Could Maryland's Environmental Trust keep and spend gift money without running it through the state budget and appropriations process?

Plain-English summary

The Secretary of Natural Resources and the Chairman of the Maryland Environmental Trust asked the Attorney General whether the Trust could receive and spend gift funds without running that money through the State's ordinary budget process. The question mattered because Maryland's Constitution requires that money drawn from the State Treasury go through the appropriations process set out in the Budget Amendment, so the answer turned on whether Trust gifts had to be deposited into the Treasury in the first place.

The opinion first laid out a framework going back decades of sometimes-conflicting Attorney General opinions on when State entities may hold funds "off budget." It concluded that the Environmental Trust itself was not a fiscally autonomous entity like the separate Chesapeake Bay Trust: the Secretary of Natural Resources controlled the Trust's plans, projects, and budget, its Director and staff were State employees, and the Trust received a substantial annual state appropriation of general funds. Even so, the opinion concluded that a particular category of the Trust's funds, namely gifts, could still be held outside the Treasury, because the Natural Resources Article expressly authorized Trust members to invest and spend gift money directly by a supermajority vote of the trustees, and because two Court of Appeals decisions (Baltimore v. O'Conor and Kelly v. Marylanders for Sports Sanity) had confirmed that the General Assembly has power to divert certain categories of funds from the Treasury without violating the Budget Amendment, so long as the diversion did not gut the ordinary appropriations process for general tax revenue. The opinion distinguished gifts, which are unpredictable and entirely outside the State's power to compel, from the kind of predictable tax revenue that must stay inside the budget process, and it expressly overruled a prior Attorney General's more restrictive 1983 opinion on gift funds in light of the Kelly decision. It closed by proposing a four-part framework for analyzing future "off budget" fund questions.

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 Natural Resources Article's provisions on the Trust's structure and gift authority, the State Finance and Procurement Article's treasury-deposit requirements, and any later case law or AG opinions revisiting off-budget fund questions before relying on any specific rule described here.

Common questions

Was the Maryland Environmental Trust considered a fully independent, fiscally autonomous entity? No. The opinion concluded the Trust was a State agency subject to significant State oversight, since the Secretary of Natural Resources controlled its plans, projects, programs, and budget, its Director and staff were State employees, and it received a substantial state appropriation, unlike the more independent Chesapeake Bay Trust.

If the Trust wasn't independent, why could it still keep gift funds outside the Treasury? Because the opinion found that the General Assembly had specifically authorized the Trust, through the Natural Resources Article, to accept gifts and to invest or spend that gift money directly by a supermajority vote of trustees, a specific statutory exception that the opinion concluded was a valid exercise of the General Assembly's power to divert certain funds from the ordinary treasury-and-appropriations process.

Does this mean any state agency can keep gift money outside the state budget? Not automatically. The opinion emphasized that the General Assembly's power to divert funds from the Treasury is not limitless, and that whether a specific category of funds can be held off-budget depends on the entity's own statute and whether diverting those particular funds would undermine the purpose of the Budget Amendment; gifts were treated differently from predictable general tax revenue precisely because they are unpredictable and outside the State's power to compel.

Background and statutory framework

Article III, §32 of the Maryland Constitution provides that no money may be drawn from the State Treasury except under an appropriation made through the Budget Amendment process in Article III, §52. Under SF §6-213(a), State units generally must pay collected revenues into the Treasury monthly, subject to statutory exceptions and a public-interest exemption the Comptroller may grant with the Governor's approval under SF §6-213(c)(1). The opinion traced decades of Attorney General opinions taking varying positions on how far the General Assembly could go in authorizing funds to bypass the Treasury, from an early, permissive view under Attorney General Armstrong to a more restrictive 1983 opinion by Attorney General Sachs concluding the General Assembly lacked power to keep "moneys of the State" out of the Treasury.

The opinion found that intervening Court of Appeals decisions had settled much of that uncertainty. In Baltimore v. O'Conor, the Court approved statutes diverting certain motor vehicle fee revenue to local uses before it reached the Treasury. In Kelly v. Marylanders for Sports Sanity, the Court approved the Maryland Stadium Authority's off-budget Financing Fund, which under FI §13-715(c)(5) could include gifts, and observed in a footnote that a State instrumentality may be statutorily exempted from depositing receipts in the Treasury without offending the Comptroller's or Treasurer's constitutional powers. Applying this framework, the opinion found that NR §3-203(4) and (5), which authorized Trust members to accept gifts and to invest or spend gift principal and income by a vote of at least seven elected trustees, was a valid exercise of the General Assembly's authority to keep that specific category of funds, unpredictable gifts rather than compelled tax revenue, outside the Treasury and the appropriations process, and also outside the Governor's-assent requirement for agency gift acceptance under SF §2-201(b).

Citations and references

Statutes:

• Article III, §32 of the Maryland Constitution, requiring an appropriation before money is drawn from the Treasury
• Article III, §52 of the Maryland Constitution, the Budget Amendment governing the appropriations process
• Article VI, §2 of the Constitution, the Comptroller's duty to superintend collection of taxes and revenue
• Article VI, §3 of the Constitution, the Treasurer's duty to receive and deposit State moneys
• Article XV, §1, requiring fee-compensated officers to remit excess fees to the Treasurer
• SF §6-213(a), the general duty of State units to pay revenues into the Treasury monthly
• SF §6-213(c)(1), authorizing the Comptroller, with the Governor's approval, to exempt revenues from that deposit requirement
• §13-715 of the Financial Institutions Article, governing the Maryland Stadium Authority's Financing Fund
• FI §13-715(c)(5), including gifts and donations among the Financing Fund's authorized sources
• FI §13-719(5), requiring the Stadium Authority to submit an informational budget despite operating outside appropriations
• Article XVI, §2 of the Constitution, the Referendum Amendment's exception for appropriation laws
• §1-103(a) of the Natural Resources Article, giving the Secretary of Natural Resources control over the Trust's plans, proposals, projects, and programs
• NR §3-203, setting out the Trust's powers and duties
• NR §1-103(b), giving the Secretary responsibility for the Trust's budget
• NR §3-205, making the Trust's Director and staff State employees
• NR §3-201(a), the Trust's 1967 charitable purpose
• NR §8-1909(a)(2), empowering the separate Chesapeake Bay Trust to act without State agency consent
• NR §8-1909(a)(1), exempting the Bay Trust from procurement, merit system, and pension laws
• NR §8-1909(a)(1) and (b), exempting the Bay Trust from budget statutes except as to any state appropriations
• NR §3-203(4), authorizing the Trust to accept gifts
• NR §3-203(5), authorizing trustees to invest or spend gift funds by supermajority vote
• SF §2-201(b), generally requiring Governor's assent to a State agency's acceptance of gifts
• SF §2-201(c), subjecting gift funds to the appropriations process unless statutorily exempted
• Chapter 409, Laws of Maryland 1990 at 1452 (item 30.01.13.01), the Trust's fiscal year appropriation

Cases:

• Wyatt v. State Roads Comm'n, 175 Md. 258, 1 A.2d 619 (1938), on toll revenues held in trust for bondholders not being "moneys of the State"
• Baltimore v. O'Conor, 147 Md. 639, 647, 128 A. 759 (1925), approving statutes diverting certain revenue to local uses before it reached the Treasury
• Kelly v. Marylanders for Sports Sanity, 310 Md. 437, 530 A.2d 245 (1987), approving the Stadium Authority's off-budget Financing Fund and confirming the General Assembly's power to exempt a State instrumentality from Treasury deposit requirements

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 59-67 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.

BUDGETARY ADMINISTRATION

Revenues - Maryland Environmental Trust May Maintain and Expend Gift Funds Outside of the Budget Process

May 30, 1991

The Honorable Torrey C. Brown, M. D.
Secretary of Natural Resources

Mr. James B. Wilson
Chairman of the Maryland
Environmental Trust

You have requested our opinion whether the Maryland Environmental Trust may receive and spend gift funds outside of the State budget process.

For the reasons stated below, we conclude that the Trust may do so.

I

Allocation of Revenues - Constitutional Principles

One of the few constitutional certainties in this area of the law is that once funds are received into the State Treasury, they become subject to the appropriations process. Under Article III, §32 of the Maryland Constitution, "no money shall be drawn from the Treasury of the State ... except in accordance with an appropriation by law." The manner of appropriation is governed by the Budget Amendment, Article III, §52. Thus, if an entity is to operate wholly or partially "off budget", that is, outside of the ordinary appropriations process, its funds must be held outside of the Treasury.

The Constitution is not nearly so explicit about the flow of funds into the Treasury. Among other duties, the Comptroller is to "superintend and enforce the prompt collection of all taxes and revenue." Article VI, §2 of the Constitution. The Treasurer is to "receive the moneys of the State, and, until otherwise prescribed by law, deposit them, as soon as received, to the credit of the State ...." Article VI, §3.

The Constitution does not impose a general requirement that State officials remit the funds that they receive to the Treasury.1 Under §6- 213(a) of the State Finance and Procurement Article ("SF" Article), they have that duty; but a general statutory duty is of course subject to statutory exceptions.2

Hence, the crucial issue is the extent to which the General Assembly may authorize funds to be held outside the Treasury and therefore expended without regard to the strictures of the Budget Amendment. For over half a century, the Attorney General's office has struggled to provide guidance on this issue. But, hampered by the imprecision of the Constitution and the lack of any definitive judicial interpretation, this office has been unable to provide consistent guidance.

The views expressed by this office have tended toward polar extremes. Soon after the adoption of the Budget Amendment of the Constitution, Attorney General Armstrong took the position that the General Assembly had essentially unfettered discretion to ''designat[e] the manner of use of monies received by various agents of the State prior to the time when these monies find their way into the State Treasury." 6 Opinions of the Attorney General 345, 346. See also 8 Opinions of the Attorney General 172, 173 (1923); 6 Opinions of the Attorney General 263, 265-66 (1921).3 Attorney General Burch shared this view. See 63 Opinions of the Attorney General 492 (1978).

But not long ago, Attorney General Sachs was equally emphatic in rejecting the idea that the General Assembly had the power "to direct that 'moneys of the State' not be deposited in the State Treasury but, instead, be held by an agency in a separate checking account apart from the Treasury." Rather, he concluded, the General Assembly was constrained by "the constitutional requirement that 'moneys of the State' be deposited in the Treasury." 68 Opinions of the Attorney General 86, 90 (1983).4

Mindful of this history, and wary about adding yet another divergent opinion to this roster, we nevertheless will try to provide the guidance that you seek.

First of all, the General Assembly has the constitutional power to create entities that are fiscally autonomous, entities intended to receive and spend money without the constitutional controls placed upon State agencies. See 49 Opinions of the Attorney General 164, 173 (1964) (Maryland Higher Education Loan Corporation). In 71 Opinions of the Attorney General 10, regarding the Chesapeake Bay Trust, Attorney General Sachs discussed at length the criteria for determining whether "an activity is part of the State's governmental apparatus, so that the State will be held accountable for the activity's use of funds ...." 71 Opinions of the Attorney General at 15. In general, one considers the extent of State oversight responsibility, accountability for fiscal matters, the scope of the activity's public services, and any special financing arrangements. 71 Opinions of the Attorney General at 18-23.5 Applying these guidelines, we conclude in Part II below that the Maryland Environmental Trust is not fiscally autonomous.

If the General Assembly has chosen to create an entity that, like the Maryland Environmental Trust, is not fiscally autonomous but is instead part of the State's integrated fiscal operations, the next question is whether any particular category of the agency's funds is properly held outside of the Treasury and hence not subject to the appropriations process. One such category is funds that are not "moneys of the State" because of the special nature of the funds, for example, toll revenues held in trust for bondholders. Wyatt v. State Roads Comm'n, 175 Md. 258, 1 A.2d 619 (1938). See generally 70 Opinions of the Attorney General 35, 39-40 (1985).6

Another category is funds that, by statutory authorization, may be held outside the Treasury even though by their nature the funds are "moneys of the State." The General Assembly unquestionably has power to determine that at least some funds that would otherwise become "moneys of the State" are not to enter the Treasury.

Twice the Court of Appeals has recognized this power. In Baltimore v. O'Conor, 147 Md. 639, 647, 128 A. 759 (1925), the Court of Appeals wrote approvingly of statutes that "sought to divert to certain local uses money which would ordinarily have gone to the commissioner of motor vehicles, and part of which would no doubt have eventually reached the treasury. This is quite different from appropriating money after it has been paid into the State Treasury." As we characterized the import of the Court's decision, the General Assembly may "determine by statute that a category of funds derived from the residents of a political subdivision or from events occurring within a subdivision are not to enter the ordinary flow of State revenues but instead are to be remitted directly to that subdivision for its general purposes or for some specific purpose identified in the statute." 75 Opinions of the Attorney General 124, 130 (1990).

Moreover, just a few years ago the Court of Appeals approved another exercise of the General Assembly's power to authorize off- budget funds. In Kelly v. Marylanders for Sports Sanity, 310 Md. 437, 530 A.2d 245 (1987), the Court of Appeals was asked to determine whether certain legislation related to the Maryland Stadium Authority was subject to referendum. The Court held that the legislation could not be referred, because it was a "law making [an] appropriation for maintaining the State Government ...." Article XVI, §2 of the Constitution.

In the course of discussing why the legislation was properly to be viewed as an "appropriation" within the meaning of the Referendum Amendment, the Court discussed the particular financial structure of the Authority. The Court wrote that the legislation "authorizes a State instrumentality, the Maryland Stadium Authority, to borrow funds through the issuance of its bonds, the proceeds to be deposited in its Financing Fund, a special revolving fund account not within the State Treasury." 310 Md. at 459-60. See §13-715 of the Financial Institutions Article ("FI" Article).7 Perhaps anticipating that eyebrows might be raised about the constitutionality of an account "not within the State Treasury," the Court wrote the following footnote:

Under §6-213 of the State Finance Article ..., a State instrumentality like the Authority may be exempted by statute from depositing its receipts in the State Treasury. As to the Authority's Financing Fund, it is so exempted .... The constitutional powers vested in the Comptroller and in the State Treasurer are not contravened by such a statute.

310 Md. at 460 n.11.

To be sure, the General Assembly's power to divert the flow of revenues to accounts outside the Treasury is not limitless. We reiterate the view, expressed last year, that the General Assembly may not "authorize a system of State resource allocation completely outside of, and necessarily destructive of, the Budget Amendment," by, for instance, allocating outside of the budget process "specific dollar amounts of Statewide income tax revenues that have already been estimated and appropriated in the Budget Bill ...." 75 Opinions of the Attorney General at 131. But whatever the limits of the General Assembly's authority, plainly it did not cross the line when it enacted the off-budget Stadium Financing Fund.

While we cannot predict where the line is to be drawn in all cases that might arise in the future, we believe that this aspect of Kelly has important consequences for the question that you posed about the Trust's gift funds. In Part III below, we conclude that the General Assembly has properly exercised its authority to exempt gifts to the Trust from deposit into the Treasury and therefore from the appropriations process.

II

Nature of the Maryland Environmental Trust

In 1974, Attorney General Burch concluded that the Maryland Environmental Trust was a State agency: "In view of the creation of the Trust for the public benefit, its explicit public purposes and the State's sanction and control of its functions, it is our opinion that the Maryland Environmental Trust is a State agency." 59 Opinions of the Attorney General 501, 502 (1974). See also 57 Opinions of the Attorney General 352, 357 (1972) (characterizing the Trust as a "public agency").8

Attorney General Burch pointed in particular to the fact that "the Secretary of the Department of Natural Resources has ultimate responsibility for the plans, proposals, projects and programs of the Trust and he may approve, disapprove or modify same to the extent not inconsistent with law ...." 59 Opinions of the Attorney General at 502. In this fundamental respect, the law has not changed since 1974. See §1-103(a) of the Natural Resources Article ("NR" Article).

We also note that when Attorney General Sachs approved a listing of activities that were outside the scope of the State financial reporting entity in 1979, the Environmental Trust was not on that list. Thus, Attorney General Sachs implicitly concluded that the Trust was part of the State's financial operations. See 71 Opinions of the Attorney General at 16-17 nn. 9 and 10 and accompanying text.

We reaffirm these conclusions. Applying the terminology developed in the second Chesapeake Bay Trust opinion, we conclude that the State bears both significant oversight responsibility for the Trust and is accountable for the Trust's fiscal activities. See 71 Opinions of the Attorney General at 18-23. Although the Trust has a wide range of powers and duties, as set out in NR §3-203, all of its "plans, proposals, projects, and programs" are subject to the control of the Secretary of Natural Resources. NR §1-103(a). The Secretary is also responsible for its budget. NR §1-103(b). The Director of the Trust and its staff are employees of the State. NR §3-205.

Moreover, the Environmental Trust receives substantial State appropriations. For the current fiscal year, the Trust received an appropriation of slightly over $455,000, almost all of which came from general funds. Chapter 409, Laws of Maryland 1990 at 1452 (item 30.01.13.01).

The contrast with the Chesapeake Bay Trust is noteworthy. The Bay Trust is empowered to "carry out its corporate purposes without obtaining the consent of any department, board, or agency of the State." NR §8-1909(a)(2). Moreover, the Bay Trust is exempt from the State Procurement Law, the Merit System Law, and the pension laws. NR §8-1909(a)(1). The Bay Trust is also generally exempt from statutory provisions governing the budget, except "to the extent of State appropriations, if any." NR §8-1909(a)(1) and (b). In fact, the Bay Trust "has received small, and declining, amounts of appropriated funds." 71 Opinions of the Attorney General at 21. For the current fiscal year, the Bay Trust received no appropriated funds.

These major differences in the statutes of the two entities cause us to reach different conclusions about their status for purposes of State fiscal controls. The Environmental Trust simply has not been given the autonomy of the Bay Trust.

III

Gifts to the Trust

The Trust has the power to "[a]ccept any gift." NR §3-203(4). This provision goes on to authorize the trustees to "expend the principal and income of any gift of money or invest it in whole or in part in general obligations of the State or other securities in furtherance of the Trust, as decided at a regular or special meeting, if a quorum is present, by the affirmative vote of a minimum of seven elected trustees." See also NR §3-203(5). This language about investment manifests an unmistakable legislative intent to authorize the Trust to maintain these gift funds outside of the Treasury.

In 63 Opinions of the Attorney General 492 (1978), Attorney General Burch advised that the Maryland Historical Trust "is authorized to establish a checking account for gift funds and hold such amounts separately from the State Treasury." Attorney General Burch was of the view "that the General Assembly may expressly authorize a State agency or instrumentality to hold money in its accounts apart from the State Treasury." 63 Opinions of the Attorney General at 494.

Five years later, Attorney General Sachs overruled that opinion.
Attorney General Sachs took the position that if gift funds, be they received as a gift or otherwise, are properly regarded as "moneys of the State," then "the General Assembly lacks power to prescribe that [the funds] not enter the Treasury." 68 Opinions of the Attorney General at 91.9

In light of Kelly and Baltimore v. O'Conor, that flat conclusion cannot stand. See Part I above. Under some circumstances at least, the General Assembly does have power to prescribe that "moneys of the State", including gifts to a State agency, not enter the Treasury. The Stadium Authority's off-budget Financing Fund includes in part "[a]ny ... gift, donation, or other source authorized by law." FI §13-715(c)(5).

Legislative authorization for an agency to hold and expend gifts off- budget does not pose a threat to the fiscal integrity sought to be achieved by the Budget Amendment. Gifts are unpredictable, wholly outside the State's powers of compulsion, and often restricted in their application. They are unlike the general tax revenues discussed in 75 Opinions of the Attorney General 124.

Under the circumstances, we conclude that NR §3-203(4) is a constitutional exercise of the General Assembly's authority. Hence, gifts received and held by the Trust under that authority are not subject to the appropriations process.10

IV

Conclusion

In summary, it is our opinion that the Maryland Environmental Trust may maintain and expend its gift funds independently, outside of the budget process.

We have taken the occasion of this opinion to revisit, and in some respects modify, this office's guidance about the legality of "off-budget" funding mechanisms. Sometimes it seems as if our every attempt to answer a question on this topic simply yields new questions, and perhaps this opinion will not be an exception to that rueful rule. Nonetheless, we suggest that problems of this kind be addressed in the following way:

1. Was the entity in question created by the General Assembly with the intent that it operate wholly independently of the State's fiscal controls? If so, the entity's fiscal affairs are outside of the appropriations process. If not, then the particular category of funds in question must next be considered.

2. Does some special characteristic of the funds mean that they are not "moneys of the State?" If so, the funds may be held and expended off-budget. If not, then any statute addressing the status of the funds must next be considered.

3. Does a statute authorize the particular category of funds to be held outside of the Treasury and expended outside of the appropriations process? If not, the funds must be held in the Treasury and expended only in accordance with an appropriation. If so, then the constitutionality of the statute must next be considered.

4. Is the statute diverting funds from the ordinary channels for State revenues consistent with the purpose of the Budget Amendment and therefore constitutional? If so, the funds may be held and expended off-budget, in accordance with the statute. If not, the funds may be expended only in accordance with an appropriation.

J. Joseph Curran, Jr.
Attorney General

Jack Schwartz
Chief Counsel
Opinions and Advice

1
Article XV, §1 requires officers whose compensation is derived from fees to "pay over to the Treasurer of the State the amount of ... excess" fees.

2
SF §6-213(a) provides:
Except as otherwise provided by law, each unit of the State government monthly shall:
(1) Pay into the State Treasury all collections, fees, income, and other revenues that are received by the unit; and (2) Account to the Comptroller for those revenues.
(Emphasis added.) SF §6-213(c)(1) also authorizes the Comptroller, with the approval of the Governor, to "exempt revenues from the requirements of subsection (a) of this section if the Comptroller determines that the exemption would be in the public interest."

3
For example, Attorney General Armstrong observed as follows about a statute authorizing the Commissioner of Motor Vehicles to retain and expend vehicle titling fees: "This procedure did not in any way conflict with the Budget Amendment to the Constitution, because the money never passed into the Treasury of the State." 8 Opinions of the Attorney General at 173.

4
Attorney General Sachs found this requirement in Article VI, §3 of the Constitution, regarding the duties of the State Treasurer.

5
Some specific factors are: whether a State official selects the activity's final decisionmaker and its line managers; whether a State official is able to influence its operations significantly; whether State officials decide about its budget, manages its assets, and are responsible for its surplus or deficit; whether it receives its revenues outside of ordinary State funding channels; and whether it performs tasks of general public benefit.

6
The criteria to be considered in determining whether funds are "moneys of the State" are these: "whether the State exercised its sovereign power to acquire the funds; whether the 'ordinary channels for state revenues' are inconsistent with the purposes for which the funds are assembled; whether the expenditure of the funds primarily benefit private persons or the public at large; and whether the State, having a 'right' to the funds, may exercise broad discretion over their expenditure." 70 Opinions of the Attorney General at 40 (quoting Wyatt, 175 Md. at 269).

7
That the Financing Fund is meant to operate outside of the appropriations process is made manifest by FI §13-719(5), which requires the Stadium Authority to "[s]ubmit annually a budget reflecting the operating and capital program of the authority to the Department of Budget and Fiscal Planning for inclusion for informational purposes in the State Budget Book." (Emphasis added.)

8
The Trust was established in 1967 "to conserve, improve, stimulate, and perpetuate the aesthetic, natural, health and welfare, scenic, and cultural qualities of the environment.... The purpose of the Trust is of general benefit to citizens of the State, and it is charitable in nature." NR §3-201(a).

9
That opinion did not decide whether gift funds are "moneys of the State." 68 Opinions of the Attorney General at 91 n.5.

10
The Trust's authority to accept gifts also apparently exempts it from SF
§2-201(b), which requires the assent of the Governor to the acceptance of gifts by State agencies. See generally 75 Opinions of the Attorney General 67 (1990). Unless exempted by statute, gift funds are subject to the appropriations process. SF §2-201(c).