26 [81 Op. Att’y

EDUCATION

PUBLIC SCHOOLS ) CHARTER HOME RULE COUNTIES )

AUTHORITY OF COUNTY TO ADOPT SCHOOL PERFORMANCE

GRANT PROGRAM

November 15, 1996

The Honorable Eileen H. Rehrmann

County Executive of Harford County

You have requested our opinion whether Harford County may

adopt, by ordinance, a program to provide grants to individual public

schools as a reward for achieving performance standards set by a

county-appointed commission.

A county grant program raises a legal issue only to the extent

that the program is administered outside the existing statutory

framework for county financial support of a school system. Under

§5-103(c) of the Education (“ED”) Article, Maryland Code, Harford

County may provide additional funds to the board of education “to

support improved and additional programs.” This provision surely

contemplates a cooperative effort between the county and the board

to identify criteria for these additional funds. We recommend that

this cooperative approach, which is free of legal doubt, be given first

consideration.

Nevertheless, should the county wish to pursue a more

independent approach in encouraging improved school performance,

the county may do so in a limited way. In our opinion, a charter

home rule county like Harford County may establish a performance

incentive grant program if the program is a purely voluntary,

noncontractual arrangement that rewards past performance and

neither imposes future conditions on the operation of local schools

nor interferes with the discretion of State and local educational

authorities. Certain features of a proposed 1996 Harford County

ordinance do not satisfy this condition, although we believe that it is

possible to fashion valid county legislation.
Gen. 26] 27

I

Background

A. The 1996 Proposal

On April 2, 1996, Bill 96-21 was proposed by the Harford

County Administration and introduced in the County Council to

establish a “school-based performance incentive program.”

Although this measure was not enacted, we understand that you hope

to resubmit similar or modified legislation for the Council’s

consideration. 

The 1996 bill would have created the Harford County

Commission on School Board Performance Incentive Program (“the

Commission”), a county body of 13 persons, including one member

of the Harford County Board of Education. The Commission would

be authorized to establish objective performance standards for local

public schools and to provide a program of incentives to individual

schools in the county that are meeting, exceeding, or making

significant progress toward meeting these standards. The legislation

contemplated the submission of funding proposals by individual

“school improvement teams,” composed of teachers and parents, that

were obliged to demonstrate that the funds spent “will help increase

school performance,” be consistent with the school’s improvement

plan, and not be used to supplement ordinary operating costs. Had

this measure passed, it would have been funded through a $500,000

appropriation in the county’s budget ordinance.

B. Conflicting Opinions

The issue of the county’s authority to establish a school-based

performance incentive program has been the subject of three

opinions: one written by the attorney for the County Council, one by

the County Attorney’s Office, and one by the county’s bond counsel.

The Council Attorney concluded that Bill 96-21 was

preempted by State law:

The bill, in effect, establishes a

commission which will promulgate policy

regarding how schools will receive additional

monies above and beyond that which is
28 [81 Op. Att’y

provided for within the State mandated budget

scheme. In other words, Bill 96-21 appears to

create an additional category not authorized

by state legislation and not included in the

board of education’s budget.

Memorandum to Council Members from Council Attorney (May 27,

1996).

By contrast, the County Attorney opined that the legislation

was not preempted, because “the program creates no requirement or

burden on the school system [and] because the program is no more

than an additional ‘prize’ or ‘award’ for which the schools are free

to compete ) subject only to the direction of the school system

hierarchy.” Opinion of the County Attorney (May 24, 1996). The

County Attorney also concluded that grants under the program

would be “one-time money” exempt from maintenance-of-effort

requirements imposed by ED §5-202.

Finally, the law firm of Miles and Stockbridge, the county’s

bond counsel, concluded that establishment of the grant program

was within the county’s home rule powers under Article 25A, §5(S),

and was not in conflict with or impliedly preempted by any

provision of the Education Article. Memorandum to County

Executive (May 28, 1996). Specifically, this opinion noted that the

incentive program was not part of the budgetary process and that

State law did not prevent alternative sources of school funding

outside the mandatory budget process.

II

County’s Authority to Make Grants

Although the Express Powers Act for charter counties, Article

25A, §5 of the Maryland Code, makes no specific mention of a

county’s power to make a grant or a gift to public agencies or

institutions, we believe that this authority is implicit in the Act.

Specifically, §5(S) provides, in relevant part, that a charter county

is authorized:
Gen. 26] 29

1

 On the basis of this authority, a charter county presumably could

establish a similar school performance program if the grant were made, for

example, to a private, non-profit foundation, which in turn donated the

funds to a particular school under criteria developed by the foundation.

We need not consider this alternative, however, given our conclusion

about direct county grants to schools that choose to seek the grants.

[T]o pass all ordinances, resolutions or

bylaws, not inconsistent with the provisions of

this article or the laws of the State, as may be

proper in executing and enforcing any of the

powers enumerated in this section or

elsewhere in this article, as well as such

ordinances as may be deemed expedient in

maintaining the peace, good government,

health and welfare of the county.

Provided, that the powers herein granted

shall only be exercised to the extent that the

same are not provided for by public general

law....

This provision has been interpreted broadly to authorize the

expenditure of county funds to private or semi-private entities as

long as a public purpose is served. See Snowden v. Anne Arundel

County, 295 Md. 429, 435, 456 A.2d 380 (1983) (indemnification of

county police and fire department personnel); Prince George’s

County v. Chillum-Adelphi Vol. Fire Dep’t, Inc., 275 Md. 374, 381,

340 A.2d 265 (1975) (grants to volunteer fire companies).1 In our

view, this authority includes the power to make a grant for a public

purpose to a public entity, such as a public school located within the

county, to the extent that the grant is not inconsistent with or

preempted by State law. See First Nat’l Bank of Birmingham v.

Walker County Bd. of Educ., 11 So. 2d 297 (Ala. 1943); 15 Eugene

McQuillen, Municipal Corporations §39.25 (3d ed. 1995).
30 [81 Op. Att’y

2

 Our conclusion is limited to the particular proposal in question, as

construed by the County Attorney. This opinion does not address any

other potential legislative action by a county relating to education.

3

 The boundaries of the preempted field were not drawn by the

Court with precision. In 68 Opinions of the Attorney General 236, 237

(1983), Attorney General Sachs, after focusing on post-McCarthy cases,

noted that “[i]t is by no means entirely clear whether the Court ... intended

to hold that local authority had been wholly preempted in every matter

relating to education.”

III

Preemption and Conflict Issues

A. Implied Preemption and the Education Article

In McCarthy v. Board of Education, 280 Md. 634, 374 A.2d

1135 (1977), the Court of Appeals held that a charter county lacked

the power to require a board of education to provide bus

transportation for parochial school students. This holding was based

on a finding of implied preemption: State legislation in the field of

education, the Court concluded, “demonstrates the occupation of that

field by the State.” 280 Md. at 651. Therefore, a charter county

“was without power to legislate in this field and to place additional

duties upon” the board of education. Id. The force of this implied

preemption would invalidate even local legislation that is

“harmonious” with State law. Cf. De Canas v. Bica, 424 U.S. 351,

356 (1976) (describing effect of preemptive federal law). Thus,

because the proposed county incentive program relates to the field

of education, the question arises whether McCarthy precludes this

particular exercise of county power. In our view, it does not.2

The subject of the incentive program, financial aid for schools,

falls within the core of the “field” occupied by the State.3 Yet, this

determination does not end the analysis. In Opinion No. 94-019

(March 31, 1994) (unpublished) and later in court, this office

suggested that the implied preemption doctrine only limits the

authority of a local subdivision to “regulate” by legislation. 

The implied preemption doctrine safeguards the General

Assembly’s decision “to occupy a specific field of regulation ....”

Mayor and City Council of Baltimore v. Sitnick, 254 Md. 303, 323,

225 A.2d 376 (1969) (emphasis added). The doctrine prevents
Gen. 26] 31

“future local government trespass in [an] area of exclusive

legislative authority....” County Council v. Montgomery Ass’n, 274

Md. 52, 60 n. 5, 333 A.2d 596 (1975). Local “trespass” occurs if a

local government purports to create enforceable rights or obligations

within the preempted field ) in other words, attempts to regulate

within that field. See, e.g., Howard County v. Potomac Elec. Power

Co., 319 Md. 511, 573 A.2d 821 (1990) (local requirement that

utilities obtain special exception status under local ordinances for

siting of certain transmission lines). Local regulation creates a “dual

system of regulating” the field, a duality inconsistent with the

legislative goal. Montgomery Ass’n, 274 Md. at 64. Cf. English v.

General Electric Co., 496 U.S. 72, 79 (1990) (“[S]tate law is preempted where it regulates conduct in a field that Congress intended

the Federal Government to occupy exclusively.”) (emphasis added).

In its most recent implied preemption case, Allied Vending,

Inc. v. City of Bowie, 332 Md. 279, 631 A.2d 77 (1993), the Court

of Appeals again emphasized the regulatory character of the local

law. The case involved two municipal ordinances that regulated the

location of cigarette vending machines through a licensing

requirement. The Court held these local requirements to have been

preempted by State law. In describing the factors to be examined in

determining whether preemption by implication exists, the Court

asked “whether the local ordinance regulates an area ..., whether the

State law expressly provides concurrent legislative authority to local

jurisdictions or requires compliance with local ordinances, ...

whether the particular aspect of the field sought to be regulated by

the local government has been addressed by the State legislation, ...

and ... whether a two-tiered regulatory process existing if local laws

were not pre-empted would engender chaos and confusion....” 332

Md. at 299-300 (emphases added, citations omitted).

We construed this language in Allied Vending to mean that,

although a charter county could not legislate to regulate the location

of cigarette vending machines, nevertheless a county was not

precluded from passing a nonbinding resolution encouraging

businesses to remove those machines from their premises. Our

understanding of the scope of preemption was affirmed by the

Circuit Court for Howard County in Allied Vending, Inc. v. Howard

County, Case No. 94-CA-24895 (March 19, 1996) (Sweeney, J.):
32 [81 Op. Att’y

While the Council may not legislate to

regulate cigarette vending machines, ... the

Council may pass a non-binding resolution

expressing its opinion on this issue.

Resolution 48-1994 does not create liability or

create a new rule of general application, and

therefore it is not legislative in the nature of an

ordinance or law.

To be sure, the Harford County’s school performance incentive

program was proposed to be enacted legislatively as an ordinance.

The County Attorney, however, characterized the measure as a

purely voluntary plan that imposes no burden on the school board:

“The County realizes and accepts the fact that it can neither require

a school to participate in the voluntary program nor require the

Board to order a school to participate.” The proposed program,

therefore, hardly amounts to an attempt to “regulate” education. The

proposal is not preempted merely because it touches the field of

education.

We doubt that any serious legal objection would be raised if

the county’s program rewarded schools that performed well, by

county criteria, with a plaque or other form of non-monetary

recognition. The overall preemption issue is no different, however,

simply because the recognition takes the form of a monetary grant.

B. Specific Preemption or Conflict with the Education Article

Even if Harford County is permitted some nonregulatory

authority in the field of education, the question remains whether the

proposed grant program is preempted by or conflicts with specific

provisions of the Education Article. 

1. Education policy-making authority

Undoubtedly, the county board of education and the county

school superintendent make local educational policy in each

subdivision. ED §§4-107 and 4-205. Nevertheless, the County

Attorney has characterized the performance incentive program as

one conferring a prize or award on schools subject to the direction

of the board of education. Accepting this characterization of the

intent of the proposal, we believe that the program will not operate

like many grant programs, under which a recipient is contractually

bound to adhere to various conditions. See, e.g., Pennhurst State
Gen. 26] 33

School and Hospital v. Halderman, 451 U.S. 1 (1981). If the

program were one in which county educational policy standards

were imposed by contract on a school receiving county funds, we

would question its validity.

Rather than impermissibly establishing educational standards

that a school must meet in the future, the county incentive program

is more properly viewed as setting eligibility requirements for a

grant for which a school may compete on the basis of its past

performance. A school is not obliged to seek or accept a grant, and

local education authorities remain free as a matter of policy to direct

a school not to apply for or accept a grant or to accept only with the

approval of the board or superintendent. Indeed, if there were a

conflict between board-imposed performance standards and countydetermined standards for an incentive grant, a school would be

obliged to adhere to the board’s standards. As long as this nonbinding, non-contractual program does not interfere with the

discretion of local educational authorities or place conditions on a

school that receives a grant, however, it would not be preempted by

or in conflict with ED §§4-107 and 4-205.

2. State School Performance Program

At its 1996 session, the General Assembly established a

program under which the State Superintendent of Education would

annually distribute recognition awards to elementary and middle

schools that show substantial improvement toward meeting

standards of the Maryland School Performance Program. ED §5-

203.3. We do not view the creation of the State-funded and Stateadministered program as barring a county from establishing a

voluntary, non-binding grant program that also rewards school

performance, as long as the program does not infringe on the

discretion of State or local educational authorities. If the two

programs turn out to be incompatible in practice, those in charge of

the school system can simply decline to participate in the county’s

program.

3. Advisory committees

Under ED §4-111, “[e]ach county board shall establish at least

one citizen advisory committee to advise the board and to facilitate

its activities and programs in the public schools.” This provision

would bar a county from interfering with a school board’s duty to

establish an advisory committee. The commission contemplated for
34 [81 Op. Att’y

the grant program is not an “advisory committee,” however, for it

has nothing to do with advising the school board.

4. County appropriation requirements

It is rare for an enactment to raise a preemption issue when a

local government proposes to spend more than is required for a

mandated program. See Ramos v. Montgomery, 313 F. Supp. 1179

(S.D. Calif. 1970), aff’d, 400 U.S. 1003 (1971) (rejecting federal

preemption challenge to state policy of making higher welfare

payments to foster parents than birth parents).

The manner in which a county appropriates funds for the

annual budget of the local board of education, however, is controlled

entirely by State law. See 68 Opinions of the Attorney General 236,

238 (1983). The extremely complicated “maintenance of effort”

provisions in ED §5-202(b) reflect a legislative decision to preclude

independent county decision-making about the requirements for

“appropriat[ion of] local funds to the school operating budget ....”

ED §5-202(b)(3)(ii)2. See generally 76 Opinions of the Attorney

General 153 (1991). In our view, State control extends to both

mandatory appropriations to the school budget and discretionary

amounts provided pursuant to ED §5-103(c), which authorizes

county governments to “provide funds that are more than the amount

required by [maintenance of effort provisions] to support improved

and additional programs.” 

This provision, as well as others related to county funding of

a school system, may be said to reflect State preemption of a smaller

field within the field of education ) namely, fiscal relations between

a county and a board of education. ED §5-103(c), in particular,

might well preempt a county’s effort to create a parallel system of

direct funding of individual schools, outside appropriations to the

school board, linked to future “improved and additional programs”

to be supported with those funds. In other words, a county may not

condition eligibility for a grant on a school’s agreement to pursue a

particular program of instruction. If a county government, for

example, thinks that more intensive teaching of phonics would

improve reading performance, the county can seek to support its

preferred instructional program through additional funds to the

school board under ED §5-103(c). The county may not attempt to

control instructional content by means of grants to individual

schools.
Gen. 26] 35

Yet ED §5-103(c) does not, in our view, implicitly prohibit a

different county grant program, one that offers individual schools

monetary recognition for successful past performance without any

attempt to specify program content, to interfere with the school

system’s prerogative to decide on programs, or to alter any aspect of

the State-regulated budgetary process. The General Assembly itself

recognizes that particular schools might receive grants apart from the

ordinary funding process. “All property granted, conveyed, devised,

or bequeathed for the use of a particular public school ... [s]hall be

held in trust for the benefit of the school ... by the appropriate county

board ....” ED §4-113(a)(1).

As we see it, the objection to the Harford County proposal is

one grounded in policy concerns, not preemption doctrine. If the

county offers a substantial amount of extra money to schools that

meet the county’s performance standards, the school board will find

itself under intense pressure to allow schools to pursue the money.

Even if the county’s standards are complementary to those set by

school officials, the pursuit of the county’s money might in practice

result in a perceived shift of power away from the school board to

the county.

Nevertheless, we cannot transform policy concerns into a legal

veto. As long as a county performance grant program remains

within the confines discussed above, it is not preempted by or in

conflict with the budgetary provisions of the Education Article.

C. Defects in Bill 96-21

Although we conclude that a charter county may establish a

grant program along the lines you have proposed, we do find legal

defects in certain features of Bill 96-21. First, the proposal appears

to require a member of the local board of education to serve on the

Harford County Commission on School Performance. In our

opinion, a local ordinance cannot require such service by a member

of a board whose duties derive solely from State law. Second, the

bill apparently requires funding proposals to be submitted by “school

improvement teams” composed of teachers and parents, rather than

any officer of the school. Because a grant application will make

certain representations as to use of the funds by the school, and

because a school has the absolute discretion to accept or reject a

grant, any application for funding should be made expressly subject

to the approval of school authorities. Third, a school seeking a grant

must agree that use of the grant money will “help increase student
36 [81 Op. Att’y

performance and be consistent with [the] school improvement plan.”

This requirement suggests impermissible county involvement in

future programmatic content, as distinct from an assessment of past

performance.

IV

Conclusion

In summary, it is our opinion that a charter home rule county

may establish a school performance incentive grant program as long

as the program is a purely voluntary, non-contractual arrangement

that rewards past performance and neither imposes future conditions

on the operation of local schools nor interferes with the duties of

State or local education authorities.

J. Joseph Curran, Jr.

Attorney General

Jack Schwartz

Chief Counsel

Opinions and Advice

Robert A. Zarnoch

Assistant Attorney General