Does a state agency have to go through formal rulemaking to adopt a workplace smoking policy?

Plain-English summary

In 1987, the State Aviation Administrator asked the Attorney General three questions about Governor Schaefer's Executive Order 01.01.1987.13, which set a statewide smoking policy for executive branch agencies: whether it applied to airport space leased to private concessionaires, whether each agency's implementing smoking guidelines had to go through formal rulemaking under the Administrative Procedure Act, and whether the order's dispute resolution process replaced employees' existing grievance rights.

The Attorney General concluded that the order did not apply to portions of Baltimore/Washington International Airport leased to private businesses and used by the public only to transact business with those private lessees, reasoning that the order was meant to protect the environment of State-occupied workspace, not to override existing lease arrangements that already gave lessees control over customer-facing policies like smoking. On rulemaking, the opinion concluded that each agency's specific smoking guidelines, while technically meeting the broad statutory definition of a "regulation," fell within the Administrative Procedure Act's "internal management" exception because they were directed at employee conduct in the workplace and had only an indirect, incidental effect on the public, who could still conduct their business at State offices just as before, only without smoking. Finally, the opinion concluded that the order's committee-based dispute resolution process was meant to supplement, not replace, an employee's existing statutory right to file a grievance over how an agency's smoking guidelines were applied to them.

Currency note

This opinion was issued in 1987. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did Maryland's 1987 statewide smoking ban apply to shops and counters leased out at BWI Airport?
No, according to this opinion. The Attorney General concluded the Executive Order did not reach portions of the airport leased to concessionaires and other private businesses that the public used only to transact business with those private lessees, since the order was aimed at State-occupied workspace and existing leases already let lessees set customer-facing policies.

Did each Maryland agency have to hold public hearings and go through formal rulemaking before adopting its own smoking policy guidelines in 1987?
No. The opinion concluded that although the guidelines technically met the broad definition of a "regulation" under the State Government Article, they fell within the Administrative Procedure Act's "internal management" exception because they were addressed to employee conduct and affected the public only indirectly, so agencies could put them into effect without notice-and-comment rulemaking.

Could a state employee still file a grievance over how a smoking policy was enforced against them, or did the Executive Order's own dispute process replace that right?
The opinion concluded the Executive Order's committee process was meant to supplement, not replace, an employee's existing statutory grievance rights under Article 64A, and could not be read to cut off an employee's right to file a formal grievance over the application of the smoking policy.

Background and statutory framework

Executive Order 01.01.1987.13 prohibited smoking in general public access areas, government shuttle buses, and designated areas of State cafeterias and dining rooms, and directed each department and agency to form a Smoking Policy Review Committee to develop implementing guidelines by October 1, 1987 and to resolve disputes arising under them, with a directive to give "reasonable priority to the needs of nonsmokers" where interests conflicted. The order did not apply to the ground and first floor of the State House or to spaces assigned to the legislative and judicial branches.

On the leased-space question, the opinion read the order's stated purpose, providing a healthful working environment in buildings occupied by executive agencies, as limited to spaces where State employees and the public conducting business with the State were present, not spaces leased out to private businesses whose own lease terms typically already covered operational matters like a smoking policy for customers.

On rulemaking, the opinion applied the State Government Article's broad definition of "regulation," a statement of general application and future effect adopted to carry out a law, and the narrower "internal management" exception for statements that concern only internal management and do not directly affect the rights of the public or the procedures available to them. Since no reported Maryland case had construed the boundaries of that exception, the opinion surveyed cases from other jurisdictions distinguishing staff instructions that merely spell out internal processing steps (within the exception) from directives that impose new application procedures, eligibility criteria, access restrictions, or fees on the public (outside the exception). The opinion placed the smoking guidelines in the first category, reasoning that a directive governing the on-the-job behavior of employees to address a workplace environmental problem is a classic exercise of an agency's internal, custodial management of public property, and that the only effect on visiting members of the public was a temporary prohibition on smoking during their visit, not any impairment of their ability to conduct business with the agency.

On the grievance question, the opinion read Article 64A's broad definition of "grievance," covering any dispute over the application of a policy within management's control, together with the executive order's own emphasis on providing an informal problem-solving forum through each agency's Smoking Policy Review Committee, and concluded the two were meant to work together rather than the order's process displacing the statutory grievance right, particularly because an executive order issued under the State Government Article cannot override an existing statutory right.

Citations

Statutes:

• §3-401 of the State Government Article (executive order authority over rules of conduct for State employees and persons who deal with them)
• §10-101(e) of the State Government Article (definition of "regulation" under the Administrative Procedure Act)
• §10-101(e)(2)(i) of the State Government Article ("internal management" exception to the definition of "regulation")
• Article 64A, §52(b) (definition of "grievance")
• Article 64A, §53(a) (employee's statutory right to present a grievance)
• Article 64A, §53(c) (persons excepted from the grievance procedure)
• Subtitle 4, Title 3 of the State Government Article (authority for executive orders)
• Executive Order 01.01.1987.13 (Executive Agency Policy on Smoking)

Cases:

• Citizens for Sensible Zoning v. Department of Natural Resources, 280 N.W.2d 702, 707-08 (Wis. 1979)
• Doe v. Chang, 564 P.2d 1271 (Haw. 1977)
• Rogue Flyfishers, Inc. v. Water Policy Review Bd., 660 P.2d 1089 (Ore. App. 1983)
• Island County Comm. on Assessment Ratios v. Department of Revenue, 500 P.2d 756 (Wash. 1972)
• T.S.C. Motor Freight Lines v. United States, 186 F. Supp. 777 (S.D. Tex. 1960), aff'd mem. 366 U.S. 419 (1961)
• Joseph v. Civil Service Comm'n, 554 F.2d 1140, 1153 n.23 (D.C. Cir. 1977)
• Seaboard World Airlines v. Gronouski, 230 F. Supp. 44, 46 (D.D.C. 1964)
• Senn Park Nursing Center v. Miller, 455 N.E.2d 153 (Ill. App. 1983), aff'd in part and rev'd in part on other grounds, 470 N.E.2d 1029 (Ill. 1984)
• Holdman v. Olim, 581 P.2d 1164, 1170 (Haw. 1978)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1987/Volume72_1987.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Personnel—Smoking Policy—Executive Orders—Guidelines—Rulemaking—"Internal Management" Exception.

July 8, 1987

Mr. Theodore E. Mathison
State Aviation Administrator
Maryland Department of Transportation

You have requested our opinion on several questions related to Executive Order 01.01.1987.13, entitled "Executive Agency Policy on Smoking." Specifically, you ask:

1. Does the Executive Order apply to space at Baltimore/Washington International Airport that, although accessible to the general public, is leased to private persons?

2. Are the smoking policy guidelines that are to be established by each agency subject to the rulemaking requirements of the Administrative Procedure Act?

3. Does the Executive Order's procedure for resolution of "employee concerns about their treatment" under the smoking policy supplant existing employee grievance procedures?

For the reasons stated below, we conclude as follows:

1. Executive Order 01.01.1987.13 does not apply to State-owned property that, like portions of Baltimore/Washington International Airport, is leased to private parties and is used by the general public to transact business with those private lessees.

2. The smoking policy guidelines for each agency are not subject to the rulemaking requirements of the Administrative Procedure Act.

3. The dispute resolution procedures contemplated by the Executive Order supplement, rather than supplant, existing employee grievance procedures.

I
Executive Order on Smoking Policy

On May 6, 1987, Governor Schaefer issued Executive Order 01.01.1987.13, "Executive Agency Policy on Smoking."1 The Executive Order sets out the following broad prohibition: "In addition to those areas governed by State laws, smoking is prohibited in general public access areas, Government operated shuttle buses, and designated areas of cafeterias and dining rooms." §1(A).2

The Executive Order also sets out the procedures for implementation and enforcement of this overall smoking policy. Each department and agency is to establish its own Smoking Policy Review Committee.3 These committees have two principal tasks: to develop guidelines to implement the smoking policy, which are to be established by October 1, 1987; and to resolve specific problems that might arise under the guidelines. §2(B) and (C).

Although the Executive Order gives little specific direction to the committees, the order's reference in §1 to "the needs and concerns of smokers and nonsmokers alike" implies what would be obvious anyway, each committee is to act in a fair and even-handed way, consistent with the order's emphasis on protecting all employees and visitors from the hazards of smoking. Where interests conflict, the priority set by the Executive Order is clear: "In the development of specific guidelines or the resolution of specific problems relating to the State's smoking policy, the Committee shall give reasonable priority to the needs of nonsmokers." §2(C).

II
Applicability of Executive Order to Leased Spaces

The overall purpose of the smoking policy is "to provide a healthful working environment in areas of buildings occupied by Executive branch agencies . . . ." §1. The scope of the order is also suggested by language in the preamble speaking of the State's responsibility "to promote a healthy and safe environment for all employees and individuals who conduct business in State offices." Preamble (emphasis added).

Given this language, we believe that the order was not intended to apply to the property of an Executive Branch agency that (i) is leased to a private business and (ii) is used by the general public solely to conduct business with a private lessee and not with State employees. Construing the order in this way avoids conflict with existing lease arrangements, which typically contemplate that the lessee is responsible for determining an operational policy like smoking by customers in the leased premises.

Thus, we conclude that the order does not apply to the portions of Baltimore/Washington International Airport that are leased to concessionaires and other private businesses.

III
Applicability of Rulemaking Requirements

A. Definition of "Regulation"

Section 10-101(e) of the State Government Article ("SG" Article) defines "regulation" quite broadly:

"(1) 'Regulation' means a statement or an amendment or repeal of a statement that:

(i) has general application;
(ii) has future effect;
(iii) is adopted by a unit to:

1. detail or carry out a law that the unit administers;
2. govern organization of the unit;
3. govern the procedure of the unit; or
4. govern practice before the unit; and
   (iv) is in any form, including:
5. a guideline;
6. a rule;
7. a standard;
8. a statement of interpretation; or a statement of policy.

(2) 'Regulation' does not include:
(i) a statement that:

1. concerns only internal management of the unit; and
2. does not affect directly the rights of the public or the procedures available to the public.

(3) 'Regulation', as used in §§10-110 and 10-111.1, means all or any portion of a regulation."

This office has consistently construed the definition of "regulation" as broadly as its language and apparent underlying intent direct. See 70 Opinions of the Attorney General 208 (1985) (automatic waiver program as to certain tax penalties); 66 Opinions of the Attorney General 151 (1981) (Home Improvement Commission policy change); 65 Opinions of the Attorney General 396 (1980) (Racing Commission policy regarding Sunday racing); 64 Opinions of the Attorney General 208 (1979) (lottery prize structure); Opinion No. 75-099 (July 21, 1975) (Financial Disclosure Advisory Board procedures); Opinion No. 75-064 (May 22, 1975) (rules relating to State contracts); and Opinion 75-033 (March 4, 1975) (Central Collection Unit rules). Cf. 68 Opinions of the Attorney General 9 (1983) (narrow exception for proprietary price setting).

We have little doubt that each agency's smoking policy guidelines will be a statement of "general application" and "future effect" adopted by each agency to detail and carry out Executive Order 01.01.1987.13.4 Hence, the guidelines meet the basic definition of a "regulation" in SG §10-101(e)(1). They are subject to APA rulemaking requirements, therefore, unless they are excluded from the definition by SG §10-101(e)(2)(i), that is, unless they "concer[n] only internal management" and "d[o] not affect directly the rights of the public or the procedures available to the public."

B. Criteria for Application of "Internal Management" Exception

As far as we are aware, no reported case has construed the "internal management" exception to the rulemaking requirements of the Maryland Administrative Procedure Act. Two opinions of this office refer to the exception, but neither describes its boundaries.5

From the statutory phrase "does not affect directly the rights of the public or the procedures available to the public," we infer the General Assembly's recognition of the fact that virtually every internal management directive will have at least some tangential effect on the public, however attenuated. This is inevitably so, given the public responsibilities of State agencies. Thus, the key in applying this exemption is to determine whether an instruction to staff or other management directive that is primarily addressed to State personnel nevertheless has significant direct effects on the public, as distinct from the inevitable indirect ones.

The problem most often arises when an agency issues detailed instructions, addressed to its staff, on how to implement a statute. Some instructions of this kind merely spell out operational details like what forms to fill out, what approvals to obtain, or what evidence to look at to determine whether an applicant meets a statutory standard. This type of staff directive does not have a direct, substantial effect on the public and therefore is within the "internal management" exception. Doe v. Chang, 564 P.2d 1271 (Haw. 1977); Rogue Flyfishers, Inc. v. Water Policy Review Bd., 660 P.2d 1089 (Ore. App. 1983); Island County Comm. on Assessment Ratios v. Department of Revenue, 500 P.2d 756 (Wash. 1972). Cf. T.S.C. Motor Freight Lines v. United States, 186 F. Supp. 777 (S.D. Tex. 1960), aff'd mem. 366 U.S. 419 (1961).

On the other hand, some instructions go beyond the specification of processing steps or other tasks that the agency's staff must accomplish. This second type of instruction, for example, imposes application procedures on members of the public, establishes eligibility criteria not set forth in a statute, restricts access to a statutory benefit, or imposes fees. This type of staff directive does have a direct, substantial effect on the public and therefore is beyond the "internal management" exception. See Joseph v. Civil Service Comm'n, 554 F.2d 1140, 1153 n.23 (D.C. Cir. 1977); Seaboard World Airlines v. Gronouski, 230 F. Supp. 44, 46 (D.D.C. 1964); Senn Park Nursing Center v. Miller, 455 N.E.2d 153 (Ill. App. 1983), aff'd in part and rev'd in part on other grounds, 470 N.E.2d 1029 (Ill. 1984). See also 57 Opinions of the Attorney General 478 (1972).

In summary, then, whether a staff directive or other similar statement is exempt from rulemaking by virtue of the "internal management" exception depends on the practical consequences for members of the public. The exception applies only if the internal guidance does not significantly affect either the procedural steps that interested persons must take in their dealings with an agency or the allocation of substantive benefits or burdens.

C. Application to Smoking Policy Guidelines

Like the Executive Order itself, the guidelines address internal management concerns only. In general, "the internal management of an agency necessarily includes the custodial management of public property entrusted to the agency." Holdman v. Olim, 581 P.2d 1164, 1170 (Haw. 1978). A directive, primarily addressed to the on-the-job behavior of State employees, that seeks to ameliorate an environmental problem in the workplace is, we think, a classic instance of this kind of "custodial management of public property."

As we see it, the smoking policy guidelines would affect the general public only indirectly or incidentally. The only effect of the guidelines on members of the public is that those who smoke would be prohibited from smoking, under circumstances defined in the Executive Order and the implementing guidelines, during the brief period of their visit to a State office building. Citizens come to State offices to conduct business, not to smoke. Nothing in the guidelines will impair their opportunity to conduct that business. Cf. Holdman v. Olim, 581 P.2d at 1170-71 (dress code for visitors to prison does not affect visitors' rights and is within "internal management" exception).

Put differently, those who transact public business do not have a right to smoke while doing so. Quite apart from the guidelines, visitors and employees alike have been subject to the authority of those in charge of public buildings to ban smoking. See Letter of Advice from Assistant Attorney General Catherine M. Shultz and Staff Attorney Beth Pepper to The Honorable Larry W. Shipley, Clerk of the Circuit Court for Carroll County (December 10, 1985).6

In sum, it is our view that the specific smoking policy guidelines to be developed by each agency pursuant to the Executive Order fall within the "internal management" exception in the Maryland APA. They "concer[n] only internal management" and "d[o] not affect directly the rights of the public," within the meaning of SG §10-101(e)(2)(i). Therefore, each agency may put them into effect without undertaking the procedures required of regulations.

IV
Effect on Grievance Procedures

If action is taken against an executive branch employee because of his or her non-compliance with an agency's guidelines for implementation of the smoking policy, that employee has a statutory right to present a grievance. Article 64A, §53(a).7 The definition of "grievance" includes "any cause of complaint . . . arising between an employee and his employer over the interpretation and application of . . . any . . . policies over which management has control." Article 64A, §52(b).

The apparent intent of §2(C) of the Executive Order is to provide an alternative forum for the informal resolution of problems. Ideally, the work of an agency's Smoking Policy Review Committee would resolve problems that would otherwise result in grievances. But the Executive Order may not be construed to impair an employee's right to present a grievance about the application of the smoking policy.8

V
Conclusion

In summary, it is our opinion that:

1. Executive Order 01.01.1987.13 does not apply to State-owned property that, like portions of Baltimore/Washington International Airport, is leased to private parties and is used by the general public to transact business with those private lessees.

2. The smoking policy guidelines for each agency are not subject to the rulemaking requirements of the Administrative Procedure Act.

3. The dispute resolution procedures contemplated by the Executive Order supplement, rather than supplant, existing employee grievance procedures.

J. Joseph Curran, Jr., Attorney General

Jack Schwartz
Chief Counsel
Opinions and Advice

1 Under §3-401 of the State Government Article, an executive order may prescribe "rules of conduct" for State employees and "persons who deal with them."

2 Section 1(B) provides that the order "does not apply to the ground and first floor of the State House and spaces assigned to the legislative and judicial branches of government."

3 Section 2(A) provides that the "size and composition of the Committee shall be determined by each Secretary or agency head, but shall include both smokers and nonsmokers as well as supervisory and nonsupervisory personnel."

4 A statement might be of "general application" even if it affects only a discrete subset of the citizenry: "[T]o be of general application, a rule need not apply to all persons within the state. Even though an action applies only to persons within a small class, the action is of general application if that class is described in general terms and new members can be added to the class." Citizens for Sensible Zoning v. Department of Natural Resources, 280 N.W.2d 702, 707-08 (Wis. 1979). At the same time, not every agency statement affecting a definable class is necessarily a regulation. For example, a group of persons in a contractual relationship with a State agency might be affected by agency directives authorized under the contract. We are not suggesting that these directives are of "general application," with the meaning of the APA.

5 In 57 Opinions of the Attorney General 478 (1972), the office briefly discussed the status, under the Maryland APA, of a six-volume manual of the Social Services Administration. One of the volumes, Laws and Rules, was adopted under APA rulemaking procedures; the other five, characterized by the agency as concerning only internal management, were not. The opinion recognized that, "[t]o the extent that the provisions of [one of the five other volumes] exceed the requirements of the Laws and Rules volume, such provisions are unenforceable." 57 Opinions of the Attorney General at 479. The other opinion, 61 Opinions of the Attorney General 3 (1976), merely concluded without analysis that "the standing operating procedures for the Public Defender's Office and [its] panel attorneys" fell within the exception.

6 Ms. Shultz and Ms. Pepper pointed out that "no court has held that smokers have a 'right to smoke' or a liberty interest encompassed by the Fourteenth Amendment." Letter of Advice at 2. Moreover, even "if we assume that a right to smoke exists, the smoking ban would be upheld nonetheless, because there is a rational basis for a rule banning smoking in the work place." Id. at 3.

7 Certain persons are excepted from the grievance procedures. See Article 64A, §53(c).

8 An executive order issued pursuant to Subtitle 4, Title 3 of the SG Article, "although it has the force of law, may not be contrary to existing express statutory provisions." 64 Opinions of the Attorney General 180 (1979).