In Maryland, who pays for a county's child support enforcement office, the state or the county?

Plain-English summary

The Chief Judge of the Court of Appeals asked the Attorney General in 1990 who was supposed to pay for the child support enforcement operation run out of the Office of the Clerk of the Circuit Court for Montgomery County. The question mattered because a new law was about to put the Chief Judge in charge of preparing the clerks' budgets, and the clerk's office is funded by the state, while local child support programs are supposed to be funded locally.

The Attorney General concluded that Montgomery County's Child Support Enforcement Division was a "local support enforcement office" under state law, and specifically a component of the Circuit Court, not a separate state-funded arm of the clerk's office. Because of that, the county carried the budget for the program, drawing on its own money plus federal reimbursement, and the state's appropriation to the clerk could not be used to pay for the local program. The one exception was clerk's-office employees doing purely clerical work tied to the program, whose costs could stay on the clerk's budget. The opinion reached this conclusion both from the structure of the child support statutes and from the county's own paperwork, which for years had treated the program as part of the Circuit Court.

Currency note

This opinion was issued in 1990. 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.

The opinion interpreted the federal Title IV-D provisions of the Social Security Act and Maryland's child support enforcement statutes in Title 10 of the Family Law Article as they stood in 1990, along with a then-pending 1990 law (Chapter 515) that shifted preparation of the clerks' budgets to the Chief Judge starting in fiscal year 1992. Section numbers, funding percentages, and the organization of Maryland's child support program have changed since; confirm the current statutes before relying on any specific figure or section cited here.

Common questions

Who pays for a local child support enforcement office in Maryland, the state or the county?
When a county runs its own local support enforcement office, this 1990 opinion concluded the county carried the budget, drawing on local funds plus federal reimbursement, rather than the state. The opinion read Family Law §10-116(a)(1) to say a local office "shall be funded from local and federal resources," and it traced that rule back to the 1978 reorganization of Maryland's child support system.

Could a clerk of court's state-funded budget be used to run a county child support program?
No, with a narrow carve-out. Because the clerk's office is funded through the state budget under Article IV, §10(b) of the Constitution, and a local support enforcement office had to be locally funded, the opinion concluded state money appropriated to the clerk could not pay for the local program. The exception was clerk's-office personnel doing purely clerical work, whose costs could stay on the clerk's budget.

Why did it matter whether the office was a "component of the circuit court" or a separate clerk's office?
It came down to the funding source. A local support enforcement office, whether structured as a county agency or as a component of the circuit court, was a county budget responsibility. A clerk's office, by contrast, was state-funded. The opinion found the statute never made a clerk's office a separate vehicle for running a local program, so classifying Montgomery County's program as a component of the Circuit Court put the funding on the county.

How did the opinion decide Montgomery County's program was really part of the circuit court?
It walked through the program's own paperwork. The county's consolidated 1981 program filed its reimbursement applications on behalf of the "Montgomery County Circuit Court," the administrative judge included the program in his budget submissions to the county, and the county itself, in the Paul v. Smith litigation, argued that a program hearing officer was a Circuit Court employee. From that record the opinion concluded the program had been a component of the Circuit Court since its 1981 consolidation.

Background and statutory framework

Child support enforcement in Maryland ran on a mix of federal and state law. Under Title IV-D of the Social Security Act, the federal government generally paid 66 percent of a state program's operational costs (42 U.S.C. §655(a)) and paid additional incentive payments to reward effective programs (42 U.S.C. §658(a)). To get that money, a state had to run an HHS-approved plan that was in effect in all political subdivisions (42 U.S.C. §654(1)) and administered through a single, separate organizational unit (42 U.S.C. §654(3)). Federal law expressly allowed states to enter cooperative arrangements with local courts and officials (42 U.S.C. §654(7)) and to pass through a share of incentive payments to participating subdivisions (42 U.S.C. §654(22)), but otherwise left the placement of enforcement responsibilities to each state, as the opinion noted by citing Jenkins v. Massinga.

On the Maryland side, the opinion traced the program's history. A 1977 Department of Human Resources report found child support collection "disjointed and uncoordinated," with the Division of Parole and Probation handling collections in 16 of 24 jurisdictions and local units handling them in the other eight, including Montgomery County. In response, Chapter 885 of the Laws of Maryland 1978 created a Bureau of Support Enforcement in DHR and let locally-based programs continue so long as no state funds were involved (former Article 88A, §59(b)(5)). The 1984 recodification into the Family Law Article kept the substance the same. Under current law, CSEA was the single required administrative entity, but a county could still run its own "local support enforcement office," defined at FL §10-101(e) as either a county agency or a component of the circuit court. A county was not locked in: FL §10-117 let it ask DHR to transfer that responsibility to the state, with any affected staff becoming state classified employees.

The funding rule flowed from that structure. Whether the local office was a county agency under FL §10-101(e)(1) or a component of the circuit court under FL §10-101(e)(2), the budget fell on the county, which also handled the circuit court's budget under Article 24, §8-101(5). The statute directed that a local office "shall be funded from local and federal resources," FL §10-116(a)(1), with no state funds. The clerk's office, by contrast, was funded through the state budget under Article IV, §10(b) of the Constitution. Because the two had different funding sources, state money appropriated to the clerk could not underwrite the local program. Applying all of this to the facts, the opinion found that Montgomery County had treated the program as a Circuit Court component since its 1981 consolidation and had never asked to transfer it to the state, so the program remained the county's budgetary responsibility.

Citations and references

Statutes and constitutional provisions:

• 42 U.S.C. §655(a), §658(a), §652(a)(3), §654(1), §654(3), §654(7), and §654(22), the federal Title IV-D funding and plan-approval provisions
• 45 C.F.R. §305.12(a), a federal staffing/organization regulation
• §§10-106 and 10-108 of the Family Law Article, establishing CSEA as the single child support administrative entity
• FL §10-108(b), CSEA's enforcement responsibility except in counties with a local support enforcement office
• FL §10-101(e), defining "local support enforcement office" as a county agency or a component of the circuit court
• FL §10-116(a)(1), requiring a local office to be funded from local and federal resources
• FL §10-117, the county's option to transfer support-enforcement responsibility to CSEA
• FL §10-111(a), authorizing CSEA cooperative agreements
• Former Article 88A, §59(b)(5), (b)(5)(i), and (b)(5)(iii), the 1978 predecessor provisions on local programs, funding, and transfer requests
• Article 24, §8-101(5), county budget responsibility
• Article IV, §10(b) of the Constitution, funding the clerk of the circuit court through the state budget
• Chapter 885 of the Laws of Maryland 1978, the reorganization law, and Chapter 515 (Senate Bill 841) of the Laws of Maryland 1990, shifting the clerks' budget preparation to the Chief Judge

Cases:

• Jenkins v. Massinga, 592 F. Supp. 480, 483 (D. Md. 1984), on the federal framework permitting local participation in child support enforcement
• Paul v. Smith, Civil Action No. H-83-3879 (D. Md.), the 1983 suit whose record the opinion drew on to show the program was treated as part of the Circuit Court

The opinion also cited two prior Attorney General opinions, 72 Opinions of the Attorney General 334, 339 n.5 (1987) and 58 Opinions of the Attorney General 201 (1973).

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/1990/Volume75_1990.pdf (this opinion appears at printed pages 81-89 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

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

CHILD SUPPORT

Clerks of Court — Montgomery County's Child Support Enforcement Office is a Component of the Circuit Court, for Which the County Has Budgetary Responsibility

August 29, 1990

The Honorable Robert C. Murphy
Chief Judge of the Court of Appeals

 You have requested our opinion concerning the status under State law of the Child Support Enforcement Division of the Office of the Clerk of the Circuit Court for Montgomery County. In particular, you ask whether State law contemplates that the budgetary responsibility for child support enforcement activities is to be that of the clerk.1

 For the reasons stated below, we conclude as follows: The Child Support Enforcement Division in Montgomery County is a "local support enforcement office" as defined by State law. Specifically, it is a component of the Circuit Court for Montgomery County. Therefore, the Division is to be funded by Montgomery County, which would in turn receive federal revenues in reimbursement. Except for personnel in the clerk's office performing clerical functions, the Division should not be funded by the State through the clerk's budget.2

I

Federal Law

 The federal government, through the Department of Health and Human Services ("HHS"), generally pays 66 percent of the operational costs of a state's child support enforcement program. 42 U.S.C. §655(a). In addition, "[i]n order to encourage and reward State child support enforcement programs which perform in a cost-effective and efficient manner to secure support for all children who have sought assistance in securing support, ... the Secretary [of HHS] shall ... pay to each State for each fiscal year ... an incentive payment ...." 42 U.S.C. §658(a).

 Under this federal program, Title IV-D of the Social Security Act, a state must have its child support enforcement plan approved by the Secretary of HHS. 42 U.S.C. §652(a)(3). Among other requirements, a state plan must "be in effect in all political subdivisions of the State." 42 U.S.C. §654(1). The plan must also "provide for the establishment or designation of a single and separate organizational unit, which meets such staffing and organizational requirements as the Secretary may by regulation prescribe, within the state to administer the plan." 42 U.S.C. §654(3). See also 45 C.F.R. §305.12(a).

 Federal law also recognizes that the political subdivisions of a state might have program responsibilities, for it authorizes a state to "enter into written agreements for cooperative arrangements with local courts and law enforcement officials to assist the state IV-D agency in carrying out the child support enforcement program." Jenkins v. Massinga, 592 F. Supp. 480, 483 (D. Md. 1984). See 42 U.S.C. §654(7). Moreover, "if one or more political subdivisions of the state participate in the costs of carrying out activities under the state plan during any period, each such subdivision shall be entitled to receive an appropriate share (as determined by the state) of any such incentive payments made to the state for such period, taking into account the efficiency and effectiveness of the activities carried out under the state plan by such political subdivision." 42 U.S.C. §654(22). Federal law otherwise leaves to each state the responsibility for the exact placement of enforcement responsibilities within its own framework of state and local government, provided that the state ensures uniform administration of its plan. See Jenkins v. Massinga, 592 F. Supp. at 489.

II

Maryland Law

A. Organizational Structure For Child Support Enforcement

 1. Legislative history

 In the mid-1970s, child support collection efforts in Maryland were "disjointed and uncoordinated." Department of Human Resources ("DHR"), Report to the House Appropriations Committee of the Maryland General Assembly on Domestic Collections in Maryland at 2 (December 20, 1977) ("DHR Report"). In 16 of Maryland's 24 jurisdictions, the Division of Parole and Probation had responsibility for domestic collections. In eight jurisdictions — including Montgomery County — collection activities were carried out by "[l]ocal units" under "local operation ...." DHR Report at 5.

 The DHR Report urged the enactment of legislation transferring collection responsibilities from the Division of Parole and Probation to DHR. Although the proposed transfer "will not eliminate all fragmentation in the existing system," the report said, "[i]t will, however, in sixteen Maryland jurisdictions locate in a single administrative structure the [support collection] functions ...." DHR Report at 3. The report continued: "In the other eight jurisdictions this administrative organization of the system will not be achievable. However, DHR can continue to work cooperatively with local agencies by contract in these jurisdictions and will be able by regulation to promulgate the standards for the operation of system elements of those local agencies." Id. The report specifically described the budgetary implications of a county's maintaining a local agency: "[U]nder the proposed legislation a local government may have Domestic Collections services provided by a local agency if the nonfederal share of operating the services consists of local, not State, funds." DHR Report at 7 (emphasis added).

 In Chapter 885 of the Laws of Maryland 1978, the General Assembly enacted the legislation described in the DHR Report. This law created a Bureau of Support Enforcement in DHR's Social Services Administration, with responsibility to "implement or coordinate" child support enforcement efforts throughout the State. Former Article 88A, §59(a) and (b).

 The statute authorized the continuation of locally-based programs, so long as no State funds were involved:

      When the responsibility for collection and/or support enforcement is exercised by a local agency or circuit court:

          (A) The funds necessary to finance collection and/or support enforcement shall be derived from local and, to the extent available, federal resources.

          (C) The Bureau shall pay to subdivisions exercising support enforcement responsibilities the maximum collection incentives to which the subdivision may be entitled pursuant to federal law.

Former Article 88A, §59(b)(5)(iii). The Bureau was made responsible for support enforcement statewide "except in those subdivisions where an agency of or the circuit court for the subdivision has responsibility for support enforcement." Former Article 88A, §59(b)(5).

 If "[a]ny subdivision or circuit court having responsibility for collection and/or support enforcement" sought to give up that responsibility, it could do so by requesting "that [the] responsibility be transferred to the Bureau of Support Enforcement. Such requests must be made to the Department of Human Resources no later than September 1 of the year preceding the fiscal year in which the responsibility is to be assumed by the Bureau." Former Article 88A, §59(b)(5)(i).

 2. Current law

 The 1984 recodification of these provisions into the Family Law Article did not change their substance. DHR's Child Support Enforcement Administration ("CSEA") is now the single child support administrative entity required by federal law. See §§10-106 and 10-108 of the Family Law Article ("FL" Article). It develops Maryland's plan for complying with the requirements of Title IV-D and in many counties is responsible for carrying it out.

 Some counties, however, continue to conduct support enforcement activities under the State plan through a "local support enforcement office." Under FL §10-108(b), CSEA has responsibility for support enforcement for obligations under certain court orders "[e]xcept in a county that has a local support enforcement office."

 A county is not required to maintain a local office. Under FL §10-117, "[a] county or circuit court with a local support enforcement office may request that the responsibility for support enforcement be transferred to [CSEA]." Such a request is to be made to DHR "by September 1 of the year preceding the fiscal year for which responsibility will be transferred," and "[a]ny personnel of the local support enforcement office involved in a transfer ... shall become classified employees of [the] State ...."

 The statute contains the following definition of "local support enforcement office":

      "Local support enforcement office" means 1 of the following that is responsible for support enforcement:

          (1) a county agency; or

          (2) a component of the circuit court for a county.

FL §10-101(e). According to the Revisor's Note, FL §10-101(e) "is new language added to avoid needless repetition of phrases such as 'subdivision or circuit court having responsibility for collection and/or support enforcement'."

 Neither this provision nor any language in the predecessor statute envisions a clerk of the circuit court as separately responsible for local child support enforcement activities. Insofar as personnel in a clerk's office help conduct a support enforcement program housed within the circuit court, the clerk's office may be viewed as a "component of the circuit court." Cf. 72 Opinions of the Attorney General 334, 339 n.5 (1987). Nevertheless, the statute simply does not provide that a clerk's office may be a separate instrumentality for the conduct of a local program. As we explain in Part IIB below, the difference is important because of the different source of funding of the two entities.

B. Budgetary Responsibility

 If a "local support enforcement office" is "a county agency," FL §10-101(e)(1), the county would budget for the office as for any other county agency. If the "local support enforcement office" is "a component of the circuit court" for that county, FL §10-101(e)(2), budgetary responsibility would likewise fall on the county. See Article 24, §8-101(5). See also 58 Opinions of the Attorney General 201 (1973). As both the language and legislative history of the child support enforcement statute make clear, no State funds are to be provided for a local office. Instead, a local support enforcement office "shall be funded from local and federal resources." FL §10-116(a)(1).

 The office of a clerk of the circuit court is "funded through the State budget." Article IV, §10(b) of the Constitution.3 Because a local support enforcement office is to be locally funded, State funds appropriated to a clerk's office may not be used to fund a local program.

 To be sure, if personnel in a clerk's office are needed to handle the purely clerical consequences of a local support enforcement office's program, we see no reason why those personnel and related costs may not be borne by the clerk's budget. But the local program costs - that is, the cost of activities like conducting settlement negotiations, collecting payments, and enforcing court orders - must be paid by the county, through its budgetary responsibility for its own agencies or for the circuit court.

III

Status of Montgomery County Program

 As noted in Part IIA above, Montgomery County had a local support enforcement program when the reorganization of the State program occurred in 1978. We understand that the County Attorney's Office, the State's Attorney's Office, and the Family Support Unit within the Office of the Clerk of the Circuit Court all had cooperative reimbursement agreements with the State from the mid-1970's. Memorandum to Harriet A. Herrman, Director of the Montgomery County Department of Social Services, from Bill Clarke at 2 (Sep. 30, 1980).4 Prior to July 1, 1981, the Family Services Unit within the Clerk's Office consisted of several employees who prepared dockets, controlled child support files, and otherwise performed clerical functions. Deposition of Frederick M. Russillo, former Program Administrator of the Family Services Division, at 40, Paul v. Smith, Civil Action No. H-83-3879 (D. Md.).5

 In 1981, the Montgomery County program was consolidated, and the consolidated program then entered a series of cooperative reimbursement agreements with DHR. The cover sheet for each of the program's application for reimbursement stated that it was filed on behalf of the "Montgomery County Circuit Court."6 The narrative that was part of the consolidated program's first application for reimbursement stated as follows:

      With the withdrawal of the Office of the State's Attorney for Montgomery County from the IV-D Program, the Office of the Clerk of the Circuit Court will, with the support and cooperation of the State's Attorney for Montgomery County, continue attorney support services within the courts [sic] Family Services Division. To serve this end, a "Legal Services Unit" will be formed consisting of a duly appointed and program-assigned State's Attorney and support staff. This unit will perform all primary and secondary duties required in the preparation and presentment of the Family Services Division caseload before the court. It will also provide review, counsel and guidance to the division as a whole, as required.

Application for Fiscal Year 1982 at 3-4.

 Correspondingly, the Administrative Judge for the Circuit Court for Montgomery County included the program in his budget submissions to the county:

      The Family Services Division of the Circuit Court, bolstered with matching federal funding under Title IV-D of the Social Security Act of 1975, has begun an ambitious program of child support enforcement services. Through the amalgamation of prosecutorial and intake services formerly offered by the Office of the State's Attorney, the program now provides intake, account maintenance, location, prosecution and enforcement functions for all court ordered child support obligations. The benefits of this program accrue to the county as well to its citizens through the payment of incentive monies to the former based upon the recapture of expended social services tax dollars from obligated payors ....

Budget Narrative in Circuit Court Budget Submission for Fiscal Year 1983.

 Finally, Montgomery County itself, in its defense in Paul v. Smith, asserted that the plaintiff, a hearing officer with the program, was an employee of the Circuit Court. Memorandum of Law in Support of Motion for Summary Judgment at 1, 2, and 4.

 In sum, we have no doubt that the Montgomery County program, from its consolidation in 1981, was a component of the Circuit Court for Montgomery County. Nor are we aware of any evidence that Montgomery County exercised its prerogative under FL §10-117 to request that its local support enforcement office be transferred to the State. Indeed, the continued series of reimbursement agreements suggests no significant change in the program since its 1981 consolidation.7

 Therefore, Montgomery County's child support enforcement program is subject to the provisions of law governing the budget of the Circuit Court. Except for personnel in the clerk's office who would perform clerical functions in support of the program no matter where it was housed organizationally, the budget of the Clerk of the Circuit Court for Montgomery County should not be charged with the costs of the program.

IV

Conclusion

 In summary, it is our opinion that when a county has chosen to conduct a local child support enforcement program, as Montgomery County has, the personnel carrying out that program are the budgetary responsibility of the county.

                                           J. Joseph Curran, Jr.
                                           Attorney General

                                           Jack Schwartz
                                           Chief Counsel
                                             Opinions & Advice

1
This question is of immediate importance because the Chief Judge of the Court of Appeals is now responsible for submitting the budgets for the clerks. See note 3 below.

2
Thus, we agree with the conclusion reached by Assistant Attorney General Julia M. Freit in an advice letter of April 9, 1990 to the Clerk of the Circuit Court for Montgomery County.

3
Under Chapter 515 (Senate Bill 841) of the Laws of Maryland 1990, the Chief Judge of the Court of Appeals is to submit the budget of the clerk of each circuit court as part of the Judicial Branch's annual budget submission. Although this legislation is generally contingent upon ratification of a constitutional amendment that would eliminate the "visitorial power" of the circuit court over the clerks and instead make clerks subject to rules adopted by the Court of Appeals, the Chief Judge in any event is to prepare the clerks' budgets for fiscal year 1992.

4
The memorandum generally described such agreements as follows: "Many localities had or were developing Cooperative Reimbursement Agreements (hereafter referred to CRA's) with local law enforcement offices and/or local collection agencies. These CRA's allowed additional money to be paid to the service provider to perform the required actions, whether legal functions or collection functions. These monies were paid on a 25/75 split with ... every local dollar [matched] with three (3) federal dollars." Clark Memorandum at 1.

5
This deposition was taken in connection with a 1983 suit filed by a former employee of the Family Services Division against the late Howard M. Smith, longtime Clerk of the Circuit Court for Montgomery County; Judge David L. Cahoon, then Administrative Judge of the Circuit Court; and Montgomery County. The case was settled in 1985 before trial.

6
These documents were signed by Howard Smith as Program Director. At the time, Mr. Smith was both Clerk of the Circuit Court and Court Administrator. See Order of the Circuit Court for Montgomery County (November 30, 1978) (delegating "the execution of the functions of Court Administrator to the Clerk of the Court ....").

7
The Montgomery County Attorney's Office has expressed its view that the most recent agreements between the Clerk of the Circuit Court for Montgomery County and CSEA reflect "cooperative agreements" under FL §10-111(a) not involving the county. This provision authorizes CSEA to "make a cooperative agreement with a public or private agency, a circuit court, or a law enforcement official ...." The agreements, however, are between CSEA and "Montgomery County, a body corporate and politic, acting through the Clerk of the Court ...." Thus, the agreements are best understood as continued renewals of the original agreement between CSEA and the entity that Montgomery County intended to be its local support enforcement office, under which CSEA passes through the proportionate share of federal funds that it receives.