Can Maryland's Governor require legislators to sign letters of support before the Board of Public Works or a state agency approves capital project funding?

Plain-English summary

The President of the Senate and the Speaker of the House asked the Attorney General about a policy under which the Governor would not approve state grants or loans for capital projects without written evidence that the local legislative delegation supported the project. The Department of General Services had been leaving items off the Board of Public Works agenda when legislators had not signed support letters, and some Executive Branch agencies with their own grant and loan authority were doing the same. The legislative leaders asked whether any law required such letters, whether the Governor or an agency had authority to require them, whether the Governor could unilaterally keep items off the agenda or force agencies to deny funding solely for lack of a letter, and what liability the state might face for delaying or denying a project on that basis alone.

The opinion concluded that no statute required legislators to provide letters of support, and none conditioned funding on such evidence. It found nothing unlawful, however, about the Governor or another Board member wanting that information and factoring it into a discretionary funding decision, since legislators' willingness (or unwillingness) to publicly support a project could reasonably signal whether anything had changed since the General Assembly originally authorized it. The key limit was flexibility: the Board of Public Works, which by statute and Truitt v. Board of Public Works must exercise real discretion rather than act arbitrarily, could not adopt an inflexible rule always requiring a letter as a precondition to approval, because that would improperly cede the Board's own decisionmaking discretion and could effectively hand a veto to individual legislators. Longstanding Board courtesy already let a single member defer action pending more information, including a support letter, but two members acting together could bring an item to a vote regardless. For Executive Branch agencies, the answer depended on each agency's own statute: an agency with genuine discretion over funding priorities could consider legislators' support the same way the Board could, but if it wanted to require evidence of that support as a formal precondition, it would first need to adopt that requirement as a regulation under the Administrative Procedure Act, something no agency had done at the time of the opinion. Finally, on liability, the opinion explained that mandamus generally does not lie to control an agency's exercise of discretion, but could be available if the Board or an agency adopted so rigid a policy that it amounted to an arbitrary abuse of discretion or exceeded statutory authority.

Currency note

This opinion was issued in 1991. 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 the current text of the State Finance and Procurement Article, the State Government Article, and any Board of Public Works procedures before relying on any specific rule described here.

Common questions

Did Maryland law require legislators to sign letters supporting a capital project before it could get state funding? No. The opinion found no statute imposing any duty on legislators to write letters of support or sign approval forms, and no statute conditioning state financial assistance on such evidence.

Could the Governor lawfully ask for legislators' support letters before funding a project? The opinion concluded that simply wanting and considering that information was not unlawful, since it could reasonably bear on whether circumstances had changed since the General Assembly authorized the project. The problem would arise only if the requirement became an inflexible, automatic bar to approval.

Could one Board of Public Works member block a project by insisting on a support letter? No. The opinion explained that under longstanding Board practice a single member could ask that action be deferred pending more information, but if the other two members were ready to approve the item, the third member had no legal authority to prevent that action.

Could a state agency require applicants to submit legislators' support letters as a condition of funding? Only if the agency's own statute gave it that kind of discretion, and even then only after the agency adopted the requirement as a formal regulation under the Administrative Procedure Act; the opinion noted that as of 1991 no agency had done so, so any informal insistence on such letters was not yet a legally binding requirement.

What could happen if an agency denied funding solely because a legislator hadn't signed a support letter? The opinion said a court could potentially order the funding request considered through a writ of mandamus if the denial reflected an arbitrary, inflexible policy or exceeded the agency's statutory authority, though mandamus generally does not second-guess a genuine exercise of discretion.

Background and statutory framework

The Maryland Constitution's Board of Public Works provisions (Article XII, §§1 and 2) largely defer to the General Assembly's power to define the Board's duties, and the Board's central funding role arises from the General Assembly's annual capital "loan acts" passed under Article III, §52(8), which authorize general obligation bonds for state and local capital projects. Under §8-117(c) of the State Finance and Procurement Article, the Board authorizes the state debt for these projects, and under SF §8-301, contracts to spend loan-act proceeds cannot be executed until the Board approves them. The opinion traced this authority to a prior 1977 Attorney General opinion (62 Opinions of the Attorney General 716) describing the Board's broad but not unlimited discretion to allocate funds among competing applicants, discretion the Court of Appeals held in Truitt v. Board of Public Works could not be exercised arbitrarily.

For Executive Branch agencies with independent grant or loan authority, such as the Community Development Administration within the Department of Housing and Community Development, the governing question in each case was the scope of discretion the agency's own authorizing statute provided. An agency requirement that applicants submit written evidence of legislators' support, with deferral for applications lacking it, would qualify as a "regulation" under §10-101(e) of the State Government Article, meaning it needed proper adoption under the Administrative Procedure Act to be legally effective; the opinion found no agency had completed that process as of 1991.

Citations and references

Statutes:

• Article XII, §§1 and 2 of the Maryland Constitution, defining the Board of Public Works' duties and quorum rule
• Article III, §34, on Board of Public Works authority to direct the sale of tax or bond anticipation notes
• Article III, §52(8), the constitutional basis for the General Assembly's "loan acts" authorizing general obligation bonds
• §8-117(c) of the State Finance and Procurement Article, requiring Board resolution to authorize and issue general obligation bonds
• §8-122 of the State Finance and Procurement Article, authorizing the Board to issue bonds for multiple loan acts on a consolidated basis
• SF §8-301, requiring Board approval before a contract to spend loan proceeds may be executed
• SF §8-112(b), requiring the Capital Debt Affordability Committee's annual debt estimate
• SF §8-112(d)(2), describing that estimate as advisory
• SF §12-107, listing agencies administering loan acts for state-owned capital improvements
• SF §§4-207 and 4-208, limiting the Department of General Services' role to functions requested of it by the Board
• Article II, §1 of the Constitution, vesting executive power in the Governor
• Article 41, §1-201 of the Maryland Code, on cabinet secretaries serving at the Governor's pleasure
• §3-302 of the State Government Article, same
• §10-101(e) of the State Government Article, defining "regulation" for Administrative Procedure Act purposes

Cases:

• Truitt v. Board of Public Works, 243 Md. 375, 221 A.2d 370 (1966), holding the Board's discretion over certain loans cannot be exercised arbitrarily or unreasonably
• Harris v. Eichbaum, 642 F. Supp. 1056, 1068 (D. Md. 1986), on an agency's authority to deny a permit based on problems raised by legislators and citizens
• Condor Corp. v. City of St. Paul, 912 F.2d 215, 223 n.15 (8th Cir. 1990), rejecting reliance on neighborhood sentiment as the sole basis for a permit decision
• Northwest College v. City of Arden Hills, 281 N.W.2d 865, 869 (Minn. 1979), same
• Circus Disco v. New York State Liquor Auth., 51 N.Y.2d 24, 409 N.E.2d 963 (1980), on an agency's consideration of public or legislative reaction in licensing decisions
• Anderson v. Grand River Dam Auth., 446 P.2d 814, 817-18 (Okla. 1968), voiding a delegated permit requirement conditioned on adjacent landowners' written consent
• Chaffin v. Arkansas Game and Fish Comm'n, 296 Ark. 431, 757 S.W.2d 950, 956-57 (1988), on the questionable validity of legislative committee approval requirements over appropriations
• Annapolis v. Annapolis Waterfront Co., 284 Md. 383, 394, 396 A.2d 1080 (1979), holding executive agencies derive all authority from the legislative branch
• Freeman v. Local 1802, 318 Md. 684, 692, 569 A.2d 1244 (1990), on mandamus not lying to control the exercise of discretion
• Criminal Injuries Comp. Bd. v. Gould, 273 Md. 486, 514, 331 A.2d 55 (1975), same
• Maryland Pavement Co. v. Mahool, 110 Md. 397, 408-09, 72 A. 833 (1909), holding mandamus does not lie to control discretion in awarding a public works contract
• Tyler v. Baltimore County, 251 Md. 420, 433, 247 A.2d 704 (1968), holding mandamus will lie to remedy an arbitrary abuse of discretion
• Heghinian v. Ford, 209 Md. 113, 120 A.2d 339 (1956), cited on standing to seek mandamus

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/1991/Volume76_1991.pdf (this opinion appears at printed pages 46-58 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.

BOARD OF PUBLIC WORKS

Governor - Administrative Law - Legality of Policy Requiring Statement of Legislators' Support Prior To Approval of State Aid to Capital Projects

August 9, 1991

The Honorable Thomas V. Mike Miller
President of the Senate

The Honorable R. Clayton Mitchell, Jr.
Speaker of the House

You have requested our opinion on various issues related to the Governor's practice of calling for presentation of written evidence that members of a legislative delegation support a capital project prior to approval of the project's funding by the Board of Public Works or an Executive Branch agency.1 Specifically, you have posed the following questions:

1. Is there any legal mandate that imposes a duty on legislators to write letters of support or sign project approval forms for such projects?

2. Does any statute require legislator letters of support or a legislator sign-off as a condition of approval for grants or loans from executive agencies or as a condition for items being placed on the Board of Public Works agenda or approved by the Board?

3. Does the Governor have the authority under his powers or the powers of an executive agency to require such letters or sign-off as a condition of grants, loans, or Board of Public Works approval?

4. Can the Governor unilaterally hold items off of the Board of Public Works agenda or have executive agencies deny grants, loans, or other State assistance solely because of the failure of a legislator to sign a letter of support or project approval form?

5. What liability might the State face for continued delay in project approval or for project disapproval premised solely on the absence of a legislator's letter of support or sign off?

Our responses to these questions are as follows:

1. No legal mandate requires legislators to write letters of support or sign project approval forms for State-aided projects.

2. No statute requires evidence of legislators' support as a condition of State financial assistance of any kind.

3. Regarding the Board of Public Works: The members of the Board may take account of a wide variety of information when considering whether to exercise the discretion given them by law, including evidence that the legislators who represent the district in which the project will be built support it. However, no single member of the Board may prevent Board approval of a project even without evidence of legislators' support, if the other two Board members are prepared to vote in favor.

Regarding Executive Branch agencies: If a statute gives an agency broad discretion over project funding decisions, the agency generally may take account of current support for a project from the appropriate legislative delegation when it is deciding on funding priorities. But an agency may not require applicants to present evidence of delegation support as a prerequisite to consideration of funding requests unless the agency includes that requirement in a regulation properly adopted under the Administrative Procedure Act.

4. Regarding the Board of Public Works: Under longstanding Board practice, a member generally is granted the courtesy of deferring action on an item if the member believes that insufficient information concerning the item has been presented. If a member regards evidence of current support for the project from the appropriate legislative delegation to be important, the member may request that action be deferred until that evidence is available, and the other members are legally free to allow the deferral. On the other hand, if two members of the Board are ready to act on an item, the third member does not have the legal authority to prevent that action.

Regarding Executive Branch agencies: If an agency has discretion under its statute to consider legislators' support when ranking the priority of funding requests, and if the agency has properly adopted a regulation informing applicants that they are expected to provide evidence of legislators' support, the agency may defer action on a funding request presented without such evidence.

5. If a court were to conclude that the Board of Public Works or Executive Branch agency acted outside of its authority by declining to consider funding without evidence of legislators' support, the court might issue a writ of mandamus commanding that the funding request be considered notwithstanding the absence of such evidence.

I

Background

Your letter requesting our opinion describes the Governor's policy that a State grant or loan for a project will not be approved without direct written evidence of the appropriate legislative delegation's support. The Governor's policy is not derived from any statute; indeed, we are aware of no statute relevant to State grants or loans that imposes a prerequisite of legislators' support.

In furtherance of the Governor's policy, the Department of General Services, which is largely responsible for preparing the Board's agenda for consideration of capital construction items, apparently has excluded items from the agenda solely because legislators from the district in which the projects are to be built have not signed documents indicating their support for the projects. Moreover, Executive Branch agencies that have statutory authority to make grants or loans without Board review, for example, the Community Development Administration of the Department of Housing and Community Development, likewise are requesting written manifestation of delegation support before acting on certain grant or loan applications.2

We have not seen a public document explaining the reasons underlying the Governor's policy. Press accounts have suggested that the Governor seeks to make the point that when competition for limited State resources is ardent and anti-tax sentiment is widespread, those who represent the beneficiaries of State financial assistance ought to be publicly accountable for their role in supporting State spending.

Such considerations aside, information about delegation support might well be valuable to a decisionmaker. The willingness of delegation members to commit themselves publicly to support of a project implies that nothing has changed since the General Assembly's decision to authorize funding, that new discontent with the project in the area affected has not emerged. Also, evidence of delegation support could help set spending priorities at a time of decreasing resources and severe fiscal constraints. If the government needs to be especially frugal, those responsible for spending decisions might well wonder why they should fund a project that does not enjoy the current support of the legislators presumably knowledgeable about the need for the project.

II

Board of Public Works

A. Decisionmaking Authority

Except for imposing some anachronistic duties relating to canal and railroad companies, the constitutional provisions relating to the Board of Public Works simply defer to the General Assembly's power to legislate: The Board is to "hear and determine such matters [relating to public works] as the General Assembly may confer upon them the power to decide" and "shall perform such other duties as may be hereafter prescribed by Law ...." Article XII, §§1 and 2 of the Maryland Constitution. See also Article III, §34 ("the General Assembly may authorize the Board of Public Works to direct" the sale of tax or bond anticipation notes).3

The majority of projects affected by the Governor's requirement are those authorized by the General Assembly each year in supplementary appropriation bills, which are general obligation loan enabling acts ("loan acts") enacted pursuant to Article III, §52(8) of the Constitution. Because these loan acts are limited by §52(8) to a "single work, object or purpose," in any given year hundreds of bills are introduced to approve capital projects for general obligation bond funding; a significant number of them become law.4

These loan acts are the basis for the State's issuance of its general obligation bonds. General obligation bonds are authorized and issued primarily to provide funds for State-owned capital improvements, including institutions of higher education; for capital grants and loans to fund construction of local government improvements, including water quality improvement projects and correctional facilities; and for repayable loans or outright grants to private, nonprofit cultural or educational institutions.

Once the General Assembly authorizes a loan for a particular object or purpose, the Board of Public Works plays two roles in the subsequent process: The Board initially authorizes the creation of State general obligation debt to fund the various projects specified by the loan acts; later, it approves various aspects of the individual projects.

All loan acts are for the purpose of "authorizing the creation of a State debt ..."; all provide that "[t]he Board of Public Works may borrow money and incur indebtedness on behalf of the State ..."; and all provide that the loan is to be "evidenced by the issuance, sale, and delivery of State general obligation bonds authorized by a resolution of the Board." §8-117(c) of the State Finance and Procurement Article ("SF" Article) (emphasis added). See Department of Legislative Reference, Legislative Drafting Manual 1991, at 38 (the format in SF §8-117(c) "should be followed word for word").

In addition to the requirement for Board authorization of general obligation bond sales, capital programs to be funded by bond proceeds also must be approved by the Board, including grants and contracts for those projects. SF §8-301 directs that "a contract to spend the proceeds of a general obligation loan that has been authorized by any act of the General Assembly may not be executed until the Board of Public Works approves the contract."

Taken together, these statutes reflect "a new type of discretion thrown upon the board by the legislature, that of allocating state funds among competing nonstate applicants, public or private." Wilner, The Maryland Board of Public Works: A History 110 (1984). Cf. 62 Opinions of the Attorney General 716, 733 (1977) (describing Board's supervisory power over State construction).

To be sure, the Board's discretion is not limitless. In Truitt v.
Board of Public Works, 243 Md. 375, 221 A.2d 370 (1966), the Court of Appeals found implicit in a statute authorizing Board review of certain hospital loans the condition that the Board's decisions "cannot be arbitrary or unreasonable ...." 243 Md. at 391. So long as the Board decides the matters before it by attending to the public policy goals of the statute that grants it decisionmaking authority, however, its decisions would not be arbitrary. 243 Md. at 391-92.

The statutes granting the Board discretion over the allocation of funds to support project grants have two basic purposes, as we see them, to ensure that, when the actual funding decision is to be made, a project is in fact what the General Assembly envisioned when it passed the loan act; and to protect the State against the adverse effects of excess borrowing, if conditions have changed since the General Assembly acted.

The most straightforward function of the Board is to ensure that each project coming before it conforms to its description in the loan act and that its sponsor will provide any necessary matching funds. Beyond these minimal requirements, the Board also may take into account whether any aspect of a project raises a problem that was not considered by the General Assembly but that, if serious enough, might have caused a different legislative result. Suppose, for example, that serious environmental concerns about some proposed construction emerge after the General Assembly has enacted the loan act for the project. We have no doubt that the Board would act within its authority by seeking more information about the environmental issue and, if need be, deferring action until the General Assembly has had a further opportunity to consider the matter.

Information about support for a project by the members of the local legislative delegation is potentially relevant to the Board's effort to safeguard against unintended consequences. If legislators are willing to publicly support a project, the chances are better that nothing has arisen to call into question the basis for the General Assembly's authorization of the grant. Conversely, like the canary in the mine shaft, legislators' unwillingness to register support for a project in their district might serve as a warning to the Board to look for a problem with the project. Cf. Harris v. Eichbaum, 642 F. Supp. 1056, 1068 (D. Md. 1986) (agency could deny permit because of health problems brought to light by legislators and citizens).5

In addition to its role of attending to the particulars of each project, the Board also has the responsibility of viewing individual borrowing decisions from the perspective of the State's overall financial well-being. The State's superlative credit rating is protected by a variety of safeguards, including careful attention by the Governor and the General Assembly to prudence in borrowing. See SF §8-112(b) (Capital Debt Affordability Committee to provide estimate by September 10 "of the total amount of new State debt that prudently may be authorized for the next fiscal year").6 The Board of Public Works, given by statute the last word on borrowing, is the final safeguard.

As the economy and business conditions change, so does the State's fiscal outlook. Interest rate movement and other financial market considerations might make it imprudent for the State to incur the amount of debt that had seemed prudent when the various loan acts were enacted, months or years earlier. We think that it would be far from arbitrary, indeed, it would be exactly what the General Assembly envisioned, if the Board took such changed circumstances into account.

If the Board believes that some borrowing ought to be deferred, it must assign priorities. Other things being equal, a project that enjoys the publicly stated support of the legislators from the district might reasonably be viewed by the Board as more suitable for prompt funding than a project lacking such support. Legislators' support is shorthand for public support; legislators' indifference implies public indifference, too.

In short, we see nothing unlawful about the Governor's or any other Board member's wanting to find out whether legislators representing the district in which a project is to be built support the project. Nor, in most cases, would there be anything unlawful about taking that information into account in deciding whether to vote for an item.

But as the Court of Appeals held in Truitt, the Board's discretion has limits. See also 62 Opinions of the Attorney General at 724-25. If the Board were to take the position that it would never approve a project without evidence of legislators' support, a court might find such a policy to be arbitrary, for so inflexible a policy would be the antithesis of the exercise of discretion over funding requests and borrowing that the legislation contemplates. The Board should retain its discretion to act on a case-by-case basis, free to take account of what legislators' support (or the absence of it) signifies about a project, but not bound to decide based solely on that factor. Cf. Condor Corp. v. City of St. Paul, 912 F.2d 215, 223 n.15 (8th Cir. 1990); Northwest College v. City of Arden Hills, 281 N.W.2d 865, 869 (Minn. 1979) (both cases rejecting reliance on neighborhood sentiment as sole basis for permit decisions). In particular, any requirement that legislators sign a specific form as a prerequisite to Board consideration of a project may be held to be arbitrary, on the ground that a rigid documentation requirement bears no reasonable relation to the statutory duties of the Board.

Moreover, an inflexible policy would raise other serious issues, because the Board effectively would be ceding discretion that the statute vests in the Board. Such a delegation is legally questionable.8 Finally, a policy requiring legislators' support in all cases might be seen as amounting to an unconstitutional grant of a veto over projects to a small subset of the General Assembly, which has authority neither to legislate on its own nor to determine how enacted laws are to be carried out.9

We need not elaborate on the legal problems that would be raised by an inflexible policy of this sort, because the Board itself has not adopted such a practice. Indeed, the full Board has not addressed the matter. When it does so, we are confident that it will act in a manner that will avoid the legal problems described above.

B. Procedures

The procedures of the Board of Public Works are not spelled out by law. The Constitution merely instructs the Board to meet at least quarterly (Article XII, §1) and declares the common law rule that "a majority of them shall be competent to act." Article XII, §2. The Governor has no special authority over actions by the Board; he is a co- equal with the other two members.

Preparation of the portion of the Board's agenda that would typically present projects subject to the Governor's policy is the responsibility of the Department of General Services.10 But DGS's role in this respect is at the sufferance of the Board; DGS has no specific statutory power to control the Board's agenda. See SF §§4-207 and 4- 208 (DGS to perform functions "requested of it" by the Board).

DGS has sought to obtain statements of support from legislators, in accordance with the Governor's instructions, and has not submitted items for Board action without those statements. In effect, DGS has been told to supply the Governor with a piece of information that the Governor wants before he votes on an item. And, as we discussed in Part IIA above, that information might well be pertinent to decisionmaking about the project.

Moreover, the fact that DGS keeps an item off the agenda while seeking evidence of delegation support is not itself a legal problem. DGS is simply applying in this context the longstanding Board practice that a member of the Board may have an item deferred until additional information is forthcoming.

This practice is just that: a practice based on courtesy, not a requirement grounded in law. If, at any time, two members of the Board wish to instruct DGS to bring an item to the agenda, they may do so, and neither the other Board member nor DGS has authority to prevent the Board's consideration and approval or disapproval of the item.

III

Executive Branch Agencies

Article II, §1 of the Constitution vests "the executive power of the State" in the Governor. Cabinet secretaries serve at the Governor's pleasure and are expected to carry out his policies. See Article 41, §1- 201 of the Maryland Code and §3-302 of the State Government Article.

Nevertheless, Executive Branch agencies "derive all their authority from the legislative branch." Annapolis v. Annapolis Waterfront Co., 284 Md. 383, 394, 396 A.2d 1080 (1979). In the words of a prior opinion, "the actions of an ... agency must be consistent with the statute that grants it the authority to act." 70 Opinions of the Attorney General 135 (1985). Thus, an agency may condition approval of project funding on evidence of legislators' support only if that requirement is consistent with the agency's authorizing statute.

This opinion cannot undertake a detailed consideration of all of the statutes that authorize agencies to provide funding themselves or to recommend funding to the Board of Public Works. In every instance, the agency must first consider the extent to which it may exercise discretion over funding applications. If the statutory scheme were such that the agency is required to fund a project (or to bring an item to the Board) once specified criteria are met, the agency may not take into account legislators' support and may not require an applicant to provide evidence of that support.

On the other hand, other statutes do not confine agencies to a specified list of factors and instead might reasonably be read to afford agencies considerable leeway in evaluating requests for funding. If an agency has broad discretion to assign priorities to these requests, generally it may take account of legislators' support when it does so for the same reason that the Board of Public Works may do so. See Part IIA above.11 And, depending on the particulars of the agency's statute, the agency might be able to treat the lack of such support as a decisive indication that the request merits a low priority.

Yet, even if an agency has authority to take account of legislators' support, it must follow proper procedures in doing so. An agency's statement that applicants for a grant or loan are expected to provide written evidence of legislators' support and that applications will be deferred if submitted without such evidence is a "regulation," as defined in §10-101(e) of the State Government Article. It "has general application" and "future effect," and it functions both to "carry out a law that the [agency] administers" and to "govern the procedure of the unit."

As far as we are aware, no agency has conducted the rulemaking proceeding called for by the Administrative Procedure Act to make a requirement about evidence of legislators' support legally effective. "[I]f [an] agency fails to comply with the adoption requirements of the APA, the agency's action is void." 75 Opinions of the Attorney General 37, 44 (1990). Thus, no agency may at present treat an applicant's failure to provide evidence of legislators' support as a reason to delay or deny the application.

IV

Potential Liability

If the Board of Public Works or an Executive Branch agency were to delay or deny funding for a project because evidence of legislators' support was not provided, the beneficiary of the requested funding might seek a writ of mandamus to compel processing of the funding request.12 Such a plaintiff would not likely prevail if the Board or agency took account of legislators' support (or the lack of it) in exercising discretion about funding decisions.

The Court of Appeals "has repeatedly emphasized that mandamus ordinarily will not lie to control the exercise of discretion." Freeman v. Local 1802, 318 Md. 684, 692, 569 A.2d 1244 (1990). As we explained in Part II above, the Board may consider legislators' support as part of its exercise of discretion. "[W]here ... the acts and duties necessarily call for the exercise of judgment and discretion ... mandamus will not lie to direct the manner in which such discretion shall be exercised." Criminal Injuries Comp. Bd. v. Gould, 273 Md. 486, 514, 331 A.2d 55 (1975). Cf. Maryland Pavement Co. v. Mahool, 110 Md. 397, 408-09, 72 A. 833 (1909) (mandamus does not lie to control discretion in award of public works contract). In many cases, an Executive Branch agency's decisionmaking process would be beyond mandamus for the same reason. See Part III above.

If, however, the Board of Public Works were to adopt an inflexible policy making evidence of legislators' support a sine qua non of approval, or if the statute governing an Executive Branch agency's decisionmaking precludes consideration of legislators' support, mandamus might well be a proper remedy. The Court of Appeals "has recognized that mandamus will lie to remedy arbitrary abuses of discretion." Tyler v. Baltimore County, 251 Md. 420, 433, 247 A.2d 704 (1968). In that case, the Court of Appeals held that mandamus was the appropriate remedy for a plaintiff whose application for a sanitary landfill had been denied by two agencies that had imposed requirements not authorized by law.13

A parallel line of cases holds that where a specific sum of money is appropriated for certain defined services or to a specific person, mandamus will lie to enforce payment, but where discretion or judgment is required as to whether, how much, or who to pay, it will not. Wailes v. Smith, 76 Md. 469 (1893), appeal dismissed 157 U.S. 271 (1895). Compare Thomas v. Owens, 4 Md. 189 (1853), with Green v. Purnell, 12 Md. 329 (1858).

V

Conclusion

The Governor's policy of seeking statements from legislators in support of projects to be funded by the State is itself lawful. That policy must be administered flexibly, however, to preserve the decisionmaking discretion of the Board of Public Works and to conform to the statutory requirements affecting the decisions of Executive Branch agencies.

J. Joseph Curran, Jr.
Attorney General

Jack Schwartz
Chief Counsel
Opinions & Advice

1
The Board of Public Works is itself an Executive Branch agency.
However, for ease of reference in this opinion, we use the term "Executive Branch agency" as you did in your letter, to refer to cabinet departments and other entities under the ultimate authority of the Governor.

2
Although we are uncertain about the exact scope of the Governor's policy, we understand that it is intended to reach only grants or loans to nonprofit organizations or local governments for capital construction projects, not matters like an individual's application for a subsidized mortgage.

3
The wording of Article XII, §1, the Board members "shall hear and determine such matters as affect the Public Works of the State, and as the General Assembly may confer upon them the power to decide," might suggest that the Board has constitutional authority to determine issues about "Public Works" even without a statute. However, in 62 Opinions of the Attorney General 716 (1977), Attorney General Burch rejected that construction as inconsistent with the language of Article XII, §2 and with the underlying objective of the framers. The Attorney General concluded: "[W]e do not believe that Article XII, Section 1 of the Constitution confers an unlimited and unqualified power on the Board of Public Works in matters affecting the public works of the State, but rather it was the intention of the authors of the Constitution that the Board's power be circumscribed by the Legislature." 62 Opinions of the Attorney General at 727.

4
Since 1969, the Board has used authority granted it under §8-122 of the State Finance and Procurement Article to issue and sell general obligation bonds authorized by the various separate loan acts on a consolidated basis as a single issue, the net proceeds of which are applied to the object or purpose designated in each separate loan act included in the particular sale of State bonds. The $100 million State and Local Facilities Loan of 1991, Third Series, for example, funded part of 72 separate loan acts.

5
We are not suggesting either that legislators' support is dispositive evidence of public support or that public support is always essential to approval of a project's funding. In fact, sometimes public support is immaterial as a matter of law. See note 7 below. Nevertheless, the degree of public support or opposition to a project often would be a relevant fact for the Board, and legislators' support is a convenient barometer by which to gauge public sentiment.

6
Although the Committee's estimate is advisory, SF §8-112(d)(2), in practice the General Assembly is guided by this estimate in authorizing borrowing.

7
We put to one side instances in which a statute like the federal Fair Housing Amendments Act precludes consideration of public support. See generally 75 Opinions of the Attorney General 291 (1990); 74 Opinions of the Attorney General 164 (1989).
In addition, we need not consider the extent to which the Board may take account of public or legislators' reaction when it carries out other duties, such as the issuance of licenses for activities in State wetlands. See, e.g., Circus Disco v. New York State Liquor Auth., 51 N.Y.2d 24, 409 N.E.2d 963 (1980).

8
The general rule is that "in all cases of [legislatively] delegated authority, where personal trust or confidence is reposed in the agent and especially where the exercise ... of the power is made subject to his judgment or discretion, the authority is purely personal and cannot be delegated to another ...." 2 Am. Jur. 2d Administrative Law §222, at 52 (1967). See also Sutherland Statutory Construction §4.14, at 155-56 (4th ed. 1985). Applying this principle, the Oklahoma Supreme Court voided a regulatory agency's requirement of written consent of adjacent landowners for approval of a permit for an anchorage. Anderson v. Grand River Dam Auth., 446 P.2d 814, 817-18 (Okla. 1968). Cf. Quesenberry v. H5SC, 311 Md. 417, 425, 535 A.2d 481 (1988) (subdelegation of quasi-judicial decisionmaking authority impermissible).

9
"[A]lthough no Maryland court has addressed the issue, we continue to caution that a provision requiring [legislative] committee approval of an appropriation or expenditure is of questionable validity." Bill review letter (House Bill 376) from Attorney General Curran to Governor Schaefer (May 24, 1990). See Chaffin v. Arkansas Game and Fish Comm'n, 296 Ark. 431, 757 S.W.2d 950, 956-57 (1988).

10
Loan acts authorizing State-owned capital improvements are administered by the Department of General Services, the Department of Public Safety and Correctional Services, and the University of Maryland System. See SF §12-107. Loan acts authorizing capital grants and loans for local governments or nonprofit institutions are administered by a host of agencies pursuant to their statutory jurisdictions: The Departments of General Services, Public Safety and Correctional Services, Health and Mental Hygiene, Environment, Economic and Employment Development, Housing and Community Development, Juvenile Services, Natural Resources, and Agriculture; the Interagency Committee on School Construction; the Office on Aging; the Higher Education Commission; and the Secretary of the Board of Public Works.
The actual contracts to be approved are funneled from these agencies to the Board on one of three "Action Agendas": Department of Transportation, Department of General Services, or Secretary to the Board, which incorporates as supplements the requests of the Department of Budget and Fiscal Planning, the Department of Public Safety and Correctional Services, the University of Maryland System, and the Department of Natural Resources. As a general rule, the approval requests of the remaining agencies are included either on the Department of General Services' Action Agenda or on the Board Secretary's Action Agenda.

11
See note 7 above for an important exception.

12
We need not here consider whether any other person might have standing to seek mandamus. See Heghinian v. Ford, 209 Md. 113, 120 A.2d 339 (1956); Pumphrey v. City of Baltimore, AT Md. 145 (1877).

13
With respect to possible damages, Rule BE44 authorizes a plaintiff in a mandamus action "to claim and prove his damages, if any, and the court, in entering judgment that the writ of mandamus shall issue, may also award such damages to the plaintiff as he shall have proven." Maryland courts have not addressed the interaction of this rule and the doctrine of sovereign immunity. See generally Annotation, Allowance of Damages to Successful Plaintiff or Relator in Mandamus, 73 A.L.R.2d 903, 928-29 (1960).