458 [79 Op. Att’y

TRANSPORTATION

WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY )

TAXATION ) REGIONAL TRANSIT TAX NOT PERMITTED

UNDER CURRENT LAW

October 20, 1994

The Honorable Ellen R. Sauerbrey

House of Delegates

You have requested our opinion concerning the legality of a

regional transit tax recently proposed by mayoral candidate Marion

Barry to help pay for Metro bus and rail service. Because Mr. Barry

has not spelled out the details of how he would seek to impose such

a tax, we are unable to give a definitive opinion. However, it is our

opinion that a regional transit tax could not be imposed in Maryland

under current law. 

I

Background

The Metro system is operated by the Washington Metropolitan

Area Transit Authority (“WMATA” or “the Authority”), which was

created as a regional instrumentality, and as a common agency of

each signatory party, by a compact entered into between Maryland,

Virginia, and the District of Columbia, and consented to by

Congress. This compact, which is found at §10-204 of the

Transportation (“TR”) Article, Maryland Code, provides for

WMATA to prepare and adopt a plan for financing the construction,

acquisition, and operation of facilities. This plan constitutes “a

proposal to the interested governments for financial participation and

shall not impose any obligation on any government and such

obligations shall be created only as provided in §18 ....” Compact

§17(b). Section 18(b) providesthat “[c]ommitments on behalf of the

portion of the zone located in Maryland shall be by contract or

agreement by” the Authority with the Washington Suburban Transit

District (“WSTD”).

The WSTD was created by statute in the same year as

WMATA. See Chapter 870, Laws of Maryland 1965. The WSTD
Gen. 458] 459

To avoid repetition, we shall cite only the Montgomery County 1

Code provisions. The same language appears in the Prince George’s

County Code.

 A Washington Post article listed the proposed fiscal year 1994 2

subsidies as follows: District of Columbia ) $125,000,000; Montgomery

) $44,800,000; Prince George’s ) $41,300,000; Alexandria )

$13,600,000; Arlington ) $1,000,000; and Fairfax County ) $48,800,000.

Proposed Metro Budget Seeks Higher Subsidies, January 8, 1993.

law is codified in Chapter 87 of the Montgomery County Code and

Part III of the Prince George’s County Code. 

The WSTD is authorized to enter into contracts with the

Authority to cover construction, debt service, and operating

expenses. §87-12 of the Montgomery County Code. The law 1

provides that Montgomery and Prince George’s Counties are to

guarantee the obligations imposed on the WSTD. §87-13. 

II

Subsidizing Metro’s Deficits

The obligations of the WSTD can be funded by county taxes.

Montgomery and Prince George’s Counties may “levy any tax which

they are authorized to levy and use any available revenues or funds”

to meet their guarantees. §87-14(b). Any obligations not covered by

available funds or other taxes are to be covered by a tax on all

assessable property within the WSTD. §87-14(a). In fact, however,

the State currently funds 100% of the WSTD’s obligation. See TR

§10-205. In particular, the State pays 100 percent of the portion of

the Authority’s operating deficit “for which the [Washington

Suburban Transit] District is responsible.” TR §10-205(b). But the

State does not defray ) and, without a change in the law, could not

defray ) costs for which the WSTD is not responsible. These

include operating deficits for which the District of Columbia, not the

WSTD, is responsible.

The costs of the system presently are apportioned among the

participating jurisdictions based on population, ridership, and the

number of stations. A regional transit tax would replace or offset 2

this funding system with a tax that would apply evenly across the

region. Previous discussions of a regional transit tax have centered
460 [79 Op. Att’y

on a gasoline tax, the proceeds of which would be dedicated to

Metro funding.

Article 14 of the Maryland Declaration of Rights requires “the

consent of the Legislature” to any tax. The WSTD itself has no

authority under current law to impose a tax, or to agree to the

Authority’s imposing a tax. Nor do the counties have authority to

levy a new form of tax for this purpose. Hence, a regional transit tax

) for example, a gasoline tax applicable in Prince George’s and

Montgomery Counties only, with the proceeds dedicated to fund the

WSTD’s obligation to the Authority ) would require a change in

statute, either to impose the tax or to authorize the counties to do so.

It could not be done under current law. 

J. Joseph Curran, Jr.

Attorney General

Kathryn M. Rowe

Assistant Attorney General

Jack Schwartz

Chief Counsel

 Opinions & Advice