Budgetary AdministrationBoard of Public Works – Administrative Law – Reduction of Appropriations –Whether the Board of Public Works May Reconsider its Prior Approval of Budget Reductions Proposed by the Governor Under Section 7-213 of the State Finance & Procurement Article –Whether the Board May Impose Certain Conditions on Approval of Such Reductions. ( 2021 )


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  • 38                                                 [106 Op. Att’y
    BUDGETARY ADMINISTRATION
    BOARD OF PUBLIC WORKS – ADMINISTRATIVE LAW –
    REDUCTION OF APPROPRIATIONS – WHETHER THE BOARD
    OF PUBLIC WORKS MAY RECONSIDER ITS PRIOR
    APPROVAL OF BUDGET REDUCTIONS PROPOSED BY THE
    GOVERNOR UNDER SECTION 7-213 OF THE STATE FINANCE
    & PROCUREMENT ARTICLE – WHETHER THE BOARD MAY
    IMPOSE CERTAIN CONDITIONS ON APPROVAL OF SUCH
    REDUCTIONS.
    March 22, 2021
    John T. Gontrum, Esquire
    Executive Secretary, Board of Public Works
    You have requested our opinion on two questions relating to
    the authority of the Board of Public Works (the “Board”) to
    approve the reduction of an appropriation in the budget under the
    Maryland statute that allows for such reductions. See Md. Code
    Ann., State Fin. & Proc. (“SFP”) § 7-213. First, you ask what
    authority the Board has to reconsider a reduction that it has
    approved. Second, you ask whether the Board, when approving a
    reduction, may provide that “the fulfillment of specified
    conditions” would either automatically rescind the Board’s
    approval of the reduction or automatically require that the Board
    reconsider the reduction.
    As to your first question, in our opinion, the Board may
    reconsider and rescind its vote approving a reduction under SFP
    § 7-213 up until the time the reduction takes effect. After a
    reduction takes effect, however, the Board lacks the power to
    reconsider its approval, rescind its approval, or otherwise restore
    the appropriation. As for when the reduction takes effect, a
    reduction implemented through a budget amendment under SFP
    § 7-209—the way that such reductions have historically been
    implemented—takes effect “when the Governor sends notice of
    the amended appropriation to the Comptroller.” SFP § 7-209(g).
    A reduction that is not implemented using the budget amendment
    procedures in § 7-209 would take effect when the Governor signs
    the document implementing the reduction, unless the document
    specifies an effective date, in which case the reduction would take
    effect on that date.
    Gen. 38]                                                           39
    As to your second question, there is significant uncertainty
    as to whether the Board may impose any conditions when
    exercising its authority under SFP § 7-213, let alone a condition
    that would result in automatic rescission or reconsideration of the
    Board’s approval of a budget reduction based on the future
    occurrence of some specified event. Although it is often the case
    that the express power of an agency to disapprove an action carries
    with it the implicit power to approve that action with conditions,
    we have serious doubts that the General Assembly intended to
    grant the Board authority to impose conditions under SFP § 7-213,
    given the Board’s especially narrow role under the statute and the
    constitutional questions that could arise by allowing the Board to
    impose conditions. While we cannot say with certainty that the
    Board categorically lacks the power to impose a condition
    providing for automatic rescission of its approval upon the
    occurrence of a specified event, the Board could achieve essentially
    the same result, without raising any questions as to the legality of
    its actions, simply by deferring a vote on the Governor’s proposed
    reductions (or declining to approve those reductions) until after the
    contemplated event has (or has not) come to pass. For that reason,
    we advise the Board against imposing any such conditions, given
    the legal uncertainty of that approach and the availability of an
    unquestionably legal alternative.
    I
    Background
    A.       The State Budget Process
    Maryland’s budget system was established in 1916 by an
    amendment to the State Constitution. Md. Const., Art. III, § 52;
    1916 Md. Laws, ch. 159. Under the present budget system, the
    Governor submits to the General Assembly each January a budget
    for the upcoming fiscal year, which shall “contain a complete plan
    of proposed expenditures and estimated revenues for said fiscal
    year,” 1 along with a budget bill containing all of the appropriations
    to authorize the proposed expenditures. Md. Const., Art. III,
    § 52(3) and (5). In developing the spending plan, the Governor
    may revise the spending estimates proposed by State agencies,
    1
    That “complete plan” is embodied in the budget books, a multi-
    volume publication that details the State’s annual operating budget,
    organized by unit of State government. Letter from Richard E. Israel,
    Assistant Attorney General, to the Honorable R. Clayton Mitchell,
    Speaker of the House of Delegates (Jan. 10, 1991).
    40                                                          [106 Op. Att’y
    except those for the General Assembly, for the Judiciary, and for
    the public schools, as provided by law. Id. § 52(11). Similarly, for
    those programs for which a law prescribes a level of funding, the
    Governor may not reduce the estimate below the level prescribed
    by law. Id. § 52(12). After the submission of the budget bill to the
    General Assembly (until it is finally acted upon), the Governor
    may, with the General Assembly’s consent, amend or supplement
    the budget bill. Id. § 52(5).
    Except for appropriations relating to the legislative and
    judicial branches, the General Assembly may only “strike out or
    reduce” items of appropriation. 2 Md. Const., Art. III, § 52(6). It
    may not amend the budget bill so as to increase an appropriation
    for an executive branch program. Id. If the General Assembly
    wants to initiate an appropriation for an executive branch program,
    it may do so only by way of a supplementary appropriation bill,
    which must be embodied in a separate bill limited to a single
    purpose and must levy a tax to support the appropriation. 3 Id.
    § 52(2) and (8). “In this manner the Governor and the General
    Assembly together, with the Governor having a preeminent role,
    enact a budget for the ensuing fiscal year based on departmental
    estimates of needs and on estimated revenues.” Judy v. Schaefer,
    
    331 Md. 239
    , 250 (1993). This design was meant to ensure a
    balanced State budget, and since 1974, Article III, § 52(5a) has
    “expressly mandate[d] that the Governor propose and maintain a
    balanced budget.” Judy, 
    331 Md. at 249
    . 4
    2
    The General Assembly may not amend the budget bill so as to affect
    State debt obligations, the provisions made by law for the establishment
    and maintenance of public schools, or the payment of constitutionally
    mandated salaries, nor may it amend the budget bill to decrease the salary
    or compensation of any public officer during the officer’s term of office.
    Md. Const., Art. III, § 52(6).
    3
    A constitutional amendment ratified by the voters at the general
    election on November 3, 2020, authorizes the General Assembly,
    beginning with the Fiscal Year 2024 budget bill, to increase or add items
    for executive branch programs, provided the total of appropriations for
    executive branch programs does not exceed the total proposed by the
    Governor. 2020 Md. Laws, ch. 645.
    4
    Subsection (5a) was added to Article III, § 52 by 1973 Md. Laws,
    ch. 745. It states:
    The Budget and the Budget Bill as submitted by the
    Governor to the General Assembly shall have a figure for
    the total of all proposed appropriations and a figure for the
    total of all estimated revenues available to pay the
    Gen. 38]                                                             41
    The State’s budget system was adopted at the recommendation
    of the Commission on Efficiency and Economy (known as the
    “Goodnow Commission”), which had been directed by the
    Democratic Party platform to consider two options for who would
    play that dominant role in the budget process, i.e., who would make
    the final budget estimates for submission to the General Assembly:
    either the Governor alone or the Board of Public Works, which is
    composed of the Governor, the Comptroller, and the Treasurer.
    Report of the Commission on Economy and Efficiency on a Budget
    System, Maryland Senate Journal, 1916 Sess., at 129-134 (Jan. 28,
    1916) (“Goodnow Report”); see also Alan M. Wilner, The
    Maryland Board of Public Works: A History 80 (1984). The
    rationale for selecting the Governor, rather than the Board, was
    explained in the Goodnow Report as follows:
    We have concluded that this responsibility
    should be placed upon the Governor. We
    have felt that to make use of the Board of
    Public Works as a Budget Commission would
    have the disadvantage of dissipating personal
    responsibility for financial propositions, and
    would also run the risk of not securing party
    responsibility.
    Goodnow Report at 131.
    appropriations, and the figure for total proposed
    appropriations shall not exceed the figure for total
    estimated revenues. Neither the Governor in submitting
    an amendment or supplement to the Budget Bill nor the
    General Assembly in amending the Budget Bill shall
    thereby cause the figure for total proposed appropriations
    to exceed the figure for total estimated revenues,
    including any revisions, and in the Budget Bill as enacted
    the figure for total estimated revenues always shall be
    equal to or exceed the figure for total appropriations.
    (emphasis added). This requirement is an ongoing one that applies not
    just at the time of the budget’s enactment. See Judy, 
    331 Md. at 260
    (rejecting as inconsistent with the language and history of Article III,
    § 52 the contention “that the balanced budget requirement was intended
    to apply only during the preparation of the budget and its passage”). At
    the same time, we have recognized that it is not “constitutionally
    necessary for the Budget to in fact be balanced subsequent to its
    enactment at every moment in time throughout the fiscal year.” 61
    Opinions of the Attorney General 59, 60 (1976) (emphasis in original).
    42                                                     [106 Op. Att’y
    B.       The Budget Reduction Statute
    Aside from the ongoing requirement to maintain a balanced
    budget, Article III, § 52 does not speak to the administration of the
    State budget after its enactment. It does, however, authorize the
    General Assembly to enact “such laws not inconsistent with” that
    section as may be “necessary and proper” to carry out its
    provisions. Md. Const., Art. III, § 52(13). Pursuant to that
    provision, the General Assembly has established a statutory
    scheme for the administration of the budget.
    Much of that statutory scheme is codified in Division I of the
    State Finance and Procurement Article. Title 7 deals with
    appropriations, and Subtitle 2 of Title 7 deals with the disbursement
    and expenditure of appropriated funds. Under those provisions,
    “[m]oney may be disbursed from the State Treasury only in
    accordance with the current appropriation for a program as
    amended from time to time in accordance with [Title 7].” SFP § 7-
    205. While “[t]he initial appropriation for a program is set forth in
    the appropriation act[,] . . . the appropriation for a program may be
    increased or reduced as provided in [Title 7, Subtitle 2].” SFP § 7-
    206.
    As is especially relevant here, there are two statutes that
    authorize the Governor to amend appropriations for executive
    branch programs after the enactment of the budget bill. First, under
    SFP § 7-209, the Governor may amend an appropriation for a
    program of the Office of the Governor or, on the request of an
    officer or unit of the Executive Branch, approve an amendment of
    an appropriation for a program of that officer or unit. This
    authority is subject to certain limitations. Most significantly, an
    amendment of an appropriation generally may not increase the sum
    of appropriations from the General Fund for all programs of the
    officer or unit. SFP § 7-209(c)(1). 5
    Second, the Governor also may amend an appropriation
    pursuant to SFP § 7-213, commonly known as the “budget
    reduction statute,” which allows the Governor, “with the approval
    of the Board of Public Works, [to] reduce, by not more than 25%,
    any appropriation: (i) that the Governor considers unnecessary; or
    (ii) that is subject to budgetary reductions required under the
    budget bill as approved by the General Assembly.” This authority
    5
    The exception to this rule is that an amendment may increase the
    sum of appropriations from the General Fund for all programs of the
    officer or unit if money from the Board’s Contingent Fund is transferred
    to the program. SFP § 7-209(c)(2).
    Gen. 38]                                                                43
    to reduce appropriations is subject to a number of exclusions. The
    Governor may not reduce an appropriation for the legislative or
    judicial branches, for the payment of the principal of or interest on
    State debt, for the public schools, the Maryland School for the Deaf
    or the Maryland School for the Blind, for the salary of public
    officers during their term of office or, except as provided in § 8-
    109 of the State Personnel & Pensions Article, for the salary of a
    non-temporary employee in the State Personnel Management
    System. SFP § 7-213(b). 6 Many of these exclusions mirror the
    provisions in Article III, § 52 that preclude the Governor from
    revising certain spending estimates in the proposed budget. See
    Md. Const., Art. III, § 52(11), (12).
    These statutory powers date back to the 1939 Budget and
    Procurement Act 7 and had earlier been enacted as part of the
    biennial budget bills. 8 See Judy, 
    331 Md. at 251-52
    ; Wilner, The
    Maryland Board of Public Works, supra, at 84-85. The first budget
    bill after the ratification of § 52, enacted at the 1918 session,
    provided that the “schedules” for each appropriation are to
    “represent the initial plan of distribution and apportionment of the
    appropriations to which they, respectively, refer,” but that “such
    Schedule may be amended” as provided therein. 1918 Md. Laws,
    ch. 206, § 3. This “concept of the budget bill being an ‘initial plan
    of disbursement’ has been an element of the executive budget
    system since its enactment.” Judy, 
    331 Md. at 252-53
    .
    During the Great Depression, so that the State could better
    respond to the effects of the Depression on the State’s finances,
    additional budget administration provisions, originally intended as
    emergency measures, were incorporated into the budget bills.
    Wilner, The Maryland Board of Public Works, supra, at 84; 65
    Opinions of the Attorney General 45, 46-48 (1980). The budget
    bills enacted during the legislative sessions of 1933 and 1935
    authorized the Board of Public Works to “supervise the expenditure
    6
    In interpreting the exclusion for an appropriation for the salary of a
    non-temporary employee in the State Personnel Management System,
    we have said that it does not preclude the elimination of funding for
    positions but merely preserves the procedures in § 8-109 of the State
    Personnel & Pensions Article for categorical decreases in rates of pay.
    76 Opinions of the Attorney General 330, 337 n.9 (1991); 75 Opinions
    of the Attorney General 366, 369 n.5 (1990).
    7
    1939 Md. Laws, ch. 64.
    8
    Until 1949, the General Assembly met every other year and would
    enact a budget bill covering the next two fiscal years.
    44                                                      [106 Op. Att’y
    of all appropriations . . . in [the] budget” and provided that “for that
    purpose the said Board shall have the power to reduce or eliminate
    any appropriation which it may deem unnecessary,” except
    appropriations for debt service or for the legislative or judicial
    branches. 1933 Md. Laws, ch. 597, § 11; 1935 Md. Laws, ch. 92,
    § 11. Similar authority was not included in the budget bill passed
    at the 1937 session, but the Budget and Procurement Act of 1939,
    which codified many of the budget administration provisions
    previously enacted in each budget bill, reinstituted the power to
    reduce appropriations, though it vested that authority in the
    Governor rather than the Board.
    The 1939 Act was originally codified as Article 15A. Section
    9 of former Article 15A is the direct predecessor to the current
    budget reduction statute, SFP § 7-213, and like the current statute
    it authorized the Governor, with the approval of the Board, to
    reduce by not more than 25% any item of appropriation that the
    Governor deemed unnecessary, except appropriations for certain
    purposes identified therein. 1939 Md. Laws, ch. 64. “The General
    Assembly [was] well aware of the problem in the 1930[s] and the
    possibility of its recurrence, [and it] enacted [the budget reduction
    statute] in 1939 in order to forestall the accumulation of deficits in
    subsequent fiscal years.” Judy, 
    331 Md. at 259
    . The purpose of
    that statute “is to enable the State to accommodate an unexpected
    decrease in anticipated State revenues and, notwithstanding the
    vagaries of the economy, to maintain a balanced budget, one of the
    principal goals of the framers of the Budget Amendment.” 65
    Opinions of the Attorney General at 48. 9
    While this Office has, on occasion, described the reduction
    statute as delegating to the Governor the General Assembly’s
    authority to “strike or reduce” items of appropriation in the budget,
    the Court of Appeals has observed that “it is not particularly useful
    to characterize” the statute as effecting a delegation of legislative
    authority, given that Article III, § 52 “greatly expanded the
    gubernatorial role” with respect to the State budget. Judy, 
    331 Md. at
    262 n.18. As the Court of Appeals put it, “[t]he authority given
    to the Governor in § 7-213 corresponds to the power vested in the
    Governor by Art. III, § 52,” and § 7-213 “merely allows the
    Governor to accomplish at the end of the budget process what he is
    required to do when he submits his initial budget.” Id. at 259-60.
    Indeed, the Court held that § 7-213 was a constitutional exercise of
    9
    For further discussion of the history of the budget reduction statute
    and the major State budgetary actions prompted by the economic
    depression of the 1930s, see 65 Opinions of the Attorney General at 46-
    48; Wilner, The Maryland Board of Public Works, supra, at 84-87.
    Gen. 38]                                                           45
    the General Assembly’s power to enact laws “not inconsistent
    with” Article III, § 52, in part because the statute was consistent
    with the preeminent role given to the Governor over the budget
    under the Maryland Constitution. More specifically, the Court
    explained:
    the statute recognizes and perpetuates the
    preeminent role of the Governor in the budget
    process, a role considered by the Goodnow
    Commission to be “fundamental . . . for a
    sound budget system.” Furthermore, because
    § 7-213 furthers the requirement of
    maintaining a balanced budget throughout the
    fiscal year, it is precisely the type of
    legislation which the framers of Art. III, § 52,
    contemplated.
    Id. (citations omitted).
    It is evident from the plain language of § 7-213, as well as the
    cases and our opinions interpreting the statute, that the authority to
    make reductions to appropriations is vested exclusively in the
    Governor, subject to the limitations set out in statute, including the
    limitation that the Governor may reduce an appropriation only after
    securing the Board’s approval. Under the budget reduction statute,
    “the Governor, and only the Governor, can reduce appropriations
    in the budget up to 25% after the budget has been enacted.”
    Workers’ Comp. Comm’n v. Driver, 
    336 Md. 105
    , 119 (1994). As
    our Office has long explained, therefore, the Board “may not
    substitute its own reductions for those of the Governor,” Letter
    from J. Joseph Curran, Jr., Attorney General, to William S.
    Ratchford, II, Director, Dep’t of Fiscal Services, at 3 (Oct. 3, 1991)
    (“Curran Letter”), though the Board may decline to approve one or
    more of the Governor’s proposed reductions or may seek to
    persuade the Governor to change the proposal.
    C.   The Board of Public Works
    The Board of Public Works, which consists of the Governor,
    Comptroller, and Treasurer, is established by Article XII of the
    Maryland Constitution. Although established by the Constitution,
    the powers and duties specifically vested in the Board by the
    Constitution are quite narrow and “are now largely obsolete.”
    Building Materials Corp. of Am. v. Board of Educ. of Baltimore
    County, 
    428 Md. 572
    , 578 n.4 (2012). Apart from the Board’s
    46                                                   [106 Op. Att’y
    limited duties relating to certain canal and railroad companies, it
    exercises only those powers that are conferred on it by the General
    Assembly. See Md. Const., Art XII, § 1 (providing for the creation
    of the Board to “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”); 76 Opinions of the Attorney
    General 46, 49 (1991) (“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. . . .”); 62 Opinions of
    the Attorney General 716, 725-27 (1977) (concluding that the
    Board’s powers with respect to the “Public Works of the State” are
    “circumscribed by the Legislature”); see also Truitt v. Board of
    Public Works, 
    243 Md. 375
    , 388 (1966) (holding that the Board, in
    executing administrative functions, is subject to “the operation of
    the legal principles applicable to administrative agencies”).
    II
    Analysis
    A.   Reconsideration of the Board’s Approval
    You have first asked for guidance regarding the Board’s
    authority to reconsider a prior vote to approve the reduction of an
    appropriation pursuant to SFP § 7-213. We have answered this
    question before, though not in the form of an official opinion of the
    Attorney General. In a 1991 letter of advice, Attorney General
    Curran expressed the view that the Board was free to reconsider
    and rescind its approval up until the time the reduction takes effect.
    Curran Letter at 3. On that occasion, the Board had approved, the
    day earlier, the Governor’s plan to reduce a number of
    appropriations for Fiscal Year 1992, with the reductions to be
    implemented by way of a master budget amendment under SFP
    § 7-209. In concluding that the Board could reconsider its approval
    of the reductions, the Attorney General explained:
    Under accepted principles of parliamentary
    law, a public body may reconsider an action
    until that action has gone into effect or the
    matter is beyond the control of the body. In
    the absence of a rule adopted by the body,
    there is no time limit on a motion to
    reconsider. The general principle is that “all
    deliberative bodies have a right . . . to
    reconsider their proceedings as they deem
    Gen. 38]                                                          47
    proper, and it is the final result only which is
    to be regarded as the thing done.”
    Because the Governor’s reduction plan
    contemplates that it will be implemented by
    the processing of a master administrative
    budget amendment under § 7-209 of the State
    Finance and Procurement Article, it is our
    view that the Board’s action will not have
    gone into effect until it is implemented as
    proposed, when the Governor’s master budget
    amendment takes effect. Thus, until that time,
    the Board could reconsider its decision.
    However, once the budget amendment has
    become effective, the appropriation schedules
    will have been revised in accordance with the
    Board’s approval of the Governor’s decision
    and the time for reconsideration will have
    passed.
    After the time for reconsideration has passed,
    the Board may not act to restore any of the
    appropriations that were reduced. Unlike the
    General Assembly, the Board has no plenary
    authority to revisit past decisions. It has only
    the authority given it by statute, and neither
    § 7-213 nor any other statute authorizes it to
    restore an appropriation once it has been
    reduced.
    Curran Letter at 3 (alterations in original) (footnotes and citations
    omitted).
    We agree with that basic premise, i.e., that the Board may
    reconsider its approval of a reduction under § 7-213 up until the
    time the reduction takes effect. When the Board votes on the
    Governor’s proposed reduction, its actions are quasi-legislative in
    nature. Judy, 
    331 Md. at 266
    . A body acting in a legislative or
    quasi-legislative capacity, in turn, generally possesses the inherent
    power to reconsider and rescind its actions until the relevant action
    has been completed or the matter is otherwise beyond the control
    of the body, provided that vested rights of third parties are not
    violated and rescission is consistent with applicable law and the
    rules governing the body. See Dal Maso v. Board of County
    Comm’rs of Prince George’s County, 
    182 Md. 200
    , 206-07 (1943)
    48                                                      [106 Op. Att’y
    (explaining that “boards and agencies to which legislative power
    has been delegated . . . may undo, consider and reconsider their
    action upon measures before them,” at least “before the rights of
    third parties have vested” and “in the absence of statute or a rule to
    the contrary”); see also State v. Womack, 
    29 P. 939
    , 942 (Wash.
    1892) (“[T]he general rule is that a legislative or deliberative body
    of any kind has power to reconsider any of its actions. When not
    regulated by statute, the body has a right to adopt its own rules as
    to the time when reconsideration can be moved.”); 4 McQuillin
    Mun. Corp. § 13:75 (3d ed.) (“[T]he legislative body of [a
    municipal] corporation, or any of its boards or departments,
    possesses the unquestioned power to rescind prior acts[] and votes
    at any subsequent time until the act or vote is complete, provided
    vested rights are not violated, and that such rescission is in
    conformity to the law applicable and the rules and regulations
    adopted for the government of the body.”); Mason’s Manual of
    Legislative Procedure § 451 (2010) (explaining that, although a
    legislative body generally may reconsider its actions, “[a]n action
    cannot be reconsidered when, for any reason, it is not possible to
    cancel, nullify, or void the action previously taken”). 10
    Applying those general principles here, neither § 7-213 nor
    any other statute prohibits the Board from reconsidering its vote to
    approve a reduction. It is also our understanding that the Board has
    not adopted any formal procedures that would prohibit it from
    reconsidering its vote. As such, the Board may exercise its usual
    procedures for reconsideration, so long as the reduction has not yet
    been carried out and the matter remains within the Board’s control.
    Once the reduction has gone into effect, however, the Board
    cannot undo the reduction. When the Governor reduces an
    appropriation with the approval of the Board under § 7-213, the
    10
    Conversely, when an administrative body acts in a quasi-judicial
    capacity and “is not otherwise constrained,” it generally “may reconsider
    an action previously taken and come to a different conclusion upon a
    showing that the original action was the product of fraud, surprise,
    mistake, or inadvertence, or that some new or different factual situation
    exists that justifies the different conclusion,” but not upon a “mere
    change of mind.” Calvert County Planning Comm’n v. Howlin Realty
    Mgmt., Inc., 
    364 Md. 301
    , 325 (2001). That standard might also apply
    to quasi-legislative actions when the standard is made applicable by law.
    See Kay Const. Co. v. County Council for Montgomery County, 
    227 Md. 479
    , 484, 486 (1962) (involving a zoning ordinance that allowed for
    reconsideration of certain quasi-legislative actions when “good cause
    [was] shown” and analogizing to the rule for reconsideration of quasi-
    judicial decisions).
    Gen. 38]                                                                49
    effect of the action is to extinguish the legal authorization to
    withdraw those funds from the Treasury. See Judy, 
    331 Md. at
    259-
    60, 264-66; see also 76 Opinions of the Attorney General 330, 337-
    39 (1991) (explaining that “when the funding for a position is
    eliminated under the direct or delegated authority of Article III,
    § 52 of the Constitution, the action is a legislative act with the force
    of law” and that following the budget reduction “no appropriation
    would exist” for the position); cf. 21 Opinions of the Attorney
    General 218, 219 (1936) (concluding, at a time when the Board
    had primary authority over budget reductions, that when an
    appropriation is reduced the amount of the reduction “reverts to the
    General Treasury of the State”). At that point, the relevant action
    has been completed, and there is no longer anything for the Board
    to reconsider, as neither § 7-213 nor any other statute authorizes
    the Board to restore an appropriation. 11 In other words, any attempt
    by the Board to rescind its approval after the reduction has gone
    into effect would be a legal nullity. 12
    The next question, then, is when a reduction, as approved by
    the Board, goes into effect. The usual practice has apparently been
    to implement budget reductions as budget amendments under SFP
    § 7-209. As to when such a budget amendment takes effect—
    thereby implementing the reduction and precluding any
    reconsideration—Attorney General Curran advised in a footnote to
    his 1991 letter that a budget amendment goes into effect on the
    effective date stated in the amendment or, if the amendment is
    silent about an effective date, when the Governor signs it. Curran
    11
    We need not decide when, in other contexts, an action is sufficiently
    complete or beyond the control of a quasi-legislative body such that it
    can no longer be reconsidered. That may vary from context to context.
    12
    As was the case in 1991, we are not called upon to address whether
    a statutory scheme that authorized the Board to restore an appropriation
    would be constitutional, because there is nothing in the statute that
    provides for such a restoration. Nonetheless, we think it worthwhile to
    offer a few observations. When the Governor reduces an appropriation
    with the approval of the Board under § 7-213, the legal authorization to
    withdraw those funds from the Treasury is eliminated. Judy, 
    331 Md. at 259-60
    . To the extent the act of restoring a previously reduced
    appropriation would amount to a new appropriation, that action would
    have to comply with the constitutional provisions governing the
    withdrawal of money from the Treasury, namely Article III, § 32, which
    prohibits the withdrawal of money from the Treasury except “in
    accordance with an appropriation by Law,” and Article III, § 52, which
    provides that any law appropriating money from the Treasury “shall be
    either a Budget Bill, or a Supplementary Appropriation Bill.”
    50                                                      [106 Op. Att’y
    Letter at 3 n.1. On this particular point, however, we reach a
    different conclusion. Section 7-209(g) expressly states that “[a]n
    amended appropriation for a program is effective when the
    Governor sends notice of the amended appropriation to the
    Comptroller.” Thus, by the terms of the statute, a reduction
    implemented by budget amendment under § 7-209 takes effect
    when the Governor sends notice to the Comptroller, and it is our
    opinion that the Governor cannot provide otherwise by specifying
    a different effective date.
    That said, § 7-209(g) is controlling on the question of when a
    reduction takes effect only if the reduction is processed as a budget
    amendment under that section. Although that is the usual practice,
    it does not appear that any provision of State law requires that a
    budget reduction approved under § 7-213 be implemented through
    a budget amendment under § 7-209 or that the procedures of § 7-
    209 be followed in implementing budget reductions, which are
    governed by a separate statutory provision.
    If a budget reduction were to be processed in a different way,
    without reference to the budget amendment procedures in § 7-209,
    then the rule setting the effective date for budget amendments in
    § 7-209(g) would not apply. 13 In that event, consistent with what
    Attorney General Curran suggested in his 1991 advice letter, the
    reduction would likely go into effect on the effective date stated in
    the document implementing the reduction or, if the document does
    not specify an effective date, then on the date when the Governor
    signs the document. See Curran Letter at 3 n.1; cf. Lapeyre v.
    United States, 84 U.S. (17 Wall.) 191, 198-99 (1872) (plurality)
    (holding, based on historical practice, that a presidential
    proclamation took effect on the date that the President signed the
    proclamation and filed it with the Secretary of State); City of
    Atlanta v. Mays, 
    801 S.E.2d 1
    , 5 (Ga. 2017) (articulating a default
    rule that “a municipal ordinance becomes effective when it is
    signed and filed by the Mayor unless there is a constitutional or
    13
    Although you did not ask, and we do not decide, exactly what an
    alternative process for implementing a reduction approved under § 7-213
    might look like, we suspect that the Governor would have a fair amount
    of discretion in how such a reduction might be implemented, though it
    would presumably need to involve some form of notice to the
    Comptroller, as the officer responsible for issuing warrants for payment
    and charging them to appropriations. See SFP §§ 7-216, 7-220. Of
    course, if the Governor’s overall reduction plan also involves moving
    funds between programs as contemplated by a budget amendment under
    § 7-209 in addition to budget reductions, that aspect of the plan at least
    would have to be processed as a budget amendment under § 7-209.
    Gen. 38]                                                           51
    general statutory provision governing the matter”); 5 McQuillin
    Mun. Corp. § 15:37 (3d ed.) (“The common rule in regard to
    legislation is that it shall take immediate effect unless otherwise
    provided.”); Letter from Richard E. Israel, Assistant Attorney
    General, to Sen. Richard F. Colburn (July 31, 1997) (concluding
    that common-law rule in Maryland under the Constitution of 1776
    was that statutes took effect from the date of passage unless
    otherwise specified).
    B.        Conditional Approval of Reduction
    Your second question is whether the Board can condition its
    approval of the Governor’s decision to reduce an appropriation
    such that “the fulfillment of specified conditions” would
    automatically rescind the Board’s approval or require that the
    Board reconsider the reduction(s). Although you do not explain in
    the request what “specified conditions” the Board might have in
    mind, it is our understanding that the specified conditions would
    likely relate to new factual information reflecting the fiscal health
    of the State, such as actual revenue taken in by the State, the
    amount of the next revenue estimates issued by the Board of
    Revenue Estimates, or the projected budget shortfall based on those
    revenue estimates. 14
    In answering this question, the first issue that must be
    resolved is whether the Board has any power to place conditions on
    its approval at all. If the Board has the power to impose conditions
    under at least some circumstances, the next step of the analysis is
    to identify what limitations there are on the Board’s power. The
    final step is to determine whether the Board can condition its
    approval to provide for automatic rescission or to require that the
    Board reconsider the reduction(s).
    As to whether the Board can condition its approval, that is
    primarily a question of legislative intent. See Board of Liquor
    License Comm’rs for Baltimore City v. Hollywood Prods., Inc., 
    344 Md. 2
    , 10-11 (1996). The “primary source of legislative intent is,
    14
    The Board of Revenue Estimates consists of the Comptroller, the
    Treasurer, and the Secretary of Budget and Management. SFP § 6-102.
    It submits to the Governor and General Assembly each December,
    March, and September a report that contains an itemized statement of
    estimated State revenues. SFP § 6-106. For the purpose of preparing
    those reports, the Board studies the revenue estimates prepared by the
    Bureau of Revenue Estimates in collaboration with the Consensus
    Revenue Monitoring and Forecasting Group. SFP §§ 6-104 to 6-106.
    52                                                      [106 Op. Att’y
    of course, the language of the statute itself.” Tucker v. Fireman’s
    Fund Ins. Co., 
    308 Md. 69
    , 73 (1986). Here, there is also the
    further consideration of whether the statute, if read to permit the
    Board to impose conditions, would be “inconsistent with” Article
    III, § 52, and thus invalid under that constitutional provision. See
    Judy, 
    331 Md. at 259-60
    .
    Starting with the language of the statute, the text of SFP § 7-
    213 is silent on this point. It neither expressly authorizes the Board
    to approve a reduction with conditions nor expressly prohibits the
    Board from doing so. We must thus determine whether the power
    to impose conditions—including the specific type of condition
    about which you ask—is implicit in the statutory scheme.
    Although the Board in this context has only the powers and
    duties granted to it by the Legislature, 76 Opinions of the Attorney
    General at 49, the general rule in Maryland is that an agency, in
    addition to having the powers expressly granted by statute, has all
    of the powers that are necessary to, fairly implied by, or incident to
    the exercise of its express powers and duties. See, e.g., River Walk
    Apartments, LLC v. Twigg, 
    396 Md. 527
    , 543 (2007); Department
    of Econ. & Emp’t Dev. v. Lilley, 
    106 Md. App. 744
    , 760 (1995); 73
    C.J.S. Public Admin. Law & Proc. § 150. That is, an agency
    generally has “reasonable discretion to carry out ‘fairly implied’
    powers incident to those duties or authority expressly granted.”
    Town of La Plata v. Faison-Rosewick LLC, 
    434 Md. 496
    , 523
    (2013). 15 An agency may not, however, exercise any power which
    is “inconsistent or out of harmony with” the statute being
    15
    Although some of our prior opinions state that implied powers must
    be “necessary” to carry out the agency’s express powers and duties, see,
    e.g., 76 Opinions of the Attorney General 137, 137-38 (1991), it does not
    appear that strict necessity is required. Rather, the Court of Appeals
    seems to use the terms “necessary,” “fairly implied,” and “incident to”
    interchangeably when evaluating an agency’s implied powers. See
    Twigg, 
    396 Md. at 543
    ; Faison-Rosewick, 434 Md. at 523. Thus, the
    term “necessary” apparently refers to something like reasonable
    necessity. See Faison-Rosewick, 434 Md. at 523-24 (finding that an
    officer had the implied power to exercise “reasonable means” to carry
    out an express duty); Lilley, 106 Md. App. at 760 (“An expressed
    legislative grant of power or authority to an administrative agency
    includes the grant of power to do all that is reasonably necessary to
    execute that power or authority.” (internal quotation marks omitted)); cf.
    64 Opinions of the Attorney General 229, 231 (1979) (explaining in the
    context of a delegation from an agency head to a subordinate that “a
    delegation of authority includes not only express powers, but also those
    necessarily implied and reasonably necessary to effectuate the express
    powers granted to a delegatee”).
    Gen. 38]                                                          53
    administered. Insurance Comm’r v. Bankers Indep. Ins. Co., 
    326 Md. 617
    , 624 (1992).
    Under that standard, the extent of an agency’s implied powers
    can sometimes depend on the breadth of the express powers
    provided to that agency. See Thanner Enters. v. Baltimore County,
    
    414 Md. 265
    , 279 (2010). When the General Assembly has
    delegated broad express authority to an agency in an area, for
    example, courts will typically construe the scope of the agency’s
    implied powers in that area broadly as well. See, e.g., Lussier v.
    Maryland Racing Comm’n, 
    343 Md. 681
    , 688 (1996); Christ ex rel.
    Christ v. Maryland Dep’t of Nat. Res., 
    335 Md. 427
    , 440 (1994);
    McCullough v. Wittner, 
    314 Md. 602
    , 610-12 (1989). By contrast,
    when an agency has been delegated only narrow authority by the
    Legislature, the agency’s implied powers may be narrower. See,
    e.g., 62 Opinions of the Attorney General at 724-28 (concluding
    that the Board of Public Works did not have the implied power to
    require an agency to negotiate with a particular firm, because the
    statute “committed to the [agency]” the responsibility to conduct
    the selection process and limited the Board’s role to merely
    approving or disapproving the agency’s proposed firm). And at the
    far end of the spectrum, when the Legislature has decided to
    “closely control by statute even the more detailed aspects” of the
    agency’s authority, that sort of “comprehensive statutory scheme”
    suggests that the agency’s implied authority is “more
    circumscribed than the typical administrative body.” Hollywood
    Prods., 
    344 Md. at 13
     (involving a local liquor board).
    The touchstone for determining whether an agency has the
    implied authority to take a particular action is ultimately “the
    General Assembly’s intent in empowering an agency and the
    statutory scheme under which the agency acts.” Thanner Enters.,
    
    414 Md. at 279
     (quoting Hollywood Prods., 
    344 Md. at 11
    ); see
    also Lussier, 
    343 Md. at 686
     (“[I]n determining whether a state
    administrative agency is authorized to act in a particular manner,
    the statutes, legislative background and policies pertinent to that
    agency are controlling.”).
    The basic question here, then, is whether the power to place
    conditions on its approval is “fairly implied” from the Board’s
    power to approve or disapprove a reduction to the budget proposed
    by the Governor under SFP § 7-213. To answer that question, we
    look first to the general rules governing the power of administrative
    agencies to impose conditions and second to how those general
    rules might apply to the more specific context at hand.
    54                                                   [106 Op. Att’y
    As a general rule, the federal courts and courts in other states
    have often held that “[t]he power to approve implies the power to
    disapprove and the power to disapprove necessarily includes the
    lesser power to condition an approval.” Southern Pac. Co. v.
    Olympian Dredging Co., 
    260 U.S. 205
    , 208 (1922) (concluding
    that the Secretary of War had the power to impose a condition on
    his approval to construct a bridge over the waters of the United
    States in light of his power to disapprove construction of the bridge
    entirely); see also Mello v. License Comm’n of Revere, 
    759 N.E.2d 1201
    , 1203 (Mass. 2001); State v. Crown Zellerbach Corp., 
    602 P.2d 1172
    , 1175 (Wash. 1979) (en banc); Turf Paradise, Inc. v.
    Arizona Racing Comm’n, 
    772 P.2d 595
    , 598 (Ariz. Ct. App. 1989);
    N.C. Op. Att’y Gen., 
    2003 WL 1154487
    , at *4 (Feb. 18, 2003).
    Although the Maryland courts have not yet articulated that
    rule in precisely that way, they have recognized the same general
    principle, or at least a similar principle, in various contexts. See,
    e.g., In re Diener, 
    268 Md. 659
    , 683 (1973) (concluding that the
    grant of the “greater power” to the Commission on Judicial
    Disabilities under the Constitution to recommend that a judge be
    removed “impliedly includes the lesser” power to recommend that
    a judge be sanctioned); County Council of Montgomery County v.
    Lee, 
    219 Md. 209
    , 215 (1959) (concluding that “the right to grant
    or withhold permission for the paving of Galena Road . . . carries
    with it the right to prescribe reasonable terms and conditions upon
    which the permit would issue”); Blaker v. State Bd. of Chiropractic
    Examiners, 
    123 Md. App. 243
    , 264-65 (1998) (concluding that the
    power of the Board of Chiropractic Examiners to place a licensee
    on probation, which was expressly conferred on the Board,
    necessarily included the implicit authority to place terms and
    conditions on probation, since without that authority the Board
    could not monitor licensees and protect the public from harm).
    A variation on that general principle has been applied by the
    Court of Appeals (and by our Office) in defining the scope of the
    General Assembly’s constitutional powers to “strike out or reduce”
    items in the budget bill. More specifically, both the Court of
    Appeals and our Office have long reasoned that the General
    Assembly’s power to “strike out or reduce” items of appropriation
    includes the lesser power “to condition or limit the use of money
    appropriated, or the use of the facility for which the money is
    appropriated.” Bayne v. Secretary of State, 
    283 Md. 560
    , 574
    (1978); see also Kopp v. Schrader, 
    459 Md. 494
    , 509 (2018); 37
    Opinions of the Attorney General 139, 141-42 (1952). Thus, in
    acting on the budget bill, the General Assembly may approve a
    proposed item of appropriation by enacting the bill without
    Gen. 38]                                                                 55
    amendment, it may disapprove a proposed item in whole or in part
    by exercising its express power to “strike out or reduce,” or it may
    exercise its lesser power to approve a proposed item subject to
    limitations or conditions, with the caveat that the power to
    condition appropriations is constrained to some degree by the
    purpose of Article III, § 52 and the design of the constitutional
    budget process. 16 See also 101 Opinions of the Attorney General
    35, 55 (2016) (recognizing that, as to local governments too,
    “[n]ormally, the authority to appropriate funds—and to reduce or
    eliminate an appropriation—includes an implicit authority to set
    conditions”).
    More to the point, we have also found that similar principles
    apply to the Board of Public Works itself, concluding in a series of
    opinions that the Board had implied authority under various
    statutory schemes to impose conditions or other requirements in
    light of its express authority to approve or disapprove actions
    pursuant to those statutes. See 64 Opinions of the Attorney General
    118, 121-23 (1979) (concluding that the Board of Public Works,
    given its broad powers over the school construction program, “may
    condition the acceptance of funds [by local jurisdictions] under the
    [program] in any manner that it considers necessary to assure the
    proper operation of the program and the prudent expenditure of
    State funds”); 62 Opinions of the Attorney General 743, 747 (1977)
    (concluding that, because the Board of Public Works had the power
    “to discharge a portion of the indebtedness of . . . community
    colleges” under a statute allowing it to settle obligations owed to
    the State, the Board “was also empowered to condition its decision
    in any manner reasonably designed to further the public interest”
    behind the statute); 61 Opinions of the Attorney General 491, 492,
    494 (1976) (concluding that a statute that allowed the University of
    16
    To be valid, a condition or limitation (1) must be “directly related
    to the expenditure of the sum appropriated,” (2) may not “in essence,
    amend either substantive legislation or administrative rules adopted
    pursuant to legislative mandate,” and (3) may be “effective only during
    the fiscal year for which the appropriation is made.” Bayne, 
    283 Md. at 574
    ; see also Schrader, 459 Md. at 509. This prohibition on “legislating
    in the budget,” though not expressly articulated in the Constitution, is
    grounded in the limited function of the budget bill, which is to
    appropriate money, not to legislate generally, the General Assembly’s
    limited power to strike out or reduce items of appropriation, and the fact
    that the budget bill, unlike substantive legislation, is not subject to veto
    by the Governor. Schrader, 459 Md. at 507, 509-10.
    56                                                         [106 Op. Att’y
    Maryland to expend certain surplus revenues “only if and as it
    secures the written approval of the Board of Public Works”
    authorized the Board to impose certain “requirement[s]” over the
    expenditure of those revenues).
    The general principle on which those court decisions and
    opinions of the Attorney General rely, however, is not absolute.
    See, e.g., Board of Liquor License Comm’rs for Baltimore City v.
    Fells Point Cafe, Inc., 
    344 Md. 120
    , 135-37 (1996) (concluding
    that the liquor board’s power to grant or transfer a liquor license
    did not include the power to impose restrictions on the license,
    because liquor boards do not have broad implied powers under the
    comprehensive legislative scheme governing such boards). 17 The
    touchstone, as with all questions about the scope of an agency’s
    implied powers under a statute, remains “the General Assembly’s
    intent in empowering an agency and the statutory scheme under
    which the agency acts.” Thanner Enters., 
    414 Md. at 279
    . That is,
    we are guided by the “fundamental premise” that “the actions of an
    administrative agency must be consistent with the statute that
    grants it the authority to act.” 70 Opinions of the Attorney General
    135, 135 (1985).
    The power of an agency to disapprove thus may imply the
    “lesser” power to approve with conditions, at least as a general rule,
    but only if the grant of such an implied power to the agency would
    be consistent with the purpose of the statute, with the structure of
    the broader statutory scheme, and with the agency’s role under the
    statute. In particular, the breadth of the agency’s express authority
    remains an important factor in determining the General Assembly’s
    intent as to the scope of implied powers. See Thanner Enters., 
    414 Md. at 279
    . And depending on the circumstances, it may also be
    less likely for an agency to have implied powers when those
    implied powers would conflict with or intrude upon express powers
    vested in another entity or official. See 96 Opinions of the Attorney
    General 36, 47-48 (2011) (reasoning that a county’s power to
    create offices does not imply power to call special election to fill
    them, in part because General Assembly has reserved the power to
    regulate elections); 62 Opinions of the Attorney General at 724-28
    (concluding that Board of Public Works lacked authority to order
    negotiations between the Transit Administration and particular
    17
    See also Michael Herz, Justice Byron White and the Argument That
    the Greater Includes the Lesser, 1994 B.Y.U. L. Rev. 227, 242, 244-47
    (1994) (pointing out that the argument that the greater power includes
    the lesser is not always logically sound, including, for example, when
    the purported “lesser” power is not, in fact, a subset of the “greater” one).
    Gen. 38]                                                            57
    bidders because the Board could not “intrud[e] into the selection
    process which the Legislature intended to be conducted” by the
    Transportation Professional Services Selection Board). 18
    Under the budget reduction statute that is at issue here, the
    Board’s role is a narrow one: to approve or disapprove the
    reductions proposed by the Governor. See Curran Letter at 3. It is
    the Governor, rather than the Board, who has been given the
    discretion under the statute to determine which reductions to
    propose. See SFP § 7-213 (allowing the Governor, “with the
    approval of the Board of Public Works, [to] reduce, by not more
    than 25%, any appropriation . . . that the Governor considers
    unnecessary” (emphasis added)). The Board merely acts as a
    check, albeit an important one, on the Governor’s broad discretion.
    See Judy, 
    331 Md. at 264
     (characterizing Board approval as one of
    the “safeguards” that “circumscribe the Governor’s exercise of
    authority while allowing a necessary degree of flexibility”). The
    Board’s role in approving budget reductions, relative to the
    Governor, is thus not directly comparable to the General
    Assembly’s power to “strike out or reduce” items in the Governor’s
    budget proposal. In that context, the General Assembly may decide
    for itself which items to strike or reduce and the amount of any
    reductions, see Md. Const., Art. III, § 52(6), whereas the Board is
    limited under SFP § 7-213 to approving or disapproving the
    reductions proposed by the Governor.
    The narrowness of the Board’s role under the budget
    reduction statute is perhaps further underscored by the fact that
    predecessor versions of the statute, enacted as part of the budget
    bills in 1933 and 1935, had vested the Board with the plenary
    power to “reduce or eliminate any appropriation which it may deem
    unnecessary,” rather than vesting the Governor with the primary
    responsibility for making such reductions and giving the Board a
    secondary role in approving the reductions. See Part I.B, supra
    (citing 1933 Md. Laws, ch. 597, § 11; 1935 Md. Laws, ch. 92,
    § 11). That shift may suggest a conscious choice on the
    Legislature’s part to limit the Board’s power and to maintain the
    Governor’s “preeminent role,” Judy, 
    331 Md. at 259
    , in the budget
    process, constrained only by the up-or-down approval or
    disapproval of the Board.
    18
    But see Board of Physician Quality Assurance v. Banks, 
    354 Md. 59
    , 75 (1999) (noting that, depending on the statutes at issue, “[m]ore
    than one administrative agency can have jurisdiction over a matter”).
    58                                                         [106 Op. Att’y
    Under this particular statute, therefore, the Board has far more
    limited powers than was the case in our prior opinions finding that
    the Board had the implied power to impose conditions on its
    approval of certain actions. See 64 Opinions of the Attorney
    General at 121-23 (involving the Board’s “plenary and supreme”
    authority over the disposition of surplus schools); 62 Opinions of
    the Attorney General at 743 (involving the Board’s broad authority
    to settle obligations owed to the State); cf. 61 Opinions of the
    Attorney General at 492-94 (involving a statute that allowed the
    University of Maryland to expend certain funds only “if and as it
    secures the written approval of the [Board],” which implied an
    intent to give the Board at least some control (emphasis added)).
    That narrower role suggests that the Board might not have the
    same implied power to impose conditions on its approval in this
    context as it has in many others. For example, we found that the
    Board’s implied powers were more narrow under a statute that
    granted the Board the narrow role of approving or rejecting the
    contractor proposed by an agency, at least in part because the
    decision about which firm to recommend to the Board was
    committed to the discretion of that other agency (the Transportation
    Professional Services Selection Board) under a statute that had
    “precisely set out” the mechanics of the scheme. See 62 Opinions
    of the Attorney General at 723-28. In our view, given the Board’s
    narrow role under the statute, it did not have the implied power, in
    rejecting a proposed firm, to direct the agency to negotiate with the
    “second most qualified” bidder, as such an act would “intrud[e]”
    into the selection process that had been committed to the agency. 19
    19
    Although that opinion made clear that the scope of the Board’s
    implied powers were narrower than under some other statutes, it did not
    resolve whether the Board had the power to impose conditions on its
    approval and, if so, what kinds of conditions. In fact, the opinion noted in
    passing that the Board had previously imposed a condition on its approval
    of a contract under the statute, providing that the contract be subject to the
    approval of the federal agency that had given grant funding for the project,
    without questioning the Board’s power to impose that condition. 62
    Opinions of the Attorney General at 721. However, there was no
    discussion about the Board’s authority to impose such a condition, and the
    need for such a condition might have been implicit in the federal scheme,
    rather than the State scheme. See 
    id.
     (noting that absent the approval of
    the federal entity, “there will be no federal participation in the expense of
    the [relevant part of the project], which would then have to be funded
    solely by the State”). In the interest of completeness, we also note here
    that we advised in that opinion that the Board could provide “guidance” to
    the agency for it to consider when choosing another firm after the first firm
    was rejected, even though the Board could not require the agency to
    recommend a particular firm. Id. at 728.
    Gen. 38]                                                               59
    Id. The statutory scheme that we considered in that opinion is
    somewhat similar to the statutory scheme at issue here, under
    which the decision to propose certain reductions is committed to
    the discretion of the Governor and the Board’s role is limited to
    approving or disapproving the proposed reductions.
    What is more, the precedents cited above for the principle that
    the power to disapprove implies the power to impose conditions
    also seem to involve administrative schemes under which the
    agency in question had far broader regulatory or supervisory
    authority than does the Board under SFP § 7-213. See, e.g., Lee,
    
    219 Md. at 215
     (involving Montgomery County’s “full and
    complete jurisdiction over its streets and roads”); Blaker, 123 Md.
    App. at 264-65 (involving the broad authority of the Board of
    Chiropractic Examiners to license and discipline practitioners);
    accord Southern Pac. Co., 
    260 U.S. at 208
     (involving the broad
    powers of the Secretary of War over the waters of the United
    States); Mello, 759 N.E.2d at 1203 (involving a broad licensing
    power); N.C. Op. Att’y Gen., 
    2003 WL 1154487
    , at *4 (involving
    statutory scheme that granted insurance commissioner “broad
    powers to fulfill his obligations”). Although that does not mean
    that agencies without as broad authority will never have the implied
    power to impose conditions on their approval, it does mean that the
    law is not clear as applied to the Board’s especially narrow role
    under the budget reductions statute.
    If the Board had authority to impose conditions on its
    approval of the Governor’s proposed budget reductions, that might
    also raise constitutional questions, at least under some
    circumstances. As noted above, the Court of Appeals found that
    SFP § 7-213 is a valid exercise of the General Assembly’s power
    to enact “such laws not inconsistent with” Article III, § 52 as may
    be “necessary and proper” to carry out its provisions because the
    statute “recognizes and perpetuates the preeminent role of the
    Governor in the budget process” and “merely allows the Governor
    to accomplish at the end of the budget process what he is required
    to do when he submits his initial budget,” i.e., to ensure that
    expenditures do not exceed estimated revenues. Judy, 
    331 Md. at 259
    . Assuming that the Board were to have the power to impose
    conditions on its approval, however, that might permit the Board to
    interfere with or intrude upon the Governor’s preeminent role in
    the budget process under the Constitution. That is not to say every
    condition would itself violate Article III, § 52. But it would be
    necessary to determine whether any particular proposed condition
    is “inconsistent with” Article III, § 52, thereby raising a constitutional
    60                                                      [106 Op. Att’y
    question every time a member of the Board proposed a condition.
    Because courts will typically construe ambiguous statutes to avoid
    constitutional questions, the constitutional concerns here also
    weigh in favor of an interpretation that the Legislature did not
    intend that the Board have the power to condition its approval. See,
    e.g., G. Heileman Brewing Co. v. Stroh Brewery Co., 
    308 Md. 746
    ,
    763 (1987) (“[I]f a legislative act is susceptible of two reasonable
    interpretations, one of which would not involve a decision as to the
    constitutionality of the act while the other would, the construction
    which avoids the determination of constitutionality is to be
    preferred.” (internal quotation marks omitted)).
    Given the narrow role that the Board plays under SFP § 7-
    213, the Governor’s broad authority in the budget context, and the
    canon of constitutional avoidance, we have serious doubts that the
    General Assembly intended to grant the Board the implied
    authority to impose conditions on its approval of reductions to an
    appropriation under SFP § 7-213. 20 Put another way, considering
    all of those various factors together, had the General Assembly
    intended the Board to be able to impose conditions under this
    particular statutory scheme, our sense is that the Legislature likely
    would have done so expressly, as it has done under at least some
    other statutes that confer powers on the Board. See, e.g., Md. Code
    Ann., Envir. (“EN”) § 16-202 (granting the Board the power to
    impose State wetlands licenses on “terms and conditions the Board
    20
    Historical practice also weighs against a conclusion that the Board
    may impose conditions on its approval. We are aware of only one
    instance when the Board took an action that might arguably be viewed
    as imposing a condition on its approval under § 7-213. In that instance,
    the Board approved the Governor’s proposed reductions in part but also,
    among other things, rejected some of the cuts in part and voted to
    “transfer” the money that had been restored to a particular grant program.
    See Transcript of the Board of Public Works Meeting (Sept. 30, 1992).
    That action could be viewed as a partial approval of the reductions with
    the condition that the Governor transfer certain funds to another
    program. However, the Governor ultimately agreed to the actions
    recommended by the other Board members—voting to approve them,
    see id.—so it is not clear whether they were indeed conditions on the
    Board’s approval or whether the Board simply persuaded the Governor
    to take an action that would have been within his authority. In fact, a
    prior opinion of the Attorney General suggests that the Board would not
    have been able to unilaterally impose such a condition. Cf. 21 Opinions
    of the Attorney General at 218-19 (advising that, when the Board had the
    primary authority to reduce or eliminate appropriations under the
    predecessor to SFP § 7-213, the Board could not require that the amount
    saved via the reduction be devoted to a particular purpose).
    Gen. 38]                                                               61
    determines”); EN § 9-422 (allowing the Board to impose
    conditions in approving financial assistance for certain water
    supply facilities); SFP § 10-307 (allowing the Board to impose
    conditions related to the transfer of geothermal resources). 21
    Still, we cannot entirely dismiss the possibility that a court
    would find that the Board has some limited authority to impose
    conditions on its approval, especially in light of the general
    principle that the power to disapprove an action often includes the
    power to approve conditionally. Any authority that the Board
    might have, however, would likely be extremely narrow, in
    keeping with its limited role under the statute and to avoid
    interfering with the Governor’s constitutional role over the budget
    or conflicting with Article III, § 52.
    As a starting point, any power to impose a condition would
    have to be consistent with the general purpose of § 7-213 and the
    express powers conferred on the Board. See, e.g., Lussier, 
    343 Md. at 686
     (“[I]n determining whether a state administrative agency is
    authorized to act in a particular manner, the statutes, legislative
    background and policies pertinent to that agency are controlling.”);
    Bankers, 
    326 Md. at 624
     (holding that an agency may not exercise
    any power that is “inconsistent or out of harmony with” the statute
    being administered). Here, in light of the purpose of § 7-213 and
    the limited grant of authority to the Board under that statute, the
    Board’s power to condition, assuming it can impose conditions at
    all, would have to be narrowly construed as well.
    The primary purpose of § 7-213 is to provide a vehicle for
    controlling State expenditures after the budget bill has been enacted
    so that the State can “accommodate an unexpected decrease in
    anticipated State revenues and . . . maintain a balanced budget.” 65
    Opinions of the Attorney General at 48. And the limited power
    21
    To be clear, we do not express an opinion on any other statutes that
    provide the Board with authority to approve or disapprove a particular
    agency’s decision without expressly granting the power to impose
    conditions. See, e.g., 
    Md. Code Ann., Econ. Dev. § 10-212
    ; 
    Md. Code Ann., Nat. Res. § 5-904
    ; 
    Md. Code Ann., Transp. § 6-303
    . As we have
    said, the ultimate inquiry must be based on “the General Assembly’s
    intent in empowering an agency and the statutory scheme under which
    the agency acts,” Thanner Enters., 
    414 Md. at 279
    , which will
    necessarily depend on the specific statute at issue. We also do not mean
    to suggest that an agency needs to have explicit statutory authority to
    conform its conduct to other laws so as to ensure that it does not perform
    its powers or duties in an unlawful manner.
    62                                                    [106 Op. Att’y
    delegated to the Board under that statute is to approve (or not
    approve) the reduction of an appropriation that the Governor
    “considers unnecessary.” Assuming that the Board has the power
    to approve a reduction under § 7-213 subject to a condition, the
    condition would have to be consistent with that purpose and the
    Board’s limited role.
    Based on those principles, we can say with confidence that
    certain conditions would clearly be beyond the Board’s authority
    to impose. A condition that makes substantive policy changes, for
    example, or that has the effect of substituting the Board’s budget
    reduction plan for the Governor’s plan clearly would be
    inconsistent with the statute, which vests in the Governor the
    exclusive power to decide which appropriations to propose as
    “unnecessary.” 22 Similarly, a condition that calls for the Governor
    to take other budgetary actions or to implement other cost savings
    measures would, in our view, clearly be impermissible. The Board
    also could not require that the amount saved via a budget reduction
    be rededicated to another purpose. See 21 Opinions of the Attorney
    General at 218-19 (reasoning that such a condition would be
    impermissible, even at a time when the Board had primary
    authority over budget reductions). And, of course, a condition that
    is “inconsistent with” Article III, § 52 would not be a valid exercise
    of the Board’s power under SFP § 7-213.
    Another clear limiting principle is that the Board may not
    impose a condition that, in effect, delegates to some other entity or
    person the discretionary function of approving (or not approving)
    a reduction proposed by the Governor. That approval function is
    specifically conferred on the Board by the budget reduction statute,
    and an agency may not wholly delegate discretionary powers
    specifically conferred upon in it by statute without express
    authority from the General Assembly. 61 Opinions of the Attorney
    General 734, 735 (1976) (although the Board could delegate
    certain discretionary functions to its administrator—provided that
    the Board gave appropriate preliminary instruction and the actions
    were subject to subsequent Board review—it could not wholly
    delegate the duties that were specifically conferred upon it by
    statute); see also 73 Opinions of the Attorney General 295, 302
    (1988) (explaining that “administrative agencies cannot, in the
    22
    Thus, for instance, a condition that the Governor bring additional
    reductions to the Board for its approval likely would be beyond the
    Board’s power. In practice, of course, the other two members of the
    Board may be able to persuade the Governor to modify the reduction
    plan. We note, however, that a substantive modification might require
    new notice under SFP § 7-213(a)(2).
    Gen. 38]                                                                63
    absence of express legislative authorization, delegate powers or
    functions, particularly those requiring the exercise of discretion or
    judgment, to others”); 50 Opinions of the Attorney General 180,
    183 (1965) (advising that the Board of Trustees of the State
    Colleges may not delegate to its executive director “any of those
    powers and duties specifically conferred upon it by statute”).
    Having discussed some conditions that would clearly be
    beyond the Board’s authority, the more difficult question is what
    conditions might be within the Board’s authority—assuming that
    the Board has the power to impose any conditions in the first
    place—and whether that authority includes the type of condition
    about which you have asked, namely, one that provides for
    automatic rescission or reconsideration of the Board’s approval
    upon the occurrence of a specified event. For example, could the
    Board impose a condition providing for automatic rescission or
    reconsideration of its approval if the next revenue projections by
    the Board of Revenue Estimates come in above a certain threshold
    number?
    Given the Board’s narrow role under the statute, our view is
    that, at the most, the Board might have the power to impose
    procedural conditions that are directly related to the narrow
    decision before the Board (i.e., the decision to approve or not
    approve the reduction or reductions proposed by the Governor),
    that are merely derivative of that narrow authority, and that do not
    concern any actions or matters unrelated to the specific reduction(s)
    under consideration. See Thanner Enters., 
    414 Md. at 279
    (explaining that the scope of implied powers depends on “the
    General Assembly’s intent in empowering an agency and the
    statutory scheme under which the agency acts”).
    In theory, that standard might permit the Board to impose a
    condition providing for automatic rescission of its approval if
    actual or projected State revenues are above a certain level such
    that the reductions no longer appear to be needed. 23 Such a
    condition, at least arguably, is directly related to the Board’s
    narrow decision under § 7-213 and is merely derivative of the
    23
    However, as noted above, in adopting a condition based on revenue
    estimates, as opposed to actual receipts, the estimates would probably
    need to be derived using objective criteria to lessen the risk that a court
    might view the condition as an impermissible delegation of the Board’s
    discretionary power.
    64                                                       [106 Op. Att’y
    Board’s power to disapprove the proposed reductions in their
    entirety. 24 After all, the availability of funds to support the
    appropriation seems directly relevant to the decision of whether or
    not to approve the reduction. Such a condition also does not
    impinge on the Governor’s authority under the statute to decide
    which reductions to propose, nor does it seem to interfere with the
    Governor’s broader control over the budget process, at least not any
    more than would a decision of the Board to disapprove the
    reductions in their entirety, an action which is unquestionably
    within the Board’s authority. 25
    24
    You also have asked whether the Board could impose a condition
    providing for automatic reconsideration upon the occurrence of a
    specified event. It is not entirely clear to us what the Board means by
    automatic reconsideration in this context. If the Board is contemplating
    automatic reconsideration of its own vote to approve the proposed
    reduction (with the condition that the vote will be automatically
    reconsidered upon the occurrence of some specified condition), that
    might be inherently self-contradictory; reconsideration of an earlier vote
    ordinarily nullifies the original vote, see Mason’s Manual § 468, which
    in this case would be the vote that mandated reconsideration in the first
    place. However, the Board seems more likely to be contemplating a
    condition providing that (1) the Governor may not implement the
    reduction until it can be determined if some future contingency is
    satisfied and (2) if the contingency is satisfied, the Governor can proceed
    with the reduction, but if the contingency is not satisfied, the Governor
    can proceed with the reduction only if Board takes a new vote
    authorizing the reduction. That latter type of condition would likely be
    subject to the same analysis as a condition providing for automatic
    rescission. That is, if a condition providing for automatic rescission of
    the Board’s approval on certain grounds would be permissible, then this
    type of condition would likely also be permissible. But to the extent that
    the Board is further contemplating that it would be bound to put the
    matter back on the Board agenda upon the occurrence of the future event,
    even if the Governor wishes to withdraw his proposed reduction, for
    example, that would raise additional issues. We doubt that the Board
    could preclude the Governor from withdrawing his proposal under those
    circumstances, and there might also be questions as to whether the Board
    could bind itself to take a particular action in the future.
    25
    If the imposition of such a condition were to create a prolonged
    period of uncertainty as to the amount of appropriations that will
    ultimately be available to the affected agencies, the condition could
    potentially be in tension with the statutory purposes of allowing the State
    to maintain a balanced budget and to have the necessary flexibility to
    respond to unanticipated fiscal conditions, as well as with the idea of
    gubernatorial primacy in the budget process. We are assuming here that
    it would be a relatively short period of time until it can be determined
    Gen. 38]                                                                   65
    It is not clear, however, what practical use such a condition
    would have unless the Board were also to impose a condition
    delaying the implementation of the reduction or the effective date
    of the approval until it can be determined whether the condition
    requiring automatic rescission has (or has not) occurred.
    Otherwise, if the reduction has already been implemented, the
    Board would not be able to rescind or reconsider its approval; the
    appropriation will already have been reduced as a matter of law,
    and it could not be added back to the budget by the Board. See Part
    II.A, supra. As to whether the Board could require that the
    approval not go into effect (or the reduction not be implemented)
    until a later date, it is at least possible that too might be the type of
    narrow, procedural condition that would not conflict with the
    statutory design. It is directly related to, and derivative of, the
    Board’s authority to approve the reduction, in that it simply
    identifies the date on which the Board’s approval shall become
    effective, after which the Governor may implement the reduction,
    and it is not tied to actions or matters unrelated to the reduction
    under consideration. 26
    All of that said, the Board could achieve the same result (and
    avoid the risk that its conditions would be invalidated) simply by
    deferring its decision on the Governor’s proposed reduction or by
    declining to approve the reduction and encouraging the Governor
    to bring the matter back to the Board at a later date, 27 during which
    time the Governor and other members of the Board could further
    evaluate the State’s fiscal situation and the need for making the
    reduction based on the most up-to-date information. That action
    would unquestionably be within the Board’s authority, would seem
    whether the condition will or will not be met. If not, that could raise an
    additional question that would need to be considered.
    26
    Although there is little practical difference between a condition
    delaying the effective date of the approval and one delaying the
    implementation of the approval until a specified time, a condition that
    directly prohibits the Governor from implementing a reduction that has
    been approved might raise more questions than one that merely delays the
    effective date of the approval. That is because, while the statute grants the
    Board the power to approve or disapprove the reductions, it does not
    expressly give the Board any role in implementing the reductions once
    approved. It could be argued, therefore, that a condition directly
    prohibiting the Governor from implementing a reduction injects the Board
    into part of the process that has been left to the Governor under the statute.
    27
    Nothing in statute precludes the Governor from proposing a
    reduction previously disapproved by the Board.
    66                                                   [106 Op. Att’y
    to achieve the same result as the conditions about which you asked,
    and would rest on far safer legal ground. Thus, even if there might
    be an argument that the Board could impose a condition to delay
    the effective date of its approval or provide for automatic rescission
    under certain limited circumstances, we would advise that the
    Board avoid taking such an action and, instead, defer a vote on the
    proposed reductions (or decline to approve the proposed reductions)
    when there is a need to wait for more information.
    III
    Conclusion
    To summarize, we conclude that the Board may reconsider
    and rescind its approval of a reduction under SFP § 7-213 up until
    the time the reduction takes effect. We have serious doubts,
    however, that the Board may condition its approval of a reduction
    under § 7-213. And even assuming the Board has the implicit
    power to place some conditions on its approval, that power would
    be extremely narrow. Although we cannot say with certainty that
    the Board lacks the power to impose a condition providing for
    automatic rescission of its approval upon the occurrence of a
    specified condition, at least if that condition were directly related
    to the narrow decision before the Board and if the reduction had
    not yet been implemented, we advise the Board against such an
    approach. The Board can achieve the same result, without the same
    legal risks, simply by deferring a vote on the reduction (or declining
    to approve the reduction) until it is satisfied that it has the
    information it needs to make a fully informed decision.
    Brian E. Frosh
    Attorney General of Maryland
    David W. Stamper
    Assistant Attorney General
    Patrick B. Hughes
    Chief Counsel, Opinions and Advice