Can Maryland's legislature cap a state manager's salary through budget bill language instead of a separate law?

Plain-English summary

In 1988, Maryland's Secretary of Budget and Fiscal Planning asked the Attorney General whether a dollar cap the General Assembly had written into the FY 1989 Budget Bill, limiting the salaries of various middle and senior management state positions, was a valid use of the legislature's budget power, and whether there was any lawful way a manager could be paid above that cap in exceptional circumstances. The opinion concluded the cap was constitutionally valid because it was directly tied to how the appropriated salary money could be spent, applied only for that one fiscal year, and did not rewrite the pay plan statute or the budget amendment statute that governed how salaries could otherwise be increased. It further concluded the cap reached not just the lump-sum salary adjustments appropriation but every individual agency's own salary appropriation, since reading it narrowly would have let agencies simply free up money elsewhere to get around the limit. Finally, the opinion concluded the cap did not restrict Maryland's separate General Emergency Fund, so the Board of Public Works retained its ordinary authority to pay a manager above the cap out of that fund if the Board found a genuinely unanticipated and exigent circumstance justified it.

Currency note

This opinion was issued in 1988. 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

Could Maryland's legislature limit executive salaries just by writing a condition into the Budget Bill?
Yes, according to this 1988 opinion, so long as the condition met a three-part test the Attorney General's office and the Court of Appeals in Bayne v. Secretary of State had already adopted: the restriction had to be directly related to the appropriated money, could not in substance amend other legislation or mandated regulations, and had to apply only for that budget year. The opinion found the FY 1989 executive management salary cap satisfied all three parts.

Did the salary cap apply only to the lump-sum salary adjustments fund, or to every agency's own budget too?
The opinion concluded it reached both. It found the Budget Bill's own Section 3 listing and its legislative history showed the General Assembly meant the cap to cover an executive's total pay, whether drawn from the central salary adjustments appropriation or from the manager's own agency budget, reasoning that a cap reachable only through one funding source would have been easy to sidestep.

Could the Board of Public Works still pay a manager above the cap in an emergency?
Yes. The opinion concluded the salary cap did not restrict Maryland's General Emergency Fund, a separate contingency fund recognized in the Maryland Constitution, so the Board of Public Works retained its traditional authority to supplement a manager's pay from that fund if the Board determined a bona fide, unanticipated, and exigent circumstance justified it.

Background and statutory framework

The FY 1989 Budget Bill, as amended by the General Assembly, added a list of "executive management" positions with a specific salary ceiling for each and language barring the salary adjustments appropriation (item 26.01.07.01) from paying above those levels. Because Maryland's 1916 Executive Budget Amendment, Article III, §52 of the Constitution, sharply limits how the legislature may alter the Governor's proposed Budget Bill and insulates it from gubernatorial veto (a scheme discussed in Maryland Action For Foster Children, Inc. v. State and Mayor and City Council v. State), this office had long cautioned against "legislating in the budget," a concern traced through a line of AG opinions from 1937 to 1978.

The opinion applied the three-part test the office adopted in 1978 and the Court of Appeals endorsed in Bayne v. Secretary of State: a budget condition is valid if it is directly related to the sum appropriated, does not in essence amend substantive legislation or mandated regulations, and is effective only for the fiscal year appropriated. Measured against the pay plan statute (Article 64A, §27, as amended by Chapter 543 of the Laws of Maryland 1988) and the budget amendment statute (State Finance and Procurement Article §7-209), the opinion found the salary cap did not amend either, because both statutes already made salary increases contingent on the General Assembly's appropriation choices, so a restriction on available funds was "budgeting in the budget," not "legislating in the budget."

On the cap's reach, the opinion applied the interpretive principles from Kaczorowski v. City of Baltimore and Carolina Freight Carriers v. Keane, that a plain-meaning reading should not be applied so rigidly as to defeat evident legislative purpose, and concluded from the Budget Bill's Section 3 listing (required by SF §7-109) and the Joint Chairmen's Report that the General Assembly intended the cap to reach both the salary adjustments appropriation and each agency's own salary appropriation, since a cap that agencies could route around by freeing up their own funds would have been no cap at all, citing the presumption against ineffective legislation from Swarthmore Co. v. Kaestner.

Finally, on the General Emergency Fund, a contingency fund the Constitution recognizes at Article III, §32 and that the Board of Public Works has traditionally used to cover unforeseen personnel costs, the opinion found no "clear and unmistakable" budget language restricting the Fund and concluded the General Assembly meant only to prevent wholesale salary increases under normal circumstances, not to disable the Board's separate emergency authority.

Citations and references

Statutes:

• Article III, §52
• Article III, §52(3) and (5)
• Article III, §52(5a)
• Article III, §52(6)
• Article III, §52(8)
• Article III, §52(14)
• Article III, §35
• Article III, §32
• Article 64A, §27
• Article 64A, §27(a)
• State Finance and Procurement Article §7-206
• State Finance and Procurement Article §7-209
• State Finance and Procurement Article §7-209(b)
• State Finance and Procurement Article §7-209(d)(2)(i)
• State Finance and Procurement Article §7-209(d)(2)(ii)
• State Finance and Procurement Article §7-209(g)
• State Finance and Procurement Article §7-210(a)
• State Finance and Procurement Article §7-210(b)
• State Finance and Procurement Article §§7-208 and 7-208.1
• State Finance and Procurement Article §7-109
• Chapter 10, Laws of Maryland 1988
• Chapter 543 (House Bill 741) of the Laws of Maryland 1988

Cases:

• Kelly v. Marylanders for Sports Sanity, 310 Md. 437, 452-55, 530 A.2d 245 (1987)
• Maryland Action For Foster Children, Inc. v. State, 279 Md. 133, 142, 367 A.2d 491 (1977)
• Mayor and City Council v. State, 281 Md. 217, 378 A.2d 1326 (1977)
• Panitz v. Comptroller, 247 Md. 501, 509-13, 232 A.2d 891 (1967)
• Bayne v. Secretary of State, 283 Md. 560, 392 A.2d 67 (1978)
• Boulden v. Mayor, 311 Md. 411, 414, 535 A.2d 477 (1988)
• Kaczorowski v. City of Baltimore, 309 Md. 505, 514, 525 A.2d 628 (1987)
• State v. Fabritz, 276 Md. 416, 422, 348 A.2d 275 (1975)
• Carolina Freight Carriers v. Keane, 311 Md. 335, 339, 534 A.2d 1337 (1988)
• Swarthmore Co. v. Kaestner, 258 Md. 517, 527, 266 A.2d 341 (1970)

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/1988/Volume73_1988.pdf

Original opinion text

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

BUDGETARY ADMINISTRATION

Constitutional Law—"Legislating in the Budget"—Salary Cap—General Emergency Fund.

July 27, 1988

The Honorable Charles L. Benton
Secretary of Budget & Fiscal Planning

You have requested our opinion on the effect of certain restrictive language in the FY 1989 Budget Bill's appropriation for salary adjustments. This budget restriction, part of the appropriation for the Annual Salary Review ("ASR") and cost-of-living adjustments, sets a dollar amount cap on the salaries of various middle and senior management positions. Specifically, you ask whether there is any legally permissible mechanism by which one of these managers might receive a salary or other payment in excess of the cap, should exceptional circumstances justify that payment.

For the reasons stated below, we conclude that the budget restriction in question is a proper exercise of the General Assembly's constitutional power to condition or limit appropriations. The restriction prohibits the use of both the salary adjustments appropriation and the appropriations to the various Executive Branch agencies to pay a salary above the cap. However, the restriction does not prohibit the Board of Public Works from paying, out of the General Emergency Fund, an amount that would bring a manager's effective income above the cap, if the Board concluded that unanticipated and exigent circumstances justify the payment.1

I
The 1988 Legislation

A. The Executive Management Salary Cap

As you have noted, the FY 1989 Budget Bill (Chapter 10, Laws of Maryland 1988) contains a provision limiting the funds that may be expended to pay certain salaries. In particular, as amended by the General Assembly, the traditional salary adjustments item (26.01.07.01) in the Department of Personnel's budget was amended to include a list of so-called executive management positions, a specific salary for each, and a proviso "that no funds may be expended from this appropriation to pay salaries in excess of the salaries listed ... for each position classification. Apart from this 'executive management cap,' the salaries listed shall be inclusive of Annual Salary Review and cost-of-living adjustment." The General Assembly also reduced the proposed lump sum appropriation and called for the development of a salary plan for executive management positions.

B. The Pay Plan Statute

Chapter 543 (House Bill 741) of the Laws of Maryland 1988 was an omnibus personnel system reform bill introduced at the request of the Department of Personnel. Among other things, Chapter 543 amended the pay plan statute, Article 64A, §27.

Prior to the enactment of Chapter 543, the pay plan statute required the Governor to establish a pay plan for all classes of positions in both the classified and unclassified service. Amendments for specific classes of positions could be made to the plan from time to time when recommended by the Secretary of Personnel and approved by the Governor. However, with one exception, those amendments could not take effect unless and until funds were provided in the next State budget. That exception was "cases of acute emergency ... if the amendment is necessary in order to procure or to retain in the State services essential career administrative employees performing executive functions, or essential professional or technical employees, and upon the approval of the Board of Public Works ...."2

Chapter 543 significantly expanded the authority of the Secretary to make pay plan amendments that are effective immediately. No longer are such amendments limited to acute emergencies. Now "[t]he Secretary ... may amend the pay plan for specific classifications of positions in order to recruit or retain competent personnel or to ensure that compensation rates adequately compensate the skills, knowledge, effort, responsibility, and working conditions." Moreover, every approved pay plan amendment now takes effect immediately, subject to being rejected by the General Assembly at its next regular session. Article 64A, §27(a).3 Furthermore, the approval of the Board of Public Works is no longer required; gubernatorial approval is sufficient.4

In order to answer your question, we must determine whether the executive management salary cap is a constitutionally permissible budget limitation and, if it is, what appropriations the General Assembly intended to limit.

II
The General Assembly's Budget Authority

A. The Executive Budget Amendment

In order to put an end to budget deficits and provide for an orderly system of planned state expenditures, the Constitution of Maryland was amended, in 1916, to establish an executive budget system. See Kelly v. Marylanders for Sports Sanity, 310 Md. 437, 452-55, 530 A.2d 245 (1987). That amendment, commonly known as the "Executive Budget Amendment," is set forth at Article III, §52 of the Constitution.

Section 52 requires the Governor to present to the General Assembly, at the beginning of each regular session, a budget that contains a complete plan of proposed appropriations and estimated revenues for the next fiscal year and a bill, to be known as the "Budget Bill," that contains the proposed appropriations. Article III, §52(3) and (5). The Budget and the Budget Bill must present a balanced budget; the proposed appropriations may not exceed the estimated revenues. §52(5a).

"The heart of the executive budget system is subsection (6) of §52, which restricts the authority of the General Assembly to amend the Budget Bill." Maryland Action For Foster Children, Inc. v. State, 279 Md. 133, 142, 367 A.2d 491 (1977). Section 52 permits the General Assembly to amend the Budget Bill by increasing or diminishing items relating to the General Assembly or the Judiciary. Section 52 prohibits the General Assembly from amending the Budget Bill so as to affect State debt obligations, constitutionally mandated salaries, or certain public school appropriations; neither may it decrease the salary or compensation of any public officer during his term of office.5 Indeed, as to items not relating to either itself or the Judiciary, the General Assembly "may not alter the [Budget] bill, except to strike out or reduce items therein." §52(6). It may not increase such items.6

Subsection (6) also prevents the Governor from vetoing the Budget Bill as passed by the General Assembly. Under subsection (6), the Budget Bill becomes a law immediately upon passage by both Houses. It is not presented to the Governor; his approval is not required; and he has no opportunity or power to veto the Budget Bill. Mayor and City Council v. State, 281 Md. 217, 378 A.2d 1326 (1977).7

In view of the Executive Budget Amendment's significant limitation of the General Assembly's power to alter the Budget Bill and its insulation of that bill from gubernatorial veto in whole or in part, this office has long cautioned against "legislating in the budget." See 63 Opinions of the Attorney General 60 (1978); 61 Opinions of the Attorney General 454 (1976); 61 Opinions of the Attorney General 73 (1976); 59 Opinions of the Attorney General 70 (1974); 48 Opinions of the Attorney General 19 (1963); 46 Opinions of the Attorney General 13 (1961); 38 Opinions of the Attorney General 110 (1953); 37 Opinions of the Attorney General 139 (1952); 22 Opinions of the Attorney General 201 (1937). For example, in 1952 Attorney General Hammond advised, "The function and effect of the Budget Bill as a law is restricted by its purposes, and the mechanics set up by Section 52 of Article III carry out those purposes. That function and effect is to appropriate money, not to legislate generally." 37 Opinions of the Attorney General at 141. And in 1953 Attorney General Rollins said, "[T]he Budget Bill may not be employed as a vehicle of general legislation, since it, unlike other Acts, is not subject to gubernatorial veto, and thus does not enjoy the safeguards provided by the Constitution against hasty and ill considered legislation." 38 Opinions of the Attorney General at 110. Nevertheless, "[t]he Legislature may decrease or eliminate an expenditure proposed by the Governor and in the performance of this power, could ... cut down by condition or limitation on the use of the facility for which money was appropriated." 37 Opinions of the Attorney General at 142.

In 1978, this office reviewed its prior advice, concluded that the General Assembly's authority to reduce or strike out an item of appropriation includes the authority to condition or limit the use of the money appropriated or the use of the facility for which the money is appropriated, and approved the limiting of the FY 1979 medical assistance appropriation so as to prohibit its use for the funding of abortions under all or certain specified circumstances. 63 Opinions of the Attorney General 60 (1978). In so doing, the office enunciated and applied a three-pronged test for determining whether a budget condition or restriction is valid or impermissibly constitutes "legislating in the budget."

In Bayne v. Secretary of State, 283 Md. 560, 392 A.2d 67 (1978), the Court of Appeals agreed and adopted that test. Speaking for a unanimous court, Judge Orth said:

The General Assembly's authority to reduce or strike out an item of appropriation necessarily includes the authority to condition or limit the use of money appropriated, or the use of the facility for which the money is appropriated, provided the condition or limitation is directly related to the expenditure of the sum appropriated, does not, in essence, amend either substantive legislation or administrative rules adopted pursuant to legislative mandate, and is effective only during the fiscal year for which the appropriation is made. See [63] Opinions of the Attorney General [60] (1978). The conditions here meet this test. These are an integral part of the appropriation, directly related to the spending of the sum appropriated. They do not constitute an amendment of substantive legislation or administrative rules adopted pursuant to a legislative mandate; they do not require that the program of Medical Assistance be implemented in a manner contrary to statute or regulation. And, of course, the conditions are effective only during the fiscal year for which the appropriation was provided.

283 Md. at 574. Thus, in order to be constitutionally permissible, the executive management salary cap must pass muster under the test approved in Bayne.

The salary cap is a restriction directly related to the expenditure of the salary monies appropriated and is effective only during the fiscal year for which the appropriation is made. It therefore satisfies the first two of the three criteria. Consequently, unless the cap in essence amends substantive legislation or administrative rules adopted pursuant to legislative mandate, it does not constitute "legislating in the budget" and is constitutionally permissible.

B. Salary Increase Statutes

There are only two statutes that the salary cap might be thought to amend. One is the pay plan statute, Article 64A, §27. The other is the statutory budget amendment procedure, §7-209 of the State Finance and Procurement Article ("SF" Article). There are no arguably applicable legislatively mandated regulations.

1. The pay plan statute

As we observed in Part I B above, the pay plan statute, as amended by Chapter 543, authorizes the Secretary of Personnel, with the approval of the Governor, to "amend the pay plan for specific classifications of positions in order to recruit or retain competent personnel or to ensure that compensation rates adequately compensate the skills, knowledge, effort, responsibility, and work conditions." Article 64A, §27(a). However, the pay plan statute also expressly provides that a pay plan amendment "may not take effect unless sufficient funds have been included within the budget for that purpose." Id. Thus, the statute does not confer unbridled authority to amend the plan. Rather, the authority to amend the pay plan is dependent upon the General Assembly's exercise of its constitutional discretion to appropriate or not (in whole or in part, with or without valid restrictions) the funds required to fund the amended plan. Consequently, budget language like the ASR salary cap, which restricts the funds available for pay plan amendments, does not in essence amend the pay plan statute and is not "legislating in the budget." Rather, such a budget restriction is consistent with the statute and therefore is valid and binding. In the words of Attorney General Burch, such a restriction is "budgeting in the budget." 63 Opinions of the Attorney General at 75.

2. Statutory budget amendment

The initial appropriation for every program, including salaries, is set forth in an appropriation act, which in this instance is the Budget Bill. SF §7-206. However, the Governor has statutory authority to amend the budget for programs in the Executive Branch. SF §7-209.8 Under this budget amendment process, an officer or agency head may submit a proposed amended appropriation to the Secretary of Budget and Fiscal Planning, who, in turn, must review the proposal and submit it, together with his recommendation, to the Governor. SF §7-209(b).

This budget amendment process is subject to two express general limitations: First "[a]n amendment of an appropriation for a program may not increase the sum of the appropriation for all the programs" of the officer or agency. SF §7-209(g). Second, "[a] budget amendment may not change any language or substantive provision in the State budget." SF §7-210(a).9 There also is a special limitation regarding salary increases. If a proposed amendment would increase the salary for a "nonclassified position listed in the budget bill in accordance with §7-109" so as to exceed the amount set by the most recently enacted State budget, the Governor may approve the amendment only if the Board of Public Works has approved the increase and compliance with the pay plan statute is documented. SF §7-209(d)(2)(i). If the proposed amendment would increase the salary for any other position so that it exceeds the amount set in the most recently enacted State budget, the Governor may approve the amendment only if the Board of Public Works has approved the increase in accordance with the pay plan statute or as authorized by the Department of Personnel. SF §7-209(d)(2)(ii).

The majority of positions listed in the salary adjustments appropriation are "nonclassified positions listed in the budget in accordance with §7-109."10 Thus, the budget amendment statute permits an amendment increasing those salaries only upon compliance with the pay plan statute. But, as we have noted earlier, the pay plan statute permits an increase in salary only if sufficient funds have been included in the budget for that purpose. Consequently, by incorporating the "sufficient funds" requirement of the pay plan statute, the budget amendment statute has itself deferred to the General Assembly's budget discretion to strike out or reduce—and therefore the discretion to limit or condition—items in the Budget Bill. Thus, there is no inconsistency between the salary cap and the budget amendment statute, at least insofar as proposed budget amendments would increase the salaries of "nonclassified positions listed in the Budget Bill in accordance with Article 64A." In other words, when the Budget Bill sets a salary for such a position in one item, but in another item appropriates unrestricted funds that may be transferred by budget amendment, the Governor and the Board may approve an increase that exceeds the specific amount set in the first item if the amendment would not increase the sum of the appropriations for all the programs of the officer or agency. But, when the Budget Bill appropriates a specified salary for such a position and restricts that appropriation and all other appropriations from which funds may be transferred by budget amendment, the budget amendment statute itself prohibits a salary increase.

Thus, the budget amendment statute provides a process whereby, within certain limits, funds from otherwise unrestricted appropriations may be made available for other purposes. But by no means does the budget amendment statute limit the General Assembly's constitutional prerogative to strike out, reduce or limit items in the Budget Bill.11

As to the classified positions listed in the salary cap, to the extent that approval is in accordance with the pay plan statute, the result is the same. If the only available funds are restricted, the budget amendment statute prohibits a salary increase above the amount set in the Budget. Similarly, if approval is based on the authorization of the Department of Personnel, the Department may not authorize a salary increase absent an available appropriation.

III
The Reach Of The Salary Cap

A. The Salary Adjustments Appropriation and the Agency Appropriation

The Budget Bill typically contains at least two appropriations for salaries. First, each agency's budget contains an appropriation (under object .01—salaries and wages) sufficient to cover the agency's salary burden at the levels established in the State pay plan. Second, the Department of Personnel's budget contains a lump sum appropriation (item 26.01.07.01—Salary Adjustments) that may be transferred by the statutory budget amendment process to the various agency budgets for the cost of living adjustment ("COLA"), the ASR, and certain other costs.

As discussed in Part I A above, the General Assembly amended the FY 1989 lump sum salary adjustments appropriation proposed by the Governor. Among other things, the General Assembly inserted an executive management cap: "no funds may be expended from this appropriation to pay salaries in excess of the salaries listed below for each position classification." Chapter 10, Laws of 1988 (emphasis supplied). Because the appropriation that contains this cap is item 26.01.07.01, Salary Adjustments, a literal reading of the cap would merely prohibit the use of the $83.6 million salary adjustments appropriation to pay salaries in excess of those listed. Under this reading, if an agency had funds in its budget otherwise available for salary increases, the executive management cap would not prevent the raising of salaries in accordance with the pay plan statute and the budget amendment statute. For the following reasons, we think that such a literal reading would not be a correct interpretation of the General Assembly's intent.

In interpreting legislative acts, including the provisions of the Budget Bill, we seek to ascertain and effectuate legislative intent, the primary source of which is the language of the act itself. Boulden v. Mayor, 311 Md. 411, 414, 535 A.2d 477 (1988). This is the so-called plain meaning rule. Kaczorowski v. City of Baltimore, 309 Md. 505, 514, 525 A.2d 628 (1987). However, "the plain meaning rule does not force us to read legislative provisions in rote fashion and in isolation." Id. We are not to "examine the trees so closely that we do not see the forest." 309 Md. at 514.

What we are engaged in is the divination of legislative purpose or goal. Indeed, as we have explained, the plain-meaning rule "is not a complete, all-sufficient rule for ascertaining a legislative intention ...." The "meaning of the plainest language" is controlled by the context in which it appears. The aim or policy of the legislation, against which we measure the words used, is "not drawn ... out of the air; it is evinced in the language of the statute as read in the light of other external manifestations of that purpose." Id. (citations omitted). "[R]esults that are unreasonable, illogical or inconsistent with common sense should be avoided whenever possible with the real legislative intention indicated prevailing over the intention by the literal meaning." State v. Fabritz, 276 Md. 416, 422, 348 A.2d 275 (1975). Thus, using all relevant external materials, we examine legislative text "in the context of [its] adoption and from that perspective determine what the legislature was trying to achieve." Carolina Freight Carriers v. Keane, 311 Md. 335, 339, 534 A.2d 1337 (1988).

We find in both the Budget Bill itself and its legislative history evidence that the General Assembly's goal was to apply the salary cap not only to the salary adjustments appropriation but also to the individual agency appropriations. Section 3 of the Budget Bill contains a listing of unclassified positions and the level of compensation for each. This portion of the Budget Bill carries out a requirement set forth in SF §7-109:

So that the General Assembly may know the extent and cost of the non-classified positions that the General Assembly has created and wants to maintain outside the classified service, each budget bill shall contain a separate section that, by unit of the State government states:

(1) the job classification of each non-classified position in the unit with flat rate or per diem compensation;

(2) the number of positions in each of those job classifications; and

(3) the amount proposed for each of those job classifications.

SF §7-109, in other words, requires that each Budget Bill give a complete and accurate picture of what the unclassified positions are and how much each is paid.

Section 3 of the FY 1989 Budget Bill carries out that mandate by listing each position and an annual salary. The salary level listed in the tabulation for the positions, however, does not take into account the ASR or COLA. Instead, Section 3 provides that its listing is "subject to modifications and restrictions provided for in the annual salary review and the authorization and restrictions provided in Program 26.01.07.01-Salary Adjustments ..." (Emphasis added.) The underscored language ("and restrictions") was added to Section 3 by amendment, corresponding to the salary cap amendment to the salary adjustments appropriation. These parallel amendments, we believe, are persuasive evidence of the General Assembly's intention to apply the cap to the ordinary components of each unclassified manager's salary—that is, the portion of the salary derived from the agency's appropriation plus the portion of the salary derived from the salary adjustments appropriation.

This understanding of the legislative intent is bolstered by language in the Joint Chairmen's Report. Its explanation of the cap is that "[t]his action establishes salary levels for FY 1989 inclusive of ASR and COLA for executive positions in State government." Report of the Chairmen of the House Appropriations Committee and Senate Budget and Taxation Committee, 1988 Session, Final Action on Senate Bill 270 and Related Recommendations at 87 (April 1988). And the Joint Chairmen's explanation of Section 3 is that this "language provides for salary levels of certain positions consistent with the pay plan provided in this bill under program 26.01.07.01." Id. at 281.

Finally, the General Assembly would have accomplished no practical goal if the executive management salary cap were applicable only to the salary adjustments appropriation and not to the agency appropriations. By slowing the pace at which it fills vacancies, an agency could free up funds that could then be made available for salary adjustments. Thus, a salary cap that did not reach the agency appropriations would be less a cap than a sieve. "We should not presume that the legislative body intended to enact an ineffective ... law." Swarthmore Co. v. Kaestner, 258 Md. 517, 527, 266 A.2d 341 (1970).

For these reasons, we conclude that the General Assembly intended to cap both the salary adjustments appropriation and the individual agency appropriations.

B. The General Emergency Fund

The Maryland Constitution expressly recognizes the authority of the General Assembly to place "a contingency fund at the disposal of the Executive, who shall report to the General Assembly, at each Session, the amount expended, and the purposes to which it was applied." Article III, §32. Pursuant to that authority, the General Assembly traditionally has made a General Emergency Fund available to the Board of Public Works through an appropriation in the Budget Bill. The FY 1989 Budget Bill includes a $2 million General Emergency Fund appropriation. As usual, the Budget Bill contains a general statement of the purposes for which the fund may be used:

To the Board of Public Works to be used by the Board in its judgment: (1) for supplementing appropriations made in the budget for Fiscal Year 1989 when the regular appropriations are insufficient for the operating expenses of the government beyond those that are contemplated at the time of the appropriation of the budget for this fiscal year, or (2) for any other contingencies that might arise within the State or other governmental agencies during the fiscal year or any other purposes provided by law, when adequate provision for such contingencies or purposes has not been made in this budget.

Chapter 10, Laws of Maryland 1988 (item 23.05.01.02).

This language contemplates the use of the fund when either of two broadly defined conditions are met: when the General Assembly has foreseen a need and appropriated funds to meet it, but unforeseen circumstances have rendered the need greater than that contemplated; or when the General Assembly simply did not make provision for a need that later must be met. The General Assembly has largely left to the judgment of the Board of Public Works the responsibility of identifying when either of these conditions are satisfied.

Use of the fund to pay for the future services of a State employee might be permissible under either of the conditions. If, for instance, a new federal law required the creation of a position not budgeted, the Board may fund the position out of the General Emergency Fund. Similarly, the Fund could be used to meet a salary obligation created by legislation enacted in the closing hours of a legislative session, after the Budget Bill had passed. 32 Opinions of the Attorney General 89 (1947). The Board may also augment a budgeted salary amount if, in the Board's judgment, that appropriation is "insufficient"—that is, if circumstances not contemplated by the General Assembly render its appropriation inadequate to the effective operation of the agency.

Indeed, the Budget Book submitted by the Governor specifically expressed the intention that the General Emergency Fund be available for supplementing salaries.12 This intention reflects prior practice. As this office once observed, "raises have been implemented in the past through the mechanism of the General Emergency Fund ...." 60 Opinions of the Attorney General 823 (1975). See 32 Opinions of the Attorney General 209 (1935).13

Of course, if the executive management salary cap were intended to restrict the General Emergency Fund as well as the salary adjustments and agency appropriations, this overall power of the Board could not be used. In our opinion, however, the cap was not intended to apply to the Fund.

As a general rule, we think it unwise and contrary to the intent underlying the constitutional and budgetary recognition of the need for a general emergency fund to construe any other provision of the Budget Bill as a restriction on the Board's broad discretion in using the fund, absent clear and unmistakable budgetary language to the contrary. There is no such language in the FY 1989 Budget Bill. Rather, we think that the General Assembly intended to prevent wholesale salary adjustments under normal circumstances but did not intend to restrict the Board's ability to deal with bona fide, extraordinary, unanticipated situations within the relatively modest limits of the General Emergency Fund appropriation.

IV
Conclusion

In summary, it is our opinion that the salary cap in the FY 1989 Budget Bill's salary adjustments appropriation is a proper exercise of the General Assembly's constitutional power to condition or limit appropriations. The restriction prohibits the use of both the salary adjustments appropriation and the appropriations to the various Executive Branch agencies to pay a salary above the cap. However, the restriction does not prohibit the Board of Public Works from paying, out of the General Emergency Fund, an amount that would bring a manager's effective income above the cap, if the Board concluded that unanticipated and exigent circumstances justify the payment.

J. Joseph Curran, Jr., Attorney General
Judson P. Garrett, Jr., Deputy Attorney General

Jack Schwartz
Chief Counsel
Opinions & Advice

1 You also asked whether the budget restriction affects bona fide promotions, reclassifications, or new positions authorized by law. Nothing in the restriction's language, context or apparent purpose suggests any such effect. Personnel actions of this kind are not limited by the restriction.

2 Former Article 64A, §27(a) read, in pertinent part, as follows: Notwithstanding anything to the contrary and solely in cases of acute emergency, amendments may be made from time to time in the pay plan to take effect at any time prior to the effective date of the next State budget, if the amendment is necessary in order to procure or to retain in the State service, essential career administrative employees, performing executive functions, or essential professional or technical employees, and upon approval of the Board of Public Works, after recommendation by the Secretary, shall have the force of law, in the same manner as if they had been originally incorporated in the schedule.

3 If the General Assembly rejects a pay plan amendment, the rejection becomes effective at the beginning of the next fiscal year.

4 However, if a budget amendment is required in order to fund a pay plan amendment, the Board must approve the budget amendment. See §7-209(d) of the State Finance and Procurement Article.

5 Article III, §35 expands this prohibition to include the increase as well as the diminution of a public officer's salary or compensation.

6 If the General Assembly desires to appropriate moneys for such items in excess of those provided by the Governor or for those not provided for in the Budget Bill, it may do so only by the passage of a supplementary appropriation bill, which must be limited to a single object or purpose and must provide the revenue necessary to pay the appropriation by a tax to be levied and paid as directed in the supplementary appropriation bill. §52(8). See generally Panitz v. Comptroller, 247 Md. 501, 509-13, 232 A.2d 891 (1967).

7 To the extent of any inconsistency between this provision and the general and item veto provisions of Article II, §17, this provision expressly prevails. See Article III, §52(14).

8 Parallel authority is vested in the President of the Senate, the Speaker of the House, and the Chief Judge of the Court of Appeals. See SF §§7-208 and 7-208.1.

9 This limitation "does not apply to the monetary figures of an appropriation." SF §7-210(b).

10 Approximately fourteen of the listed positions are classified.

11 See 46 Opinions of the Attorney General 13, 15 (1961), in which Attorney General Finan concluded that, notwithstanding the Governor's budget amendment authority, "it is entirely proper for the Legislature to attach any lawful condition or limitation to the expenditure of any appropriation as it may choose, provided such limitation or condition be directly related to the sum appropriated."

12 "This program represents the amount to be appropriated to the Board of Public Works as a contingency fund to be allocated by the Board in supplementing appropriations made in the budgets for this fiscal year where it is found that the regular appropriations are insufficient for the salaries and operating expenses of State agencies." The Maryland State Budget for the Fiscal Year Ending June 30, 1989, at 1-145 (January 20, 1988).

13 But see the 1973 Joint Chairmen's Report which objected to the inappropriate use of Section 2 of the General Emergency Fund to provide a specific salary increase. Report of the Chairmen of the Senate Finance Committee and the House Appropriations Committee on the Budget Bill (S.B. 332) and the Bond Bill (S.B. 333), (April 5, 1973), p. 9.