from reconsidering its vote to 

approve a reduction. It is also our understanding that the Board has 

not adopted any formal procedures that would prohibit it from 

reconsidering its vote. As such, the Board may exercise its usual 

procedures for reconsideration, so long as the reduction has not yet 

been carried out and the matter remains within the Board’s control. 

Once the reduction has gone into effect, however, the Board 

cannot undo the reduction. When the Governor reduces an 

appropriation with the approval of the Board under § 7-213, the 

 10 Conversely, when an administrative body acts in a quasi-judicial 

capacity and “is not otherwise constrained,” it generally “may reconsider 

an action previously taken and come to a different conclusion upon a 

showing that the original action was the product of fraud, surprise, 

mistake, or inadvertence, or that some new or different factual situation 

exists that justifies the different conclusion,” but not upon a “mere 

change of mind.” Calvert County Planning Comm’n v. Howlin Realty 

Mgmt., Inc., 364 Md. 301, 325 (2001). That standard might also apply 

to quasi-legislative actions when the standard is made applicable by law. 

See Kay Const. Co. v. County Council for Montgomery County, 227 Md. 

479, 484, 486 (1962) (involving a zoning ordinance that allowed for 

reconsideration of certain quasi-legislative actions when “good cause 

[was] shown” and analogizing to the rule for reconsideration of quasi- judicial decisions).
Gen. 38] 49

effect of the action is to extinguish the legal authorization to 

withdraw those funds from the Treasury. See Judy, 331 Md. at 259-

60, 264-66; see also 76 Opinions of the Attorney General 330, 337- 39 (1991) (explaining that “when the funding for a position is 

eliminated under the direct or delegated authority of Article III, 

§ 52 of the Constitution, the action is a legislative act with the force 

of law” and that following the budget reduction “no appropriation 

would exist” for the position); cf. 21 Opinions of the Attorney 

General 218, 219 (1936) (concluding, at a time when the Board 

had primary authority over budget reductions, that when an 

appropriation is reduced the amount of the reduction “reverts to the 

General Treasury of the State”). At that point, the relevant action 

has been completed, and there is no longer anything for the Board 

to reconsider, as neither § 7-213 nor any other statute authorizes 

the Board to restore an appropriation.11 In other words, any attempt 

by the Board to rescind its approval after the reduction has gone 

into effect would be a legal nullity.12

The next question, then, is when a reduction, as approved by 

the Board, goes into effect. The usual practice has apparently been 

to implement budget reductions as budget amendments under SFP 

§ 7-209. As to when such a budget amendment takes effect— thereby implementing the reduction and precluding any 

reconsideration—Attorney General Curran advised in a footnote to 

his 1991 letter that a budget amendment goes into effect on the 

effective date stated in the amendment or, if the amendment is 

silent about an effective date, when the Governor signs it. Curran 

 11 We need not decide when, in other contexts, an action is sufficiently 

complete or beyond the control of a quasi-legislative body such that it 

can no longer be reconsidered. That may vary from context to context. 

12 As was the case in 1991, we are not called upon to address whether 

a statutory scheme that authorized the Board to restore an appropriation 

would be constitutional, because there is nothing in the statute that 

provides for such a restoration. Nonetheless, we think it worthwhile to 

offer a few observations. When the Governor reduces an appropriation 

with the approval of the Board under § 7-213, the legal authorization to 

withdraw those funds from the Treasury is eliminated. Judy, 331 Md. at 

259-60. To the extent the act of restoring a previously reduced 

appropriation would amount to a new appropriation, that action would 

have to comply with the constitutional provisions governing the 

withdrawal of money from the Treasury, namely Article III, § 32, which 

prohibits the withdrawal of money from the Treasury except “in 

accordance with an appropriation by Law,” and Article III, § 52, which 

provides that any law appropriating money from the Treasury “shall be 

either a Budget Bill, or a Supplementary Appropriation Bill.” 
50 [106 Op. Att’y

Letter at 3 n.1. On this particular point, however, we reach a 

different conclusion. Section 7-209(g) expressly states that “[a]n 

amended appropriation for a program is effective when the 

Governor sends notice of the amended appropriation to the 

Comptroller.” Thus, by the terms of the statute, a reduction 

implemented by budget amendment under § 7-209 takes effect 

when the Governor sends notice to the Comptroller, and it is our 

opinion that the Governor cannot provide otherwise by specifying 

a different effective date.

That said, § 7-209(g) is controlling on the question of when a 

reduction takes effect only if the reduction is processed as a budget 

amendment under that section. Although that is the usual practice, 

it does not appear that any provision of State law requires that a 

budget reduction approved under § 7-213 be implemented through 

a budget amendment under § 7-209 or that the procedures of § 7- 209 be followed in implementing budget reductions, which are 

governed by a separate statutory provision. 

If a budget reduction were to be processed in a different way, 

without reference to the budget amendment procedures in § 7-209, 

then the rule setting the effective date for budget amendments in 

§ 7-209(g) would not apply.13 In that event, consistent with what 

Attorney General Curran suggested in his 1991 advice letter, the 

reduction would likely go into effect on the effective date stated in 

the document implementing the reduction or, if the document does 

not specify an effective date, then on the date when the Governor 

signs the document. See Curran Letter at 3 n.1; cf. Lapeyre v. 

United States, 84 U.S. (17 Wall.) 191, 198-99 (1872) (plurality) 

(holding, based on historical practice, that a presidential 

proclamation took effect on the date that the President signed the 

proclamation and filed it with the Secretary of State); City of 

Atlanta v. Mays, 801 S.E.2d 1, 5 (Ga. 2017) (articulating a default 

rule that “a municipal ordinance becomes effective when it is 

signed and filed by the Mayor unless there is a constitutional or 

 13 Although you did not ask, and we do not decide, exactly what an 

alternative process for implementing a reduction approved under § 7-213 

might look like, we suspect that the Governor would have a fair amount 

of discretion in how such a reduction might be implemented, though it 

would presumably need to involve some form of notice to the 

Comptroller, as the officer responsible for issuing warrants for payment 

and charging them to appropriations. See SFP §§ 7-216, 7-220. Of 

course, if the Governor’s overall reduction plan also involves moving 

funds between programs as contemplated by a budget amendment under 

§ 7-209 in addition to budget reductions, that aspect of the plan at least 

would have to be processed as a budget amendment under § 7-209. 
Gen. 38] 51

general statutory provision governing the matter”); 5 McQuillin 

Mun. Corp. § 15:37 (3d ed.) (“The common rule in regard to 

legislation is that it shall take immediate effect unless otherwise 

provided.”); Letter from Richard E. Israel, Assistant Attorney 

General, to Sen. Richard F. Colburn (July 31, 1997) (concluding 

that common-law rule in Maryland under the Constitution of 1776 

was that statutes took effect from the date of passage unless 

otherwise specified).

B. Conditional Approval of Reduction

Your second question is whether the Board can condition its 

approval of the Governor’s decision to reduce an appropriation 

such that “the fulfillment of specified conditions” would 

automatically rescind the Board’s approval or require that the 

Board reconsider the reduction(s). Although you do not explain in 

the request what “specified conditions” the Board might have in 

mind, it is our understanding that the specified conditions would 

likely relate to new factual information reflecting the fiscal health 

of the State, such as actual revenue taken in by the State, the 

amount of the next revenue estimates issued by the Board of 

Revenue Estimates, or the projected budget shortfall based on those 

revenue estimates.14 

In answering this question, the first issue that must be 

resolved is whether the Board has any power to place conditions on 

its approval at all. If the Board has the power to impose conditions 

under at least some circumstances, the next step of the analysis is 

to identify what limitations there are on the Board’s power. The 

final step is to determine whether the Board can condition its 

approval to provide for automatic rescission or to require that the 

Board reconsider the reduction(s).

As to whether the Board can condition its approval, that is 

primarily a question of legislative intent. See Board of Liquor 

License Comm’rs for Baltimore City v. Hollywood Prods., Inc., 344 

Md. 2, 10-11 (1996). The “primary source of legislative intent is, 

 14 The Board of Revenue Estimates consists of the Comptroller, the 

Treasurer, and the Secretary of Budget and Management. SFP § 6-102. 

It submits to the Governor and General Assembly each December, 

March, and September a report that contains an itemized statement of 

estimated State revenues. SFP § 6-106. For the purpose of preparing 

those reports, the Board studies the revenue estimates prepared by the 

Bureau of Revenue Estimates in collaboration with the Consensus 

Revenue Monitoring and Forecasting Group. SFP §§ 6-104 to 6-106. 
52 [106 Op. Att’y

of course, the language of the statute itself.” Tucker v. Fireman’s 

Fund Ins. Co., 308 Md. 69, 73 (1986). Here, there is also the 

further consideration of whether the statute, if read to permit the 

Board to impose conditions, would be “inconsistent with” Article 

III, § 52, and thus invalid under that constitutional provision. See 

Judy, 331 Md. at 259-60.

Starting with the language of the statute, the text of SFP § 7-

213 is silent on this point. It neither expressly authorizes the Board 

to approve a reduction with conditions nor expressly prohibits the 

Board from doing so. We must thus determine whether the power 

to impose conditions—including the specific type of condition 

about which you ask—is implicit in the statutory scheme.

Although the Board in this context has only the powers and 

duties granted to it by the Legislature, 76 Opinions of the Attorney 

General at 49, the general rule in Maryland is that an agency, in 

addition to having the powers expressly granted by statute, has all 

of the powers that are necessary to, fairly implied by, or incident to 

the exercise of its express powers and duties. See, e.g., River Walk 

Apartments, LLC v. Twigg, 396 Md. 527, 543 (2007); Department 

of Econ. & Emp’t Dev. v. Lilley, 106 Md. App. 744, 760 (1995); 73 

C.J.S. Public Admin. Law & Proc. § 150. That is, an agency 

generally has “reasonable discretion to carry out ‘fairly implied’ 

powers incident to those duties or authority expressly granted.” 

Town of La Plata v. Faison-Rosewick LLC, 434 Md. 496, 523 

(2013).15 An agency may not, however, exercise any power which 

is “inconsistent or out of harmony with” the statute being 

 15 Although some of our prior opinions state that implied powers must 

be “necessary” to carry out the agency’s express powers and duties, see, 

e.g., 76 Opinions of the Attorney General 137, 137-38 (1991), it does not 

appear that strict necessity is required. Rather, the Court of Appeals 

seems to use the terms “necessary,” “fairly implied,” and “incident to” 

interchangeably when evaluating an agency’s implied powers. See 

Twigg, 396 Md. at 543; Faison-Rosewick, 434 Md. at 523. Thus, the 

term “necessary” apparently refers to something like reasonable

necessity. See Faison-Rosewick, 434 Md. at 523-24 (finding that an 

officer had the implied power to exercise “reasonable means” to carry 

out an express duty); Lilley, 106 Md. App. at 760 (“An expressed 

legislative grant of power or authority to an administrative agency 

includes the grant of power to do all that is reasonably necessary to 

execute that power or authority.” (internal quotation marks omitted)); cf.

64 Opinions of the Attorney General 229, 231 (1979) (explaining in the 

context of a delegation from an agency head to a subordinate that “a 

delegation of authority includes not only express powers, but also those 

necessarily implied and reasonably necessary to effectuate the express 

powers granted to a delegatee”).
Gen. 38] 53

administered. Insurance Comm’r v. Bankers Indep. Ins. Co., 326 

Md. 617, 624 (1992). 

Under that standard, the extent of an agency’s implied powers 

can sometimes depend on the breadth of the express powers 

provided to that agency. See Thanner Enters. v. Baltimore County, 

414 Md. 265, 279 (2010). When the General Assembly has 

delegated broad express authority to an agency in an area, for 

example, courts will typically construe the scope of the agency’s 

implied powers in that area broadly as well. See, e.g., Lussier v. 

Maryland Racing Comm’n, 343 Md. 681, 688 (1996); Christ ex rel. 

Christ v. Maryland Dep’t of Nat. Res., 335 Md. 427, 440 (1994); 

McCullough v. Wittner, 314 Md. 602, 610-12 (1989). By contrast, 

when an agency has been delegated only narrow authority by the 

Legislature, the agency’s implied powers may be narrower. See, 

e.g., 62 Opinions of the Attorney General at 724-28 (concluding 

that the Board of Public Works did not have the implied power to 

require an agency to negotiate with a particular firm, because the 

statute “committed to the [agency]” the responsibility to conduct 

the selection process and limited the Board’s role to merely 

approving or disapproving the agency’s proposed firm). And at the 

far end of the spectrum, when the Legislature has decided to 

“closely control by statute even the more detailed aspects” of the 

agency’s authority, that sort of “comprehensive statutory scheme” 

suggests that the agency’s implied authority is “more 

circumscribed than the typical administrative body.” Hollywood 

Prods., 344 Md. at 13 (involving a local liquor board). 

The touchstone for determining whether an agency has the 

implied authority to take a particular action is ultimately “the 

General Assembly’s intent in empowering an agency and the 

statutory scheme under which the agency acts.” Thanner Enters., 414 Md. at 279 (quoting Hollywood Prods., 344 Md. at 11); see 

also Lussier, 343 Md. at 686 (“[I]n determining whether a state 

administrative agency is authorized to act in a particular manner, 

the statutes, legislative background and policies pertinent to that 

agency are controlling.”). 

The basic question here, then, is whether the power to place 

conditions on its approval is “fairly implied” from the Board’s 

power to approve or disapprove a reduction to the budget proposed 

by the Governor under SFP § 7-213. To answer that question, we 

look first to the general rules governing the power of administrative 

agencies to impose conditions and second to how those general 

rules might apply to the more specific context at hand. 
54 [106 Op. Att’y

As a general rule, the federal courts and courts in other states 

have often held that “[t]he power to approve implies the power to 

disapprove and the power to disapprove necessarily includes the 

lesser power to condition an approval.” Southern Pac. Co. v. 

Olympian Dredging Co., 260 U.S. 205, 208 (1922) (concluding 

that the Secretary of War had the power to impose a condition on 

his approval to construct a bridge over the waters of the United 

States in light of his power to disapprove construction of the bridge 

entirely); see also Mello v. License Comm’n of Revere, 759 N.E.2d 

1201, 1203 (Mass. 2001); State v. Crown Zellerbach Corp., 602 

P.2d 1172, 1175 (Wash. 1979) (en banc); Turf Paradise, Inc. v. 

Arizona Racing Comm’n, 772 P.2d 595, 598 (Ariz. Ct. App. 1989); 

N.C. Op. Att’y Gen., 2003 WL 1154487, at *4 (Feb. 18, 2003). 

Although the Maryland courts have not yet articulated that 

rule in precisely that way, they have recognized the same general 

principle, or at least a similar principle, in various contexts. See, 

e.g., In re Diener, 268 Md. 659, 683 (1973) (concluding that the 

grant of the “greater power” to the Commission on Judicial 

Disabilities under the Constitution to recommend that a judge be 

removed “impliedly includes the lesser” power to recommend that 

a judge be sanctioned); County Council of Montgomery County v.

Lee, 219 Md. 209, 215 (1959) (concluding that “the right to grant 

or withhold permission for the paving of Galena Road . . . carries 

with it the right to prescribe reasonable terms and conditions upon 

which the permit would issue”); Blaker v. State Bd. of Chiropractic 

Examiners, 123 Md. App. 243, 264-65 (1998) (concluding that the 

power of the Board of Chiropractic Examiners to place a licensee 

on probation, which was expressly conferred on the Board, 

necessarily included the implicit authority to place terms and 

conditions on probation, since without that authority the Board 

could not monitor licensees and protect the public from harm). 

A variation on that general principle has been applied by the 

Court of Appeals (and by our Office) in defining the scope of the 

General Assembly’s constitutional powers to “strike out or reduce” 

items in the budget bill. More specifically, both the Court of 

Appeals and our Office have long reasoned that the General 

Assembly’s power to “strike out or reduce” items of appropriation 

includes the lesser power “to condition or limit the use of money 

appropriated, or the use of the facility for which the money is 

appropriated.” Bayne v. Secretary of State, 283 Md. 560, 574 

(1978); see also Kopp v. Schrader, 459 Md. 494, 509 (2018); 37 

Opinions of the Attorney General 139, 141-42 (1952). Thus, in 

acting on the budget bill, the General Assembly may approve a 

proposed item of appropriation by enacting the bill without 
Gen. 38] 55

amendment, it may disapprove a proposed item in whole or in part 

by exercising its express power to “strike out or reduce,” or it may 

exercise its lesser power to approve a proposed item subject to 

limitations or conditions, with the caveat that the power to 

condition appropriations is constrained to some degree by the 

purpose of Article III, § 52 and the design of the constitutional 

budget process.16 See also 101 Opinions of the Attorney General 

35, 55 (2016) (recognizing that, as to local governments too, 

“[n]ormally, the authority to appropriate funds—and to reduce or 

eliminate an appropriation—includes an implicit authority to set 

conditions”). 

More to the point, we have also found that similar principles 

apply to the Board of Public Works itself, concluding in a series of 

opinions that the Board had implied authority under various 

statutory schemes to impose conditions or other requirements in 

light of its express authority to approve or disapprove actions 

pursuant to those statutes. See 64 Opinions of the Attorney General

118, 121-23 (1979) (concluding that the Board of Public Works, 

given its broad powers over the school construction program, “may 

condition the acceptance of funds [by local jurisdictions] under the 

[program] in any manner that it considers necessary to assure the 

proper operation of the program and the prudent expenditure of 

State funds”); 62 Opinions of the Attorney General 743, 747 (1977) 

(concluding that, because the Board of Public Works had the power 

“to discharge a portion of the indebtedness of . . . community 

colleges” under a statute allowing it to settle obligations owed to 

the State, the Board “was also empowered to condition its decision 

in any manner reasonably designed to further the public interest” 

behind the statute); 61 Opinions of the Attorney General 491, 492, 

494 (1976) (concluding that a statute that allowed the University of 

 16 To be valid, a condition or limitation (1) must be “directly related 

to the expenditure of the sum appropriated,” (2) may not “in essence, 

amend either substantive legislation or administrative rules adopted 

pursuant to legislative mandate,” and (3) may be “effective only during 

the fiscal year for which the appropriation is made.” Bayne, 283 Md. at 

574; see also Schrader, 459 Md. at 509. This prohibition on “legislating 

in the budget,” though not expressly articulated in the Constitution, is 

grounded in the limited function of the budget bill, which is to 

appropriate money, not to legislate generally, the General Assembly’s 

limited power to strike out or reduce items of appropriation, and the fact 

that the budget bill, unlike substantive legislation, is not subject to veto 

by the Governor. Schrader, 459 Md. at 507, 509-10. 
56 [106 Op. Att’y

Maryland to expend certain surplus revenues “only if and as it 

secures the written approval of the Board of Public Works” 

authorized the Board to impose certain “requirement[s]” over the 

expenditure of those revenues).

The general principle on which those court decisions and 

opinions of the Attorney General rely, however, is not absolute. 

See, e.g., Board of Liquor License Comm’rs for Baltimore City v. 

Fells Point Cafe, Inc., 344 Md. 120, 135-37 (1996) (concluding 

that the liquor board’s power to grant or transfer a liquor license 

did not include the power to impose restrictions on the license, 

because liquor boards do not have broad implied powers under the 

comprehensive legislative scheme governing such boards).17 The 

touchstone, as with all questions about the scope of an agency’s 

implied powers under a statute, remains “the General Assembly’s 

intent in empowering an agency and the statutory scheme under 

which the agency acts.” Thanner Enters., 414 Md. at 279. That is, 

we are guided by the “fundamental premise” that “the actions of an 

administrative agency must be consistent with the statute that 

grants it the authority to act.” 70 Opinions of the Attorney General

135, 135 (1985). 

The power of an agency to disapprove thus may imply the 

“lesser” power to approve with conditions, at least as a general rule, 

but only if the grant of such an implied power to the agency would 

be consistent with the purpose of the statute, with the structure of 

the broader statutory scheme, and with the agency’s role under the 

statute. In particular, the breadth of the agency’s express authority 

remains an important factor in determining the General Assembly’s 

intent as to the scope of implied powers. See Thanner Enters., 414 

Md. at 279. And depending on the circumstances, it may also be 

less likely for an agency to have implied powers when those 

implied powers would conflict with or intrude upon express powers 

vested in another entity or official. See 96 Opinions of the Attorney 

General 36, 47-48 (2011) (reasoning that a county’s power to 

create offices does not imply power to call special election to fill 

them, in part because General Assembly has reserved the power to 

regulate elections); 62 Opinions of the Attorney General at 724-28 

(concluding that Board of Public Works lacked authority to order 

negotiations between the Transit Administration and particular 

 17 See also Michael Herz, Justice Byron White and the Argument That 

the Greater Includes the Lesser, 1994 B.Y.U. L. Rev. 227, 242, 244-47 

(1994) (pointing out that the argument that the greater power includes 

the lesser is not always logically sound, including, for example, when 

the purported “lesser” power is not, in fact, a subset of the “greater” one). 
Gen. 38] 57

bidders because the Board could not “intrud[e] into the selection 

process which the Legislature intended to be conducted” by the 

Transportation Professional Services Selection Board).18

Under the budget reduction statute that is at issue here, the 

Board’s role is a narrow one: to approve or disapprove the 

reductions proposed by the Governor. See Curran Letter at 3. It is 

the Governor, rather than the Board, who has been given the 

discretion under the statute to determine which reductions to 

propose. See SFP § 7-213 (allowing the Governor, “with the 

approval of the Board of Public Works, [to] reduce, by not more 

than 25%, any appropriation . . . that the Governor considers 

unnecessary” (emphasis added)). The Board merely acts as a 

check, albeit an important one, on the Governor’s broad discretion. 

See Judy, 331 Md. at 264 (characterizing Board approval as one of 

the “safeguards” that “circumscribe the Governor’s exercise of 

authority while allowing a necessary degree of flexibility”). The 

Board’s role in approving budget reductions, relative to the 

Governor, is thus not directly comparable to the General 

Assembly’s power to “strike out or reduce” items in the Governor’s 

budget proposal. In that context, the General Assembly may decide 

for itself which items to strike or reduce and the amount of any 

reductions, see Md. Const., Art. III, § 52(6), whereas the Board is 

limited under SFP § 7-213 to approving or disapproving the 

reductions proposed by the Governor.

The narrowness of the Board’s role under the budget 

reduction statute is perhaps further underscored by the fact that 

predecessor versions of the statute, enacted as part of the budget 

bills in 1933 and 1935, had vested the Board with the plenary 

power to “reduce or eliminate any appropriation which it may deem 

unnecessary,” rather than vesting the Governor with the primary 

responsibility for making such reductions and giving the Board a 

secondary role in approving the reductions. See Part I.B, supra

(citing 1933 Md. Laws, ch. 597, § 11; 1935 Md. Laws, ch. 92, 

§ 11). That shift may suggest a conscious choice on the 

Legislature’s part to limit the Board’s power and to maintain the 

Governor’s “preeminent role,” Judy, 331 Md. at 259, in the budget 

process, constrained only by the up-or-down approval or 

disapproval of the Board.

 18 But see Board of Physician Quality Assurance v. Banks, 354 Md. 

59, 75 (1999) (noting that, depending on the statutes at issue, “[m]ore 

than one administrative agency can have jurisdiction over a matter”).
58 [106 Op. Att’y

Under this particular statute, therefore, the Board has far more 

limited powers than was the case in our prior opinions finding that 

the Board had the implied power to impose conditions on its 

approval of certain actions. See 64 Opinions of the Attorney 

General at 121-23 (involving the Board’s “plenary and supreme” 

authority over the disposition of surplus schools); 62 Opinions of 

the Attorney General at 743 (involving the Board’s broad authority 

to settle obligations owed to the State); cf. 61 Opinions of the 

Attorney General at 492-94 (involving a statute that allowed the 

University of Maryland to expend certain funds only “if and as it 

secures the written approval of the [Board],” which implied an 

intent to give the Board at least some control (emphasis added)).

That narrower role suggests that the Board might not have the 

same implied power to impose conditions on its approval in this 

context as it has in many others. For example, we found that the 

Board’s implied powers were more narrow under a statute that 

granted the Board the narrow role of approving or rejecting the 

contractor proposed by an agency, at least in part because the 

decision about which firm to recommend to the Board was 

committed to the discretion of that other agency (the Transportation 

Professional Services Selection Board) under a statute that had 

“precisely set out” the mechanics of the scheme. See 62 Opinions 

of the Attorney General at 723-28. In our view, given the Board’s 

narrow role under the statute, it did not have the implied power, in 

rejecting a proposed firm, to direct the agency to negotiate with the 

“second most qualified” bidder, as such an act would “intrud[e]” 

into the selection process that had been committed to the agency.19 

 19 Although that opinion made clear that the scope of the Board’s 

implied powers were narrower than under some other statutes, it did not 

resolve whether the Board had the power to impose conditions on its 

approval and, if so, what kinds of conditions. In fact, the opinion noted in 

passing that the Board had previously imposed a condition on its approval 

of a contract under the statute, providing that the contract be subject to the 

approval of the federal agency that had given grant funding for the project, 

without questioning the Board’s power to impose that condition. 62 

Opinions of the Attorney General at 721. However, there was no 

discussion about the Board’s authority to impose such a condition, and the 

need for such a condition might have been implicit in the federal scheme, 

rather than the State scheme. See id. (noting that absent the approval of 

the federal entity, “there will be no federal participation in the expense of 

the [relevant part of the project], which would then have to be funded 

solely by the State”). In the interest of completeness, we also note here 

that we advised in that opinion that the Board could provide “guidance” to 

the agency for it to consider when choosing another firm after the first firm 

was rejected, even though the Board could not require the agency to 

recommend a particular firm. Id. at 728.
Gen. 38] 59

Id. The statutory scheme that we considered in that opinion is 

somewhat similar to the statutory scheme at issue here, under 

which the decision to propose certain reductions is committed to 

the discretion of the Governor and the Board’s role is limited to 

approving or disapproving the proposed reductions. 

What is more, the precedents cited above for the principle that 

the power to disapprove implies the power to impose conditions 

also seem to involve administrative schemes under which the 

agency in question had far broader regulatory or supervisory 

authority than does the Board under SFP § 7-213. See, e.g., Lee, 219 Md. at 215 (involving Montgomery County’s “full and 

complete jurisdiction over its streets and roads”); Blaker, 123 Md. 

App. at 264-65 (involving the broad authority of the Board of 

Chiropractic Examiners to license and discipline practitioners); 

accord Southern Pac. Co., 260 U.S. at 208 (involving the broad 

powers of the Secretary of War over the waters of the United 

States); Mello, 759 N.E.2d at 1203 (involving a broad licensing 

power); N.C. Op. Att’y Gen., 2003 WL 1154487, at *4 (involving 

statutory scheme that granted insurance commissioner “broad 

powers to fulfill his obligations”). Although that does not mean 

that agencies without as broad authority will never have the implied 

power to impose conditions on their approval, it does mean that the 

law is not clear as applied to the Board’s especially narrow role 

under the budget reductions statute.

If the Board had authority to impose conditions on its 

approval of the Governor’s proposed budget reductions, that might 

also raise constitutional questions, at least under some 

circumstances. As noted above, the Court of Appeals found that 

SFP § 7-213 is a valid exercise of the General Assembly’s power 

to enact “such laws not inconsistent with” Article III, § 52 as may 

be “necessary and proper” to carry out its provisions because the 

statute “recognizes and perpetuates the preeminent role of the 

Governor in the budget process” and “merely allows the Governor 

to accomplish at the end of the budget process what he is required 

to do when he submits his initial budget,” i.e., to ensure that 

expenditures do not exceed estimated revenues. Judy, 331 Md. at 

259. Assuming that the Board were to have the power to impose 

conditions on its approval, however, that might permit the Board to 

interfere with or intrude upon the Governor’s preeminent role in 

the budget process under the Constitution. That is not to say every 

condition would itself violate Article III, § 52. But it would be 

necessary to determine whether any particular proposed condition 

is “inconsistent with” Article III, § 52, thereby raising a constitutional 
60 [106 Op. Att’y

question every time a member of the Board proposed a condition. 

Because courts will typically construe ambiguous statutes to avoid 

constitutional questions, the constitutional concerns here also 

weigh in favor of an interpretation that the Legislature did not 

intend that the Board have the power to condition its approval. See, 

e.g., G. Heileman Brewing Co. v. Stroh Brewery Co., 308 Md. 746,

763 (1987) (“[I]f a legislative act is susceptible of two reasonable 

interpretations, one of which would not involve a decision as to the 

constitutionality of the act while the other would, the construction 

which avoids the determination of constitutionality is to be 

preferred.” (internal quotation marks omitted)). 

Given the narrow role that the Board plays under SFP § 7- 213, the Governor’s broad authority in the budget context, and the 

canon of constitutional avoidance, we have serious doubts that the 

General Assembly intended to grant the Board the implied 

authority to impose conditions on its approval of reductions to an 

appropriation under SFP § 7-213.20 Put another way, considering 

all of those various factors together, had the General Assembly 

intended the Board to be able to impose conditions under this 

particular statutory scheme, our sense is that the Legislature likely 

would have done so expressly, as it has done under at least some 

other statutes that confer powers on the Board. See, e.g., Md. Code 

Ann., Envir. (“EN”) § 16-202 (granting the Board the power to 

impose State wetlands licenses on “terms and conditions the Board 

 20 Historical practice also weighs against a conclusion that the Board 

may impose conditions on its approval. We are aware of only one 

instance when the Board took an action that might arguably be viewed 

as imposing a condition on its approval under § 7-213. In that instance, 

the Board approved the Governor’s proposed reductions in part but also, 

among other things, rejected some of the cuts in part and voted to 

“transfer” the money that had been restored to a particular grant program. 

See Transcript of the Board of Public Works Meeting (Sept. 30, 1992). 

That action could be viewed as a partial approval of the reductions with 

the condition that the Governor transfer certain funds to another 

program. However, the Governor ultimately agreed to the actions 

recommended by the other Board members—voting to approve them, 

see id.—so it is not clear whether they were indeed conditions on the 

Board’s approval or whether the Board simply persuaded the Governor 

to take an action that would have been within his authority. In fact, a 

prior opinion of the Attorney General suggests that the Board would not

have been able to unilaterally impose such a condition. Cf. 21 Opinions 

of the Attorney General at 218-19 (advising that, when the Board had the 

primary authority to reduce or eliminate appropriations under the 

predecessor to SFP § 7-213, the Board could not require that the amount 

saved via the reduction be devoted to a particular purpose). 
Gen. 38] 61

determines”); EN § 9-422 (allowing the Board to impose 

conditions in approving financial assistance for certain water 

supply facilities); SFP § 10-307 (allowing the Board to impose 

conditions related to the transfer of geothermal resources).21

Still, we cannot entirely dismiss the possibility that a court 

would find that the Board has some limited authority to impose 

conditions on its approval, especially in light of the general 

principle that the power to disapprove an action often includes the 

power to approve conditionally. Any authority that the Board 

might have, however, would likely be extremely narrow, in 

keeping with its limited role under the statute and to avoid 

interfering with the Governor’s constitutional role over the budget 

or conflicting with Article III, § 52. 

As a starting point, any power to impose a condition would 

have to be consistent with the general purpose of § 7-213 and the 

express powers conferred on the Board. See, e.g., Lussier, 343 Md. 

at 686 (“[I]n determining whether a state administrative agency is 

authorized to act in a particular manner, the statutes, legislative 

background and policies pertinent to that agency are controlling.”); 

Bankers, 326 Md. at 624 (holding that an agency may not exercise 

any power that is “inconsistent or out of harmony with” the statute 

being administered). Here, in light of the purpose of § 7-213 and 

the limited grant of authority to the Board under that statute, the 

Board’s power to condition, assuming it can impose conditions at 

all, would have to be narrowly construed as well.

The primary purpose of § 7-213 is to provide a vehicle for 

controlling State expenditures after the budget bill has been enacted 

so that the State can “accommodate an unexpected decrease in 

anticipated State revenues and . . . maintain a balanced budget.” 65 

Opinions of the Attorney General at 48. And the limited power 

 21 To be clear, we do not express an opinion on any other statutes that 

provide the Board with authority to approve or disapprove a particular 

agency’s decision without expressly granting the power to impose 

conditions. See, e.g., Md. Code Ann., Econ. Dev. § 10-212; Md. Code 

Ann., Nat. Res. § 5-904; Md. Code Ann., Transp. § 6-303. As we have 

said, the ultimate inquiry must be based on “the General Assembly’s 

intent in empowering an agency and the statutory scheme under which 

the agency acts,” Thanner Enters., 414 Md. at 279, which will 

necessarily depend on the specific statute at issue. We also do not mean 

to suggest that an agency needs to have explicit statutory authority to 

conform its conduct to other laws so as to ensure that it does not perform 

its powers or duties in an unlawful manner. 
62 [106 Op. Att’y

delegated to the Board under that statute is to approve (or not 

approve) the reduction of an appropriation that the Governor 

“considers unnecessary.” Assuming that the Board has the power 

to approve a reduction under § 7-213 subject to a condition, the 

condition would have to be consistent with that purpose and the 

Board’s limited role. 

Based on those principles, we can say with confidence that 

certain conditions would clearly be beyond the Board’s authority 

to impose. A condition that makes substantive policy changes, for 

example, or that has the effect of substituting the Board’s budget 

reduction plan for the Governor’s plan clearly would be 

inconsistent with the statute, which vests in the Governor the 

exclusive power to decide which appropriations to propose as 

“unnecessary.”22 Similarly, a condition that calls for the Governor 

to take other budgetary actions or to implement other cost savings 

measures would, in our view, clearly be impermissible. The Board 

also could not require that the amount saved via a budget reduction 

be rededicated to another purpose. See 21 Opinions of the Attorney 

General at 218-19 (reasoning that such a condition would be 

impermissible, even at a time when the Board had primary 

authority over budget reductions). And, of course, a condition that 

is “inconsistent with” Article III, § 52 would not be a valid exercise 

of the Board’s power under SFP § 7-213. 

Another clear limiting principle is that the Board may not 

impose a condition that, in effect, delegates to some other entity or 

person the discretionary function of approving (or not approving) 

a reduction proposed by the Governor. That approval function is 

specifically conferred on the Board by the budget reduction statute, 

and an agency may not wholly delegate discretionary powers

specifically conferred upon in it by statute without express 

authority from the General Assembly. 61 Opinions of the Attorney 

General 734, 735 (1976) (although the Board could delegate 

certain discretionary functions to its administrator—provided that 

the Board gave appropriate preliminary instruction and the actions 

were subject to subsequent Board review—it could not wholly 

delegate the duties that were specifically conferred upon it by 

statute); see also 73 Opinions of the Attorney General 295, 302 

(1988) (explaining that “administrative agencies cannot, in the 

 22 Thus, for instance, a condition that the Governor bring additional 

reductions to the Board for its approval likely would be beyond the 

Board’s power. In practice, of course, the other two members of the 

Board may be able to persuade the Governor to modify the reduction 

plan. We note, however, that a substantive modification might require 

new notice under SFP § 7-213(a)(2). 
Gen. 38] 63

absence of express legislative authorization, delegate powers or 

functions, particularly those requiring the exercise of discretion or 

judgment, to others”); 50 Opinions of the Attorney General 180, 

183 (1965) (advising that the Board of Trustees of the State 

Colleges may not delegate to its executive director “any of those 

powers and duties specifically conferred upon it by statute”). 

Having discussed some conditions that would clearly be 

beyond the Board’s authority, the more difficult question is what 

conditions might be within the Board’s authority—assuming that 

the Board has the power to impose any conditions in the first 

place—and whether that authority includes the type of condition 

about which you have asked, namely, one that provides for 

automatic rescission or reconsideration of the Board’s approval 

upon the occurrence of a specified event. For example, could the 

Board impose a condition providing for automatic rescission or 

reconsideration of its approval if the next revenue projections by 

the Board of Revenue Estimates come in above a certain threshold 

number?

Given the Board’s narrow role under the statute, our view is 

that, at the most, the Board might have the power to impose 

procedural conditions that are directly related to the narrow 

decision before the Board (i.e., the decision to approve or not 

approve the reduction or reductions proposed by the Governor), 

that are merely derivative of that narrow authority, and that do not 

concern any actions or matters unrelated to the specific reduction(s) 

under consideration. See Thanner Enters., 414 Md. at 279 

(explaining that the scope of implied powers depends on “the 

General Assembly’s intent in empowering an agency and the 

statutory scheme under which the agency acts”). 

In theory, that standard might permit the Board to impose a 

condition providing for automatic rescission of its approval if 

actual or projected State revenues are above a certain level such 

that the reductions no longer appear to be needed.23 Such a 

condition, at least arguably, is directly related to the Board’s 

narrow decision under § 7-213 and is merely derivative of the 

 23 However, as noted above, in adopting a condition based on revenue 

estimates, as opposed to actual receipts, the estimates would probably 

need to be derived using objective criteria to lessen the risk that a court 

might view the condition as an impermissible delegation of the Board’s 

discretionary power. 
64 [106 Op. Att’y

Board’s power to disapprove the proposed reductions in their 

entirety.24 After all, the availability of funds to support the 

appropriation seems directly relevant to the decision of whether or 

not to approve the reduction. Such a condition also does not 

impinge on the Governor’s authority under the statute to decide 

which reductions to propose, nor does it seem to interfere with the 

Governor’s broader control over the budget process, at least not any 

more than would a decision of the Board to disapprove the 

reductions in their entirety, an action which is unquestionably 

within the Board’s authority.25

 24 You also have asked whether the Board could impose a condition 

providing for automatic reconsideration upon the occurrence of a 

specified event. It is not entirely clear to us what the Board means by 

automatic reconsideration in this context. If the Board is contemplating 

automatic reconsideration of its own vote to approve the proposed 

reduction (with the condition that the vote will be automatically 

reconsidered upon the occurrence of some specified condition), that 

might be inherently self-contradictory; reconsideration of an earlier vote 

ordinarily nullifies the original vote, see Mason’s Manual § 468, which 

in this case would be the vote that mandated reconsideration in the first 

place. However, the Board seems more likely to be contemplating a 

condition providing that (1) the Governor may not implement the 

reduction until it can be determined if some future contingency is 

satisfied and (2) if the contingency is satisfied, the Governor can proceed 

with the reduction, but if the contingency is not satisfied, the Governor 

can proceed with the reduction only if Board takes a new vote 

authorizing the reduction. That latter type of condition would likely be 

subject to the same analysis as a condition providing for automatic 

rescission. That is, if a condition providing for automatic rescission of 

the Board’s approval on certain grounds would be permissible, then this 

type of condition would likely also be permissible. But to the extent that 

the Board is further contemplating that it would be bound to put the 

matter back on the Board agenda upon the occurrence of the future event, 

even if the Governor wishes to withdraw his proposed reduction, for 

example, that would raise additional issues. We doubt that the Board 

could preclude the Governor from withdrawing his proposal under those 

circumstances, and there might also be questions as to whether the Board 

could bind itself to take a particular action in the future. 

25 If the imposition of such a condition were to create a prolonged 

period of uncertainty as to the amount of appropriations that will 

ultimately be available to the affected agencies, the condition could 

potentially be in tension with the statutory purposes of allowing the State 

to maintain a balanced budget and to have the necessary flexibility to 

respond to unanticipated fiscal conditions, as well as with the idea of 

gubernatorial primacy in the budget process. We are assuming here that 

it would be a relatively short period of time until it can be determined 
Gen. 38] 65

It is not clear, however, what practical use such a condition 

would have unless the Board were also to impose a condition 

delaying the implementation of the reduction or the effective date 

of the approval until it can be determined whether the condition 

requiring automatic rescission has (or has not) occurred. 

Otherwise, if the reduction has already been implemented, the 

Board would not be able to rescind or reconsider its approval; the 

appropriation will already have been reduced as a matter of law, 

and it could not be added back to the budget by the Board. See Part 

II.A, supra. As to whether the Board could require that the 

approval not go into effect (or the reduction not be implemented) 

until a later date, it is at least possible that too might be the type of 

narrow, procedural condition that would not conflict with the 

statutory design. It is directly related to, and derivative of, the 

Board’s authority to approve the reduction, in that it simply 

identifies the date on which the Board’s approval shall become 

effective, after which the Governor may implement the reduction, 

and it is not tied to actions or matters unrelated to the reduction 

under consideration.26 

All of that said, the Board could achieve the same result (and 

avoid the risk that its conditions would be invalidated) simply by 

deferring its decision on the Governor’s proposed reduction or by 

declining to approve the reduction and encouraging the Governor 

to bring the matter back to the Board at a later date,27 during which 

time the Governor and other members of the Board could further 

evaluate the State’s fiscal situation and the need for making the 

reduction based on the most up-to-date information. That action 

would unquestionably be within the Board’s authority, would seem 

 

whether the condition will or will not be met. If not, that could raise an 

additional question that would need to be considered. 

26 Although there is little practical difference between a condition 

delaying the effective date of the approval and one delaying the 

implementation of the approval until a specified time, a condition that 

directly prohibits the Governor from implementing a reduction that has 

been approved might raise more questions than one that merely delays the 

effective date of the approval. That is because, while the statute grants the 

Board the power to approve or disapprove the reductions, it does not 

expressly give the Board any role in implementing the reductions once 

approved. It could be argued, therefore, that a condition directly 

prohibiting the Governor from implementing a reduction injects the Board 

into part of the process that has been left to the Governor under the statute. 

27 Nothing in statute precludes the Governor from proposing a 

reduction previously disapproved by the Board. 
66 [106 Op. Att’y

to achieve the same result as the conditions about which you asked, 

and would rest on far safer legal ground. Thus, even if there might 

be an argument that the Board could impose a condition to delay 

the effective date of its approval or provide for automatic rescission 

under certain limited circumstances, we would advise that the 

Board avoid taking such an action and, instead, defer a vote on the 

proposed reductions (or decline to approve the proposed reductions) 

when there is a need to wait for more information. 

III

Conclusion

To summarize, we conclude that the Board may reconsider 

and rescind its approval of a reduction under SFP § 7-213 up until 

the time the reduction takes effect. We have serious doubts, 

however, that the Board may condition its approval of a reduction 

under § 7-213. And even assuming the Board has the implicit 

power to place some conditions on its approval, that power would 

be extremely narrow. Although we cannot say with certainty that 

the Board lacks the power to impose a condition providing for 

automatic rescission of its approval upon the occurrence of a 

specified condition, at least if that condition were directly related 

to the narrow decision before the Board and if the reduction had 

not yet been implemented, we advise the Board against such an 

approach. The Board can achieve the same result, without the same 

legal risks, simply by deferring a vote on the reduction (or declining 

to approve the reduction) until it is satisfied that it has the 

information it needs to make a fully informed decision. 

Brian E. Frosh

Attorney General of Maryland

David W. Stamper

Assistant Attorney General

Patrick B. Hughes

Chief Counsel, Opinions and Advice