26 [81 O p. Att’y
EDUCAT ION
P UBLIC S CHOOLS

) C HARTER H OME R ULE C OUNTIES

) A UTHORI TY OF C OUNTY TO A DOPT S CHOOL P ERFORMANCE G RANT P ROGRAM

November 15, 1996

The Honorable Eile en H. Rehrmann Co unty E xecu tive of H arford Co unty
You have request ed our opini on whether Harfor d County may adop t, by ordinance , a pro gram to pro vide g rants to individ ual pu blic sc ho ols as a reward f

or achie ving perf

ormance standards set by a county-appointed commission.
A county grant

program rai ses a l egal i ssue only to the ext ent that t he program is admin istered outside the ex isting statutory fram ew ork fo r cou nty financi al support of a school s ystem. Under §5-103(c) of the Educ ation (“ED ”) Article, M aryland C ode, H arford Co unty ma y pro vide a ddition al fund s to the b oard of ed ucatio n “to support improved and additi onal prog ram s.” Th is prov ision su rely contemplat es a coop erative effort betw een the co unty and the board to i denti fy cri teri a for t

hese additional f

unds. We recommend that this cooperat ive approa ch, which is free o f legal d oub t, be given first consider ation.
Neve rthel es s, should the c ounty w ish to pursue a mo re independent

approa ch in encouraging improved scho ol perf ormance, the county may do so in a l imited way. In o ur o pinion, a chart er ho me rule count

y like Harf

ord County may establ ish a per formance incent ive grant pr ogram if the program is a purely voluntary, noncontrac tual arrangement t hat rewards past per formance and neithe r imposes futur e condit ions on the operat ion of local sc hoo ls nor interfere s with th e discr etion of State and localeducati onal authoriti es. Certain features o f a p ropo sed 1 996 Ha rford C oun ty ordinance do not sat isfy t his condi tion, althou gh w e belie ve tha t it is possibl e to fas hion vali d county le gisl ation.Gen. 26] 27
I

Background
A. The 1996 Proposal
On April 2, 1996, Bill 96-21 was p ropose d by the H arford Co unty A dm inistration and in trodu ced in the C oun ty Co uncil to establisha “school- based perf orman ce i nce ntiv e pr ogr am .” Although this measu re was n ot enacted, w e unde rs t and that you hope to resub mit sim ilar or m odified legisla tion f or the Co uncil’s con side ratio n. The 199 6 bill wo uld h ave c reated the H arford Co unty Comm issi on on School Board Perf ormance Incent ive Program (“the Com mission” ), a county body of 13 persons , inc luding one member of the Harford County Board of Education. The Co mm ission w ould be autho rized to establ ish obj ecti ve perfor mance standards for l ocal pub lic schools and to provi de a program of i ncenti ves to indi vidual scho ols in the c ounty tha t are meet ing, e xceeding, or making signi ficant

progress tow ard meeting these s tandards . The legi slat ion contemplat ed the submiss ion of f unding proposa ls by i ndividual “school im provement teams,” composed of tea chers and parents, tha t were obliged to demonstrat e that the funds spent “will help incr ease school perfor

mance,” be consi stent

with the school’s improvement plan, and not be used to suppl ement ordinar y operating costs. Had this me asure passe d, it wo uld have been funded thr ough a $500,000 appropri ation in the county’s budget ordinance

. B. Confli

cti ng Opinions The issue of

the county’s authorit

y to est ablis h a school- based perfor mance incent ive progr am has been the subj ect of t hree opinions: one writt en by the attorne y for th e Co unty Council, one by the Cou nty Attorne y’s Office, and one b y the c oun ty’s bo nd co unse l.
The Co uncil Attorney conc luded that Bill96-21 was pr ee mpt edby S tate law:

The bill, in effect, establishes a co mm is sionwhich will promulgate poli cy regardi ng how scho ols will r eceive addi tional monies abov e and beyo nd th at wh ich is28 [81 O p. Att’y providedfor within the St ate mandated budget scheme. In oth er w ords, B ill 96-21 appe ars to create an ad ditiona l categ ory n ot a ut horized by state legi sl atio n and not inc luded in t he boar d of e duca tion’s b udg et.
Mem orandum to Co uncil Mem bers from Council Attorney ( May 27, 1996). By contras t, t

he County Attorne y opined that the l e gisl ation was not preempted, because “the progr am creates no requir ement or burden on the schoolsystem [and] because the program is no m ore than an addi tional‘pri ze’ or ‘ award’ for which the schools are fr ee to compete

)subject

only t o the direction of t he school s ystem hierarchy.” Opinion of t he County Attorne y (May 24, 1996). The Co unty A ttor

ney also conc luded that grant s under the program wo uld be “on e-time m oney” exem pt from m aintenance -of-effort requir ements imposed by ED §5-202.
Finally, the law firm of M iles and Stock bridge, the cou nty’s bond counsel, concluded t hat est ablis hment of the gr ant program was wi t hi n the co un t y’ s h ome rule po we rs und er A rticle 25A , §5(S), and was not in conf

lict with or i mpliedly pr eempted by any provisi on of t he E duca tion A rticle. M em oran dum to Co unty Executive (Ma y 28, 199 6). Specifi call y, thi s opini on noted that the incent ive program was n ot part of the budg etary process and t hat State law did not pr event al ternative so urces of school f

unding outside the mandatory budget process.

II
Cou nty’s A uthority to M ake G rants Although the Express Powers A ct for charter counties, Article 25A , §5 of the Marylan d Co de , ma kes no sp ecific men tion of a c ounty’s power to make a grant or a gif t to publ ic agenc ies o r instit utions, we believ e that th is autho rity is im plicit in the Ac t. S pecifi call y, §5(S ) prov ides, in re levan t part, that a charte r cou nty is aut horized:Gen. 26] 29

1 On the basis of this au

thority, a charte r county presuma bly could establish a similar school performance program if the grant were made, for example, to a priva

te , non-pro fit foundation, which in turn donated the funds to a particular schoolund er criteria developed by the foundation. We need not c onsider t

his alternative , however, given our conclusion about dir ect coun ty grants to schools

that choo se to see

k the gra nts. [T]o pass al l ordi nances, resolut ions or bylaws, not inc onsiste nt w ith the provi sions of this article or the l aws of the St ate, as may be properin execu ting a nd enforci ng any of the pow ers enumerat ed in thi s sect ion or elsewh ere in thi s art icle , as wellas suc h ordinance s as m ay be deem ed ex pedie nt in maintaining the pe ac e, goo d go vern me nt, health and welfare of the count y. Provided, that t

he powers herei n granted sh all only be exer cised t o the ext ent that th e same are not provided for by public ge neral law

.... Th is p rovisi on has been int erpret ed broadly to authori ze the e xpend iture of co unty fund s to priv ate or s em i-private entit ies a s long as a pub lic pu rpo se is s erv ed. See Snowden v. Anne Arundel Co unty , 295 Md. 429, 435, 456 A.2d 380 ( 1983) (indemnif icat ion of coun ty police and fi re d epartm ent pe rsonn el); Prince G eorge’s Co unty v. Chillum-AdelphiVol. Fire Dep’t, I nc. , 275 Md. 374, 381, 340 A.2d 265 (1975) (grant s to volunteer fire co mp anies). 1 In our vi ew, this authori ty includes the po we r to ma ke a g rant fo r a pu blic purpose to a public entit y, such as a public s chool loc atedwithin t he county, to the e xtent t hat the grant i s not i ncons ist en t with or pr eempted by S tate la w. See First Nat’l Bank of

Birmingham v. WalkerCo unty Bd. of Educ. , 11 So. 2d 297 (A la. 1943); 15 Eugene M cQ uille n, Municipal Corporations §39.25 (3 d ed. 199 5).30 [81 O p. Att’y

2 Our conclusion is limited to the particular

proposal in question, as construed by the Coun

ty Attorne

y. This opin

ion does not addre ss any other potential legislative action by a county relating to education.

3 The boundaries of the pre emptedfield were not drawn by the Courtwith pre c ision. In 68 Opinions of the Attorney General 236, 237 (1983), Attorney General Sachs, after focusing on post- McCarthycases, noted that “[i]t is by no means entirely clear whether the Court ... intended to hold that local authority had been who lly preempted in every matter relating to education.” III

Preemption and Conflict I ssues A. Implied P reem ption and the E duc ation Article
In McC arth y v. B oar d of Ed uca tion , 28 0 Md. 634 , 374 A.2d 1135 (1977), the C ourt o f Ap peals h eld tha t a cha rter cou nty lacked the power to requi re a board of educati on to provi de bus trans portation for par ochialschool st udents. This holding was based on a finding of impli ed preemption: State l egisl ationin the fie ld of educati on, the Cou rtconclud ed, “dem onstrates the occ upation of t ha t field by th e State

. ” 280 M d. at 65 1. Th erefor e, a ch arter co unty “was without power

to legisla te in this fiel d and to pla ce addit ional duties upon” the boa rd o f ed uca tion

. Id . The forc e of this implied preemptionwould invali date e ven lo cal leg islation th at is “harmonious” wit h S tate la w. Cf. De Canas v. Bic a , 424 U.S. 351, 356 (1976) (describing effect of preemptive federal law). Thus, because the propos ed co unty i ncen tive pro gram relates to the field of edu cation, the question arises whe ther McCarthy preclu des th is particu lar exe rcise o f cou nty p ow er. In ou r view , it does n ot. 2
The subject

of the incent ive progr am, financi al aid for schools, falls within t

he core of t

he “fie ld” occupi ed by the State. 3 Ye t, this de te rminati on does not end t he analysi s. I n Opinion No. 94-019 (March 31, 1994) (unpublis hed) and later in court, this offi ce suggeste d that the imp lied pre em ption d octrine only lim its th e auth ority of a loca l sub div ision to “r egu late” by l egis latio n. The implied pr eemption doctrine s afeguards the General Assem bly’s decisi on “to occupy a spec ific field of reg ula tion ....” Mayor and

City Council of Baltimore v. Si tnick, 254 Md. 303, 323, 225 A.2d 3 76 (196 9) (em phasis add ed). The d octri ne prev entsGen. 26] 31
“future localgovernment tr espass in [ an ] area of exclusi ve legis lative authori ty.. ..” County Co uncil v. Montgomery Ass’n, 274 Md. 52, 60 n. 5, 333 A.2d 596 (19 75). Loc al “trespass” occ urs if a localgov ernm ent pu rports to crea te enfo rceab le rights or obli gations with in the p reempted fi eld

)in othe r wo rds, attem pts to re gulate with in that f

ield. See, e. g., Howard County v. Potomac Elec. Power Co ., 319 Md. 511, 573 A.2d 8 21 (199 0) (l ocal re quirement t hat util iti es obtain s peci al exc eption s tatus under loca l ordi nances for sit ing of certa in tr ansmissi on lines ). Localregulation creates a “dual system of regul ating” the fi eld, a duali ty incons ist ent with t he legis lativ e go al. Mo ntgom ery Ass’n , 274 Md. at 64

. Cf. Engli sh v. GeneralEle ctri c Co ., 496 U. S. 7 2, 79 (1990) (“[S]t ate l aw is preempted wh ere it regulates conduct i n a fiel d that Congress int ended the Federal G overnm ent to occu py exc lusively.”) (emp hasis adde d).
In its mo st r ece nt im plied pre em ptio n ca se, Alli ed Vending, I nc. v. City o

f Bow ie , 332 Md. 279, 631 A.2d 77 ( 1993) , the Cour t of Appeals agai n emphasized the regulatory charac ter of the loc al law. The case involved two municipalordinance s that regulat ed the locat ion of cigarett e vending ma chines through a licensi n g requ irem ent. The Court held t hese loca l requirements t o have been preemptedby S tate law. In desc ribing th e facto rs to be exam ined in determining whether pree mpt i on by im plication exists, the Co urt asked “whether the localordinance regulates an a rea ..., whether the State law e xpre ssly prov ides co ncur rent legis lative authori ty to l ocal juri sdict ions or req uires c om plianc e w ith loca l ordin anc es, ... whether the parti cular a spectof the f ield sought t o be regulated by the localgovernment has been addre ssed by the S tate le gisla tion , ... and

... whether a two-tier ed regulatory proc ess ex isting if lo ca l l aws were not pre -em pted wo uld eng end er ch aos and con fusio n....” 332 Md . at 299-300 (emp hases add ed, citations om itted).
We constr

ued this language i n Alli ed Vendingto m ean th at, althougha chart er county c ould not l egisl ate t o regulat e the l ocati on of cigarette vending machines, neve rthel ess a count y was not preclude d from passi ng a nonbinding r esolut ion encoura ging business es to rem ove th ose m achin es fro m their pr emises. Our unders tandin g of the s cope of pree mption was affirmed by the Circu it Court for

Howard County in Alli ed Vending, I nc. v. How ard Co unt y, Case N o. 94-CA -24895 (Ma rch 19, 19 96) (Sw eeney, J.):32 [81 O p. Att’y
W hile the Councilmay not legis lat e t o regu late ci gare tte ve nding machines,

... the Co uncil may pass a non -bi nding res oluti on exp ressi ng i ts opi nion on thi s iss ue. Resoluti on 48-1994 does not creat e lia bili ty or create a new rule of ge neral a pplicat i on, and therefore it is not leg islative in the nat ure of an or di na nc e o r l aw. To be sure, the H arford Co unty ’s scho ol perf orm ance incen ti v e program was proposed to be enacted l egisl ative ly as an or dinance. The County Attorney, however, char ac terized the measure as a pure ly voluntar

y plan that imposes no bur den on the schoolbo ar d: “The Co unty realizes and a ccep ts the fac t that it can neithe r require a scho ol to pa rtic ip ate i n the voluntary progr am nor requir e the B oard to order

a school t o parti cipat e.” The propos ed program , theref ore, hardly amounts to an attem pt to “regulate” education. The proposalis not

preempted merely be cause it touches t

he fiel d of educati on. We doubt that an y seri ou s legal o bjectio n w ould be rais ed if the cou nty’s program rewarded school s that perfor med well, by coun ty cr iteria, with a plaque o r other form of non-m onetary recognition. The o verall preem ption issue is no d ifferent, howev er, simp ly because the recogn ition takes the form of a m onetary gran t.
B. Spe cific P reem ption or C onflict w ith the E duc ation Article
Even i f Harford Cou nty is perm itted some n onregu latory autho rity in the fi eld of educ ation, the question remains whether the proposedgran t prog ram is pree mp ted by or co nflicts w ith spec ific pro visio ns o f the Ed uca tion Ar ticle.
1. Edu cation p olicy-m aking a uthority Undoubtedly, the co unty boar d of e duca ti on an d the c oun ty schoo l superi ntendent

make local educationalpolicy in eac h subdivi sion. ED §§4-10 7 a nd 4 -205 . Nev erthele ss, the C oun ty Attorneyhas charac teri zed the per formance ince ntive pro gram as one conferring a p rize or aw ard on school s subje ct to the dir ecti on of the bo ard o f edu cation . Acc epting this ch aract erization of the intent of the pr oposal, we believe t hatthe pro gram will no t opera te like many grant progr ams, under whicha recip ient is contra ctually bound to ad her e to v ario us c ond ition s. See , e.g ., Pennhu rst StateGen. 26] 33
Sc hoo land Hospital

v. Halderman , 451 U.S. 1 ( 1981). I f the program were one in which county educational pol icy st andards were imposed by contr act on a sc hool rece iving count y f u nds , w e would questi on its validity. Ratherthan imp erm issibly establ ishi ng educati onal st andards that a school must meet in the futur e, the county incent ive progr am is more properl y view ed as setting eligibility requireme nts for a grantfor which a school may compete on the basis of its past perfor mance. A school is not

oblige d to se ek or acce pt a grant, and localeducati on authori ties remain fr ee as a matter of poli cy to dir ect a school not

to apply f

or or acce pt a grant

or to acc ept only wit

h the approval of the board or superintendent . Indeed, if t here were a confli ctbetween board- imposed perfor mance standards and countydetermined

stand ards for

an incent ive grant , a schoolwould be obliged to adher e to the board’s s tandards . As long as this nonbinding, non -c ont

ra ct ua l p ro gr am d oe s n otinte rf er e wi th th e discr etionof localeducati onal authorit ies or place c ond iti ons on a school that r eceives a grant, however, it would not be preemptedby or in conf

lict with ED §§4-107 and 4-205.
2. State School Perf ormance Program
At its 1 9 96 sessi on, the General Assembly est ablis hed a program under which the Stat e Superint endent of Edu cation wo uld annu ally distribut e recogni tion awards to ele men ta ry an d m iddle scho ols that s how substanti al improvement t oward meeting s tan dards of the Maryland School Perf ormance Program. ED §5- 203.3. W e do n ot vi ew the creat ion of t he State -funded and St ateadminist er ed pro gram as barring a county from establi shing a voluntar y, non-bind ing grant pro gr am that al so rewards s chool perf ormance, as long as the progr am does not inf ringe on th e discr etionof Stat e or loc a l e duc at io na l authoritie s. If th e two pr og rams turn o ut to be inc om patible in practi ce, t hose in charge of the sch oo l system ca n simp ly decline to pa rticipate in the county’s pr og ram. 3. Advisory committees
Under ED §4-111 , “[e]ach cou nty board shallestabl ish at least one citizen advisory com mittee to adv ise the b oard and to facilitate its acti viti es and progr ams in the publ ic school s.” T his provi sion wo uld bar a county from inte rfer ing with a scho ol bo ard’s d uty to establishan adv isory committee. The comm issi on contemplat ed for34 [81 O p. Att’y
the grant pr ogram i s not a n “ad visory com mittee ,” how ever, fo r it has nothi ng to do with advi sing the school board.
4. Cou nty ap prop riation req uirem ents
It is rare for

an enactment t o rais e a preempti on issue when a localgovernment propose s to spend more than is required fo r a mandated pr og ram. See Ramos v. Montgomery, 313 F. Supp. 1179 (S .D

. Ca lif. 19 70) , af

f’d , 400 U.S. 1003 (1971) (rej ecti ng federal preemptionchallenge to state p olicy of m aking high er welfare paym ents to foster paren ts than birth parents).
The manner in which a count y appropri ates fu nds for t he annual budget of t

he localboard o f education, ho wev er, is cont roll ed entirely by S tate la w. See 68 Opinions of the Attorney General236, 238 (1 983). The ext

remely complicated “maint enance of ef for t ” provisi ons in ED §5-202(b) refl ect a l egisl ative decisi on to preclude independent

county deci sion-making a bout the r equirements for “appropri at[i on of] l ocal fund s t o th e sc hoo l op erati ng b udg et ....” ED §5- 202 (b)(3 )(ii)2

. See g ener ally 76 Opinions of the Att orney Gen eral 153 (1991). In our vi ew, Stat e controlextends to bot h man datory appropri ations to the s chool bu dg et and discretiona ry am oun ts provided pur suan t to ED §5-103(c), which a uthori zes coun ty governments t o “provide f unds that are more thanthe amount requir ed by [maintenanc e of eff ort pr ovisi ons] to s upport i mproved and addit ional programs.”
This prov ision, as we ll as othe rs relate d to county funding of a scho ol syste m, m ay be said to refl ect State pree mption of a small er field within t

he fiel d of educat ion

)namely, fi scal r elat ions bet ween a county a nd a bo ard of edu cation. ED §5-103 (c), in particular, might we ll preempt a county’s eff ort t o creat e a paral lel s ystem of direct funding o f individual scho ols, outside appro pri ations to the school board, l inkedto future “improved and additional programs” to be support ed with thos e funds. In other words, a count

y may not conditi on eligibili ty for

a granton a school’ s agreement t o pursue a parti cular

pr og ram o f instructi on. If a county gover

nment, for example, t hi nk s t

ha t mo re intensiv e teach ing o f pho nics w ould improve reading pe rformance, the count y can seek t o sup por t its prefer red instructi onal progr am through a ddit ional f unds to the school board under ED §5-10 3(c ). The coun ty m ay no t attem pt to controlinstructi onal cont ent by means of gr ants t o indivi dual schools.Gen. 26] 35 Yet ED §5-103(c) does not, in o ur view , imp licitly proh ibit a diff erentcounty grant

program , o ne tha t offers in dividu al scho ols mo netary recog niti o n for succ essfulpast per formance without any at tempt to speci fy program content, to int erfer e with the school system ’s prerogative to de cide on programs, or to alt er any aspec t of the State- regulat ed budge tary proc ess. T he G enera l Ass em bly itself recogniz es that parti cular schools might recei ve grants apart f rom the ordinary funding pr oce ss . “All propert y granted, conveyed, devi sed, or bequeathed f

or the us e of a particular pub lic sc hoo l ... [s]hal l be held in tru st for the b ene fit of th e sc hoo l ... by the appr opriate coun ty board ....” ED §4-113 (a)(1).
As we see it, the obje ction to the H arford Co unty prop osal is one gr ou nd edi n p ol i cyco nc er ns , no t pr ee mp tion d octrine. If the coun ty offer s a subst antia l amount of ext ra money to school s that meet the county’s perf

ormance standards, t

he scho ol bo ard w ill find itself under inten se pressure to allow school s to purs ue the money. Even if the county’s stan dards are compl ementary to t hose set by school offi cial s, t

he pursui t of t

he county’s money might in practi ce result in a pe rceive d shift o f pow er aw ay fro m th e sch ool b oard to the county. Nevertheless, we cannot trans form polic y concerns into a l egal veto. As long as a count y perfor mance grant progr am remai n s with in the co nfines discu ssed a bov e, it is not p reem pted b y or in confli ct with t

he budgetar

y provisi ons of the Education Art icle

. C. Defects i

n Bill 96-21 Although we conc lud e that a chart er county may est ablis h a grantprog ram along the line s you have prop osed , we d o find le g al defec ts in certain features of B ill 96-21. First, the proposal ap pears to requir e a member of the l ocal boar d of educat ion to s erve on the Harford County Comm issi on on Schoo l Per formance. I n our opinion, a localordinance cannot re quire s uch servi ce by a member of a board whose duti es deri ve solely from State law. Second, the bill apparent ly requires funding proposal s to be subm itted by “scho ol improvement teams” composed of teac hers andparents , rat her than any offi cer of t

he school. Because a grant appl icat ion will make certain repres entat ions as to use of the funds by the school , and because a sch ool h as the a bsolu te discre ti o n to ac cept o r reject a gran t, any appli cati on for funding should be made expressly subject to the approva l of sc hoo l auth oritie s. Th ird, a school se eking a grant must agree that use of

the grant

money will “help inc rease s tudent36 [81 O p. Att’y perfor mance and be con siste nt w ith [th e] sc hoo l im pro vem ent p lan.” This requ irem ent su gges ts imp erm issible co unty invo lvem ent in future programm atic content, as distinct from an assessment of past perfor mance.

IV

Conclusion In summary, it

is our opin ion tha t a cha rter ho me rule coun ty may establisha school per formance ince ntive grant progr am as long as the progr am is a purel y voluntar y, non-cont

ractua l arr ange men t that rewards past perfor

mance and neither

imposes fut

ure conditions on the operation o f local schools n or interfe res with t he dutie s of State or local educati on authorities.
J. Joseph C urran, Jr. AttorneyGeneral
Jack Sch wa rtz Chief Counsel Opinions and Advic e Robert A. Zarnoch Assist ant Attorney General