Could Maryland's State Board of Education ban smoking on school grounds by regulation, without negotiating with teachers' unions first?

Plain-English summary

Maryland's State Board of Education adopted regulations requiring every local school system to maintain a "tobacco-free school environment," barring the sale or use of tobacco in school buildings at all times and on school grounds during the school day. A legislative oversight committee asked the Attorney General two questions: whether the statutes the Board cited actually supported the regulation, and whether banning smoking by staff on school premises was instead a "working condition" that had to be negotiated with employee unions under the collective bargaining statute.

The Attorney General concluded that one of the two statutes the Board cited, ED §7-401, did not support the regulation because it imposed duties on local school boards and the state health department jointly, not a grant of authority to the State Board itself. But the other cited provision, ED §2-205, was sufficient. The Board's general power to adopt binding regulations and its duty to exercise "general control and supervision over the public schools" extended to school-environment health risks, similar to existing rules on fire prevention, protective eyewear, and student transportation. On the bargaining question, the opinion applied the Maryland Court of Appeals' test from a 1987 school-calendar case: a subject is outside mandatory bargaining if it predominantly concerns educational policy or school administration, and the Board's own line-drawing gets deference unless it is arbitrary or unlawful. The opinion found nothing arbitrary about the Board's judgment that the health interests of the school community outweighed staff smoking interests, even though the regulation reversed the Board's own 1988 adjudicatory decision treating smoking restrictions as negotiable.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did the State Board of Education have the legal authority to ban tobacco use by teachers on school grounds without a new law from the legislature? Yes, according to the opinion. It concluded the Board's existing general regulatory authority under ED §2-205, including its duty of "general control and supervision over the public schools," was itself enough to support a tobacco-free campus regulation.

Was banning staff smoking treated as a "working condition" that had to go through union negotiation? No. The opinion concluded the ban was a matter of school administration and public health policy, not a negotiable working condition, applying the Court of Appeals' predominant-concern test from the 1987 Montgomery County school-calendar case.

Did it matter that the State Board itself had previously treated smoking restrictions as negotiable? Not decisively. The opinion noted the Board's 1988 adjudicatory opinion had gone the other way, but explained that an agency exercising statutory discretion may reach a different policy conclusion later through a validly adopted regulation, so the shift did not undermine the Board's authority.

Background and statutory framework

The tobacco-free school environment regulations, codified at COMAR 13A.02.04.01 and COMAR 13A.02.04.03, barred the sale or use of tobacco in school buildings at all times and on school grounds during the official school day. The State Board cited two statutes in support: ED §7-401, which the opinion found imposed duties on local boards and the state health department rather than granting authority to the State Board, and ED §2-205, which the opinion found sufficient because it gave the Board power to determine elementary and secondary education policy, adopt binding regulations, and exercise general control and supervision over public schools and their educational interests.

On the collective bargaining question, the opinion applied Montgomery County Education Association, Inc. v. Board of Education of Montgomery County, in which the Court of Appeals held that the collective bargaining statute, ED §6-408, could not be read to cover matters that predominantly concern educational policy or school administration, and that the State Board's own determination of that line is normally controlling unless arbitrary, contrary to the Education Article, or otherwise unlawful. The opinion reasoned that the Board's regulations reasonably balanced staff smoking interests against the health interests of the school community, consistent with the Governor's contemporaneous executive order describing secondhand smoke as a proven health hazard.

Citations and references

Statutes:

• ED §2-205, including (b)(1), (c)(1), (c)(2), (g)(2), State Board's general regulatory and supervisory authority
• ED §7-401, local school board and health department duties (found not to support the regulation)
• ED §6-408, collective bargaining scope for certificated employees
• ED §6-510(b), parallel bargaining provision for noncertificated employees
• COMAR 13A.02.04.01, 13A.02.04.03, tobacco-free school environment regulations
• COMAR 13A.08.01.08(B), 13A.06.04.01, 13A.06.06.01, 13A.06.07, comparison school-environment regulations
• Executive Order 01.01.1992.20, statewide smoking-in-buildings order

Cases:

• Montgomery County Education Association, Inc. v. Board of Education of Montgomery County, 311 Md. 303, 534 A.2d 980 (1987)

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/1992/Volume77_1992.pdf (this opinion appears at printed page 56 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.

EDUCATION

Public Schools - State Board of Education Has Authority to Adopt Tobacco-Free School Environment Regulations

October 7, 1992

The Honorable Paula C. Hollinger
The Honorable Kenneth H. Masters
Joint Committee on Administrative,
Executive and Legislative Review

You have requested our opinion concerning the authority of the State Board of Education to adopt regulations calling for a "tobacco-free school environment." Specifically, you question the statutory provisions cited by the State Board in support of its regulations, and you ask whether a prohibition of smoking by staff members on school premises is a matter that is subject by law to collective bargaining.

For the reasons stated below, we conclude as follows:

1. The State Board correctly cited §2-205 of the Education Article ("ED" Article) as a basis for its regulation. The other provision cited by the State Board, ED §7-401, does not provide any authority for the regulation.

2. The State Board reasonably determined that an across-the-board prohibition of smoking on school premises is within the Board's "general control and supervision over the public schools and educational interests of the State" under ED §2-205(g)(2) and is not a "matte[r] that relate[s] to ... working conditions" subject to collective bargaining under ED §6- 408.

I

Tobacco-Free School Environment Regulations

The new regulations "require each local school system to maintain a tobacco-free school environment." COMAR 13A.02.04.01. The core of the regulatory scheme is as follows:

The sale or use of tobacco in any form is prohibited in school buildings at all times. In addition, the sale or use of tobacco in any form is prohibited on school grounds during the official school day.

COMAR 13A.02.04.03.

The regulations derive primarily from the State Board's concern, supported by public comments and testimony, that tobacco smoke poses a health risk to nonsmokers.1 In addition, the State Board seeks to ensure that students are not exposed to behavior by teachers and other school employees that would undermine educational efforts to reduce tobacco use by students.

II

Cited Authority

In both the proposal and final submission stages of the regulatory process, the State Board cited as its authority ED §§2-205 and 7-401. Taking them in reverse order, we conclude that ED §7-401 is not a basis for the regulation. ED §2-205 is a sufficient basis, however.

A. ED §7-401

ED Title 7, Subtitle 4 deals with the health and safety of students.
ED §7-401(a) imposes certain duties on local school boards, not on the State Board:

With the assistance of the county health department, each county board shall provide:

(i) Adequate school health services;

(ii) Instruction in health education; and

(iii) A healthful school environment.

1
In his recent executive order prohibiting smoking in State buildings and facilities, the Governor pointed out that "[e]nvironmental tobacco smoke (second hand smoke) is a proven cause of cancer in nonsmokers" and "[e]nvironmental tobacco smoke can worsen cardiac, respiratory, and allergic conditions both in individuals who do not as well as those who do smoke." Executive Order 01.01.1992.20 (preamble).

The provision then goes on to require the State Department of Education and the Department of Health and Mental Hygiene jointly to "[d]evelop public standards and guidelines for school health programs" and to "[o]ffer assistance to the county boards and county health departments in their implementation."

Manifestly, the tobacco-free school environment regulations are not the kind of joint standards and guidelines for school health programs contemplated by ED §7-401(b). Moreover, while we do not doubt the State Board's authority to regulate local boards in the exercise of their authority under ED §7-401(a), the State Board's authority to do so must emanate from another source, for ED §7-401(a) does not itself provide any authority to the State Board.

For these reasons, we conclude that the State Board incorrectly cited ED §7-401 as a basis for its regulation.

B. ED §2-205

The State Board is empowered to "[d]etermine the elementary and secondary educational policies of this State." ED §2-205(b)(1). It may "adopt bylaws, rules, and regulations for the administration of the public schools," which "have the force of law when adopted and published." ED §2-205(c)(1) and (2). Finally, the State Board, through the State Superintendent of Schools, "shall exercise general control and supervision over the public schools and educational interests of the State." ED §2- 205(g)(2).

As a general proposition, these grants of statutory authority are sufficient to authorize the State Board to regulate aspects of the school environment that pose a risk to the health of students. The "general control and supervision over the public schools" surely extends to aspects of the school environment that pose immediate health or safety risks or long-term health risks. Existing regulations deal with such matters as student tobacco use on school premises, COMAR 13A.08.01.08(B); fire prevention, COMAR 13A.06.04.01; protective eye devices, COMAR 13A.06.06.01; and student transportation, COMAR 13A.06.07.

Unlike earlier environmental regulations, however, the tobacco-free school environment regulations directly affect teachers and other staff members by ending longstanding practices like smoking in teachers' lounges. Hence, we next turn to the issue whether the regulations effect a change in "working conditions" subject to negotiation under ED §6-408. If ED §6-408 were applicable, the State Board would not be empowered by ED §2-205 to impose a change in working conditions by regulation. In Part III of this opinion, however, we conclude that the State Board's judgment - that ED §6-408 is not applicable - is within the Board's legal authority.

III

Boundaries of Collective Bargaining

ED §6-408(b)(1) identifies certain subjects of collective bargaining between a local school board and certificated employees:

On request a public school employer or at least two of its designated representatives shall meet and negotiate with at least two representatives of the employee organization that is designated as the exclusive negotiating agent for the public school employees in a unit of the county on all matters that relate to salaries, wages, hours, and other working conditions.2

The section goes on to provide certain procedures for these negotiations. The key issue presented by your inquiry is whether a restriction on the use of tobacco by school employees deals with "working conditions" and is therefore subject to collective bargaining, or whether it deals with a matter of educational governance subject to direct regulation by the State Board.

At one time, the State Board was of the view that smoking restrictions affecting employees were the subject of mandatory bargaining. In an adjudicatory opinion issued in 1988, the State Board articulated "a balancing test to determine whether the interests of the employee in the topic or the interests of the school system as a whole in the topic are the greater. If the employee's interests outweigh the interests of the school community, it is a negotiable subject of bargaining. If the school system's interests predominate, it is a non-negotiable matter of educational policy which remains within the local board's control." State Board Opinion No. 88-4, at 3.3

Applying this balancing test, the State Board affirmed the conclusion of a hearing examiner "that a ban on smoking [in Frederick County

2
An identical provision applicable to noncertificated employees is set out in ED §6-510(b). 3 This balancing test is used whenever the school board is carrying out its general statutory duty to operate the school system, rather than a specific statutory duty related to the topic at issue. State Board Opinion at 2-3.

schools] 'does not involve a matter of education policy, for whether or not teachers are permitted to smoke in areas of school buildings set aside for their exclusive use has no bearing on the quality or content of the education of Frederick County children.'" State Board Opinion at 3-4. The tobacco-free school environment regulations strike the balance differently and overrule this prior opinion.4

The balancing test used in the State Board's 1988 opinion derives from Montgomery County Education Association, Inc. v. Board of Education of Montgomery County, 311 Md. 303, 534 A.2d 980 (1987), a case in which the Court of Appeals considered the boundaries of collective bargaining and the power of the State Board to determine what fell outside those boundaries. The issue in the case was the determination of the school calendar, but the decisional principles announced by the Court are pertinent here.

First, the Court held that ED §6-408, the collective bargaining statute, "may not be construed to encompass matters that predominantly concern the determination of educational policy or the administration of the public schools." 311 Md. at 318. Second, great deference is accorded to the State Board's expert determination whether a particular matter is outside ED §6-408: "Unless it is demonstrated in a particular case that the line drawn by the State Board under §6-408 is arbitrary, or clearly in violation of the Education Article, or otherwise contrary to law, the State Board's determination will normally be controlling." Id.

As the emphasized phrase from the Montgomery County case suggests, the authority of the State Board to circumscribe the reach of ED §6-408 is not linked solely to "educational policy" narrowly conceived, as the hearing examiner in the 1988 adjudication seemed to think. The hearing examiner's focus on the "quality or content of the education" of the school children did not take account of the possibility that management policy prerogatives over the school environment might be broader.5

4 When an agency, exercising its statutory discretion, reaches a policy conclusion by means of an adjudicatory opinion, it may later reach a different policy conclusion by means of a regulation, so long as the regulation is itself within the scope of the agency's authority. 2 Davis, Administrative Law Treatise §7:29 at 155 (2d ed. 1979). 5 The State Board's current regulations might well fit within even a narrow construction of "educational policy." Anti-smoking education surely has an important place in the curriculum, and the State Board might reasonably determine that inconsistent behavior on school premises by role models undermines the educational effort.

There is nothing arbitrary about the State Board's current regulatory determination that teachers' interest in smoking does not, in the words of the portion of the 1988 opinion that better captures the legal standard, "outweigh the interests of the school community." Few community interests could be greater than the health of school children. The State Board, in our view, had a reasonable basis for deciding that tobacco use on school premises predominantly concerns a matter of public school administration not subject to collective bargaining. Given the deference owed to such determinations, the Board's regulations are lawful.6

IV

Conclusion

In summary, it is our opinion that the State Board of Education has the statutory authority to adopt COMAR 13A.02.04, regulations requiring a tobacco-free school environment.

J. Joseph Curran, Jr.
Attorney General

Jack Schwartz
Chief Counsel
Opinions & Advice

6
Our conclusion is limited solely to the regulations in question; each issue concerning the scope of ED §6-408 must be analyzed in its own context.