*1 regarding issue particular the fact that this Aside from or decided again was not raised proof of burdens allocation court, the appellate intermediate the circuit court or before relied does not involve argument upon due original process raised here argument alternative matter as the subject same time limitations. While statutory the lack of concerning to the issues of loosely be related may of time limitations lack link find too attenuated the be- due we procedural process, theory that the of time limitations and tween the absence of due feasibility is violation failure to consider economic 560-61, Co., 320 Md. at Oil & Wax process. See Crown situations, a new some (determining A.2d at 1191 not it does appeal on when may presented argument issue, argument but is instead additional a new present appeal). issue on already preserved of an under the umbrella THE APPEALS OF COURT OF SPECIAL JUDGMENT AFFIRMED; BE PAID BY PETITIONER. TO COSTS

929 A.2d 113 COMMISSIONERS CITY BOARD OF SCHOOL BALTIMORE v. SCHOOL, et al. CHARTER CITY NEIGHBORS George’s County Education of Prince Board of v. School, Charter Inc. Lincoln Public Term, Sept. 2006. Nos. Maryland. Appeals

Court July 30, 2007. *3 (llana Whiteford, Warren N. Weaver Subar of Taylor & Preston, L.L.P., Turner, Counsel, Tammy L. General Balti- *4 City Commissioners, more Baltimore, MD), Board School (No. brief, 100). on for the Petitioner (DLA F. L.L.P., William DuBois Piper U.S. Sedica Sawez of Rosenberg, L.L.P., Martin Funk & Greenberg, Paul A. Fenn Conti, and Anthony Lawrence, L.L.C.), M. Conti of Fenn & on brief, Baltimore, MD, (Lani Richard C. Daniels L. Daniels of Green, L.L.C., Park, Daniels & MD), brief, College on for (No. 100). Respondents Manzi, (Knight, w. Nussbaum & LaPla-

Andrew Nussbaum MD), brief, ca, P.A., County, on for George’s of Prince Peti- (No. 121). tioner (Lani Green, L. of Daniels &

Richard C. Daniels Daniels (121). MD), L.L.C., Park, brief, Respondent on College for C.J., CATHELL, BELL, RAKER, before and Argued WILNER, HARRELL, BATTAGLIA, GREENE, ALAN M. (Retired, JJ. Specially Assigned),

WILNER, J. declaratory rulings are appeals At issue these two three (SBE). rulings Those estab- the State Board of Education determining lished standards amount appeals in the three charter schools involved are respective county their boards of to receive from entitled reversing Special Appeals, by The Court of con- education. City Court for Baltimore one trary decisions Circuit 100) (No. Prince George’s and the Circuit Court case (No. 121), rulings. in the other affirmed the SBE We County Special Appeals. of the Court of judgments shall affirm

BACKGROUND Charter Schools schools in the nature semi-autonomous Charter are a State or local operate schools that under contract with contract, charter, The the school board. defines how school structured, staffed, funded, managed, what pro- will offered, operate and how the will will be school grams for its to create charter account activities. movement schools, by converting existing by starting either schools or ones, from a concern began growing new 1990s schools, areas, living at in some not up least were movement took root public expectations, legitimate November, 2004, forty States and the spread quickly. By legislation, enacted District Columbia had provided start-up had the movement and Congress endorsed *5 schools,1 4,000 charter and about charter schools had been formed across the nation.

The principal objective those who desired to create such educators, schools—parents, community groups, private enti- develop implement ties—was to innovative and more and, that, programs, effective educational to do they needed structural, from opera- demanded freedom some of the tional, fiscal, and pedagogical governed controls that the tradi- system. tional school That created obvious areas conflict with components existing public various school boards, administrators, unions, system—school teacher local mostly fiscal authorities—which and often vehemently effort, opposed the and it raised complex questions serious and regarding organization, funding, accountability, and moni- toring of these new schools. questions

These were that had deep public policy implica- tions, that extended questions beyond the educational commu- nity, that soon resonated in the halls of Congress and State legislatures, and which there seemed to be no universally accepted answers. There has yet any agreed-upon national model for either the schools themselves or a form of legislative authorization of them. The laws enacted various in vary considerably States of important number respects, including the form and extent of funding. Maryland Law Sessions,

After wrestling the issue five previous Assembly General created the Maryland Public Charter Program School by enacting a new title 9 to the (ED). Maryland Education Article of the Code See 2003 Md. Laws, 9-101(b) §ED ch. 358. states as the purpose program to “establish an alternative means within existing public school system provide order to learning innovative opportunities and creative educational approaches improve the education of students.” Section 9-102 a public defines through 722lj. §§ 1. See 20 U.S.C. thirteen that meets the school as a in that One forth section. set requirements

conditions and 9-102(11), operate that the school requirements, 9-103 makes *6 charter. Section with its accordance authority and primary chartering the of education boards charter- public or as the SBE, capacity in an appellate acting secondary school, as the authority for a restructured ing authority. chartering § in ED 9-104. Section is set forth chartering process a

9-104(a) apply to for authorized the and entities persons lists with the is to be filed application that the specifies charter and (a)(4)(i) of education. Subsection county board appropriate and render application to review the county board directs the application. of the days receipt 120 after on it within a decision applicant may application, county If board denies 4-205(c).2 If §ED SBE in accordance with to SBE appeal denial, county may order board’s county reverses the to charter, is directed in which event SBE a grant board implement applicant board and the county with the mediate 9-104(b)(3). § charter. ED. public staff of a professional requires 9-105 Section certification. appropriate Maryland hold the school to charter with comply charter schools to public requires Section 9-106 schools, but, governing public other regulations laws and require- to waive those permits SBE exceptions, certain public of a employees that the provides 9-108 ments. Section they are employees, school public school are charter county in the where employer public of the employees located, the collective they and that have school is the charter 4 and 5 forth title subtitles rights set bargaining county 9-110 boards requires Article. Education Section policies charter school public develop and submit Finally, procedures. guidelines include certain that must appeals, provides of these 9-109, lies at the heart § which 4-205(c)(3) general right appeal to SBE from provides 2. ED writing Appeals be in and taken county must decisions of boards. days of the board. after the decision within charter schools. public public mandate 9—109(a)provides: Section school an

“A shall disburse to a charter county State, elementary, county, money and federal amount middle, that is commensurate with secondary students in the local to other schools the amount disbursed jurisdiction.”

These Cases noted, us. were separate appeals They As two are before consolidated, deal with both of them not but we have chosen to from Baltimore Opinion. this No. which emanates schools—City City, Neighbors involves two Park Public Charter School and Patterson Charter School. George’s County No comes from Prince and involves *7 Lincoln Public Charter School. Neighbors

City community group a northeast City Neighbors, non-profit Board of City, applied City Baltimore to the Baltimore School open public in March 2004 to a charter school Commissioners 2005. For charter school September, purposes law, of con City the Baltimore Board School Commissioners education; convenience, stitutes a board of howev er, application we shall to it as the The city refer board. anticipated from the board at the rate of public funding city $7,500 to per pupil. city upon When the board failed act the § ED application days, required by within 9- 104(a)(4)(i), City Neighbors city filed an to SBE. The appeal that, appeal ground board moved to dismiss the on the be decision, deliberately nothing cause it had made no there was appeal. rejected city SBE found the board argument, 9—104(a)(4), § to be non-compliant with and directed that it act upon application by November 2004.3 city grant 3. SBE also found that the board’s decision to no more than applications year three the first was unauthorized and void. city conditionally approved On November agreement a as to a contingent upon subsequent application, no approval The conditional made commitment charter. §ED 9-109. required funds that would be under any public officials of City Neighbors continued between Discussions board, on city without success. The board insisted city spending of its when excluding categories system-wide certain requiring the charter school allocation and on calculating accept categories expense charter schools to other cash, than of which were unac- form of services rather both that the cen- City Neighbors. Perceiving dispute ceptable ED over what was under disagreement tered on a 9—109(a), February on filed a City Neighbors, on declaratory ruling proper for a petition petition of that The application provision. interpretation 13A.01.05.02D, regula- a SBE pursuant was filed to COMAR declaratory any party petition tion that to “file a permits a interpretation Board on the ruling by State that is material school law or the State Board regulation See Code, also controversy.” Maryland case or existing Article, §§ 10-304 and 10-305 of the State Government which agencies authorize administrative issue declarato- expressly over ry petition complained dispute The rulings. delayed negotiations agreement had toward that, a determination of the method and amount without funding, City Neighbors new charter schools such as for a Fall 2005 plans opening. were unable to make petition, raising board moved to dismiss the city defenses, mootness. It attached to its including number of *8 that it “funding motion a model” for charter schools had to charter on developed applicants circulated model, 8, funding city March 2005. Under board for FY 2006 would consist per pupil funding advised that the $2,943 services, $5,011 City in cash some of which seek, need, In did not did not and did not desire. Neighbors allocation, calculating per pupil city board excluded funds, costs, funds system Federal entitlement administrative education, transportation expenses, expenses for for special services, and the cost services, utility expenses health food services. Park

Patterson non-profit Inc. a School. Park Public Charter Patterson 31, 2004, applica- it an filed August On Maryland corporation. charter school to establish city board tion with sought application part city. of the the southeastern $7,500. rate of On per pupil at funding initial year 17, 2004, conditionally approved city board November facility inspection, satisfactory on a contingent application, contract budget, a school and successful final submission funding commit- City Neighbors, As with no negotiations. Discussions and no charter was issued. ment was made officials, but, board city Patterson Park and ensued between than the 120 which was more January, end of by the city board had approval rejection, days allowed on specific approval or remove conditions identify any failed to constitute a Patterson Park took to application, which 24, 2005, In it an to SBE. its January appeal noted denial. On had indicat- notice, city Park averred that the board Patterson approximate would be at the rate per pupil funding ed that of services. $4,200, all of which would come the form that it a cash disburse- Patterson Park contended $7,500 pupil plus special Federal entitlement per ment education funds. City Neighbors’ petition, city

As had done with claiming Park’s that the appeal, moved to dismiss Patterson jurisdic- was without application granted had been city board released its tion. That motion was filed before the funding March model.

Lincoln School, Inc., Lincoln Public Charter September On application non-profit Maryland corporation, filed a two- George’s County school board establish the Prince Lin- George’s County. school in Prince campus public “roughly board that is coln from the requested *9 board, which equivalent spent per by county to that child” the $8,544. Lincoln as January county calculated On the board invited Lincoln to meet with the board’s staff to review aspects application the “that are of concern to the school terms, and, “contin- system,” negotiate mutually acceptable on on for gent reaching agreement negotiation issues and/or modification,” to execute contract documents. appropriate invitation, to that

Negotiations pursuant commenced but they January 2005—following were unsuccessful. On for or expiration 120-day period approval allowed chief for coun- rejection application—the negotiator ty board advised Lincoln that there remained three “potential reaching agreement, funding, obstacles” to one related to second to whether Lincoln could obtain a waiver of the re- quirement employees employees, its the third an that all by county insistence board assets purchased by Lincoln with funds must be and remain board, property county including improve- lease ments and textbooks. The letter set forth the board’s county on position those items and advised that Lincoln’s acceptance positions negotiations of the board’s “is essential for to contin- respect funding, county ue.” With board proposed $5,495 pay per pupil, whereas Lincoln claimed a need for $8,554. the board’s letter as a denial of Regarding applica- its tion, Lincoln an appeal county noted SBE. had, fact, moved to dismiss the on the that it appeal ground granted application, conditionally. Lincoln’s albeit Proceedings Rulings separate

SBE had before it three matters—a for petition declaratory ruling by City Neighbors, appeal Patterson Park, and an It appeal by Lincoln. was aware that there were applications pending several other charter schools with Recognizing appeals by before boards. that the Pat- Lincoln, Park petition by City Neigh- terson like the filed bors, 9-109(a), § ED proper centered on the construction of public, school law that was material to an existing case controversy, SBE treated two appeals petitions sepa- kept petitions the three ruling. Although declaratory cases, it consoli- the three separate rulings and issued rate held argument, oral which was purposes dated the cases *10 on 2005. April initial in the three opinions SBE issued its May

On No. 05- City Neighbors, Opinion in (Opinion cases No. 05-17 Park). in The Lincoln, 05-19 Patterson Opinion 18 in and No. in their in structure and were similar their opinions three conclusions, county and they essentially rejected city and City Neighbors § of ED 9-109. Unlike construction boards’ Park, Lincoln, complaint in addition to the Patterson and of the that its sought requirement a waiver funding, about teachers, other than full-time classroom employees, system employees. attracted considerable com- opinions obviously three

The critical, among the ment, of it in the news media and some establishment, and, response, requested SBE educational Schools, Depart- two State Superintendent of other the State officials, own to address the of Education and its counsel ment May meeting on 24. As result regular open Board at its revised each opinions those issued presentations, on 2005. Those which were opinions, three cases May nature, the final and constitute clarifying both substantive Board. decisions of the sub- opinions

Each of the addressed three basic revised SBE, the jects—the applied by standard of to be review §ED 9- process, proper interpretation of application and the 109(a). The with Lincoln also addressed the opinion dealing review, to standard of the Board respect waiver issue. With 2-205(e), that, §ED it was to “ex- empowered noted under meaning” intent of the plain provisions the true jurisdiction its Article that were under Education disputes provisions” “all under these decide controversies the Board and that COMAR 13A.01.05.05E directed on the it in independent judgment “exercise its record before of the school laws explanation interpretation regulations.” Board and State

SBE concluded that the application process involved two steps. step submission, The first consists of the development, application, and review which is to allow the county- all aspects proposal. examine of the The second step commences after application approved and involves completion of an actual charter agreement. thoroughness concluded, of the first step, the Board should pave way incorporation approved application into the charter agreement “with the need for negotiation minimal additional completing” the second Mindful of the step. 120-day statuto- ry deadline board decision on an application, SBE concluded that the second step completed should be within 30 days after approval application.

The main issue was and the of ED 9- meaning 109(a), in particular phrase “commensurate with the *11 amount disbursed to other public jurisdic schools in the local tion.” The Board phrase expressed concluded the legislative federal, intent that a charter school “receive State, funding and local in an amount proportionate to the middle, amount of expended elementary, funds for and second ary level in students the other schools the same system.” includes, added, That the Board “funding for ser vices for which students the public charter schools are eligible meals, such as free and reduced price pre-kindergar ten, education, special learners, English language Perkins, I, transportation.”4 Title

Noting that there existed no statewide formula or methodol- ogy for local determining systems how school fund their schools, the Board concluded that a starting point reasonable for the determining commensurate amount was “the total annual school system operating budget that all includes feder- al, State, funding and local with the approved appropriations 5-101(b)(2) for each of major the categories specified of 4. Elementary Title I refers to Title I of Secondary the Federal Education Act of as amended from time to time. See 20 U.S.C. §§ 6301-6600. Perkins refers to the Federal Carl D. Perkins Vocation- §§ al Education Act. See 20 U.S.C. 2301-2471. local of education Article that each Education within 30 of Education] State Department submits [the local The governments.”5 approval by respective of days budget and annual step operating to divide total next is by the annual category appropriations major each system of the school for enrollment count September 30 average per pupil to calculate the year, previous major category. and per overall functions, support that there certain such

Recognizing were charter school development and the as data collection only by the central office performed that could be policies, average that the total system, the local school SEE directed 2% as cost amount be reduced a reasonable per pupil adjusted average per total those functions. performing multiplied by amount then to the student enroll- pupil total funding charter school to determine the ment charter amount school. budget total encom- system operating

Because the school funds, funds, I including special all Title education passed average Board amount per pupil determined that for the figure derived from that would be sufficient deliver the which its students were services to make eligible. budgetary The school would have allocations however, light requirements, the students’ eligibility applicable requirements. must Federal and comply State special provided eligible For the services that must be students, provide the charter school could elect either to *12 5-101(b) specifies categories that 5. ED must be included in the county budget, requested appro- boards’ annual school one which is 5—101(b)(2) specifies priations expense Section for current fund. (i) subcategories category: must be in that that included Administra- tion; salaries; (ii) administration; (iii) (iv) Mid-level Text- Instructional materials; (v) books and classroom instructional Other instructional costs; (vi) education; services; (viii) (vii) Special personnel Student services; (ix) (x) plant transportation; Operation of Health Student (xii) (xi) (xiii) equipment; plant; charges; Maintenance of Fixed Food services; determined, however, (xiv) Capital outlay. The Board that, purposes funding, appropriations for of charter school for debt be service and adult education were to excluded. directly services or have them provided by the school system, latter, if it opted but for the it would required be to reimburse system the school for the proportionate cost of those services. Reimbursement would also be “for local salary, re- tirement, and other fringe benefit costs for the public school employees working the charter school as regular well as for services and that supplies the charter school requests the local system to provide.”

As “further guidance” implementation on the funding that methodology, adopted SBE and incorporated by reference “guidance documents” that prepared, had been at the Board’s by Department of request, State Education officials and that had been discussed at the Board’s open meeting May on 24. respect With to City Neighbors Park, and Patterson SBE per pupil concluded the total spending by city for categories the various it believed must be included to arrive at $10,956. commensurate was funding In Lincoln’s case, the Board determined that the total per pupil spending $9,664. board was

The Board recognized prospect that not every student attending a charter school would be entitled to I or Title special and, indeed, education funds or services that in some schools none the students might eligible, be funding applicable restrictions programs those would re- quire charter schools to adjust their “to budgets in compliance with programmatic laws and regulations,” that the calculation of average cost “does not mean that funding mix of each fund source to the [county must be board] duplicated level,” at the Charter School “average that, just not necessarily represent does any amount that specific pupil gets.”

As 3 to opinions, Exhibit its adopted formula for the separate calculation of Title I for funding the charter schools provided a reduction in the total per pupil allocation I per pupil Title if the charter school is not to funding. receive that As Exhibit the Board adopted Technical Assistance Bulletin prepared by the Department *13 No to Education. Special Schools and respect with Charter to those items. respect amounts were calculated with to ruling respect a with declined to make definitive SBE 9-108, that, § It under ED request. Lincoln’s waiver noted of employees are school employees public charter school public where charter school the the public employer the they bargaining collective is located and that have the school 6, employees in title to other rights granted Article. Board ob 4 and 5 of the Education The subtitles the charter school as well that the statute allows served existing to to collective negotiate the unions amendments of agreements particular to address the needs bargaining attempt negoti It Lincoln to suggested charter school. that in the unions, or set forth “pursue procedures ate with regulations on waivers for charter proposed Board’s State schools, or a of combination both.”6 already facts that was

Finally, perhaps light schools, that there were several dealing with three issuing declaratory a in the it was pipeline, others used as noted that its should be ruling, opinions Board applicants other charter school “guidance direction” working “for systems and local school the refinement their relationships through- on school children behalf out this State.” 13A.01.01.02-1, existing regulation, permit-

6. SBE had an COMAR it, cause, good upon compliance, ted demonstration substantial effort, regulations. waiver comparable grant its A waivers from years but for three- could not exceed three could be renewed additional regula- year periods. compliance was A waiver limited to with tions; any compliance provision there was no SBE to waive with proposed published regulations that it statute. Board noted had 29, respect April to waivers for charter in the 2005 issue schools Maryland regula- Register. Reg. proposed See 32-9 874. The Md. provided but procedure seeking tion a waiver otherwise tended hearing provisions proposed ED follow the 9-106. A on the regulation Legislative was held Joint Committee on Administra- 11, tive, July Legislative Executive Review on June 2005. On regulation emergency but regulation, was resubmitted as an July appeals withdrawn. date were on it was As of the these is, any argued appear regulation pertaining before it does not yet specifically adopted. has waivers for charter schools been Judicial Review City Neighbors and Patterson Park *14 The city petitioned judicial board for review in the Circuit Court for City Baltimore both the City Neighbors and Patterson Park cases. not Although parties to the SBE proceeding, the Baltimore Teachers Union and the Baltimore City Municipal Employees petitioned judicial Union also for review, and several other public charter schools filed respons- es to the city board’s petition. The court all consolidated petitions. city The board complained that had SBE 9-109, §ED misconstrued that funding its formula violated law, Federal declaratory that its rulings constituted impermis- rulemaking, sible and that various procedural deficiencies right violated its to due process.

The unions complained SBE erred in determining that public charter schools could request waivers of employee rights protected §EDby not, fact, 9-108. That issue was City Neighbors and Patterson Park cases then under judicial Park, review. Patterson along with several other schools, charter had requested a waiver in a separate Union, See Patterson Park v. Teachers proceeding. 399 Md. 174, (2007). 923 A.2d 60 12, 2005, July

On judicial while the review action was pending, city board granted City Neighbors three-year charter. The parties agreement reached as to funding only for year (2005-06), however, the first leaving open and unre- solved the level of years 2006-07 and 2007- OS. On August a similar agreement was reached with Patterson city granted Park—the board a three-year charter agreed but to funding only the first year. Those agree- ments permitted the two schools to open as scheduled in September, 2005. August

On the court filed a memorandum opinion and (1) order in which dismissed the city petition board’s moot in light the partial agreements reached City (2) Neighbors Park, and Patterson opined nonetheless that the procedure “flawed,” (3) used SBE was notwithstanding not at the unions was presented by that the issue waiver in that review judicial under proceedings in the SBE issue determining erred court, nonetheless declared statu- could waivers of the request schools must be full-time employees that their tory requirement board’s city The order dismissed attached employees. ruling declaratory moot reversed the SBE petition as City Both Neighbors of waivers. governing seeking judgment, motion to or amend the Park filed a alter Patterson their motions were that the was not moot. When arguing case denied, they city and the summarily hearing, without appealed. each of the Circuit Appeals found Special

The Court its therefore reversed rulings to be erroneous and Court’s Board, 169 Md.App. v. City Neighbors School judgment. (2006). regarding court that the issue A.2d 388 held *15 Patterson Park schools City Neighbors the and the moot, rulings were not errone- declaratory was not that SBE’s ous, substantively, or and that the unions’ procedurally either not for review. complaint ripe about waiver was

Lincoln was no County Prince Board of Education George’s declaratory ruling the in Lincoln more enamored with SBE City the in and city rulings Neighbors than the board was with petition judicial Park. in the Patterson It filed review That George’s County. for Prince court found Circuit Court had, fact, in county accepted applica- that the Lincoln’s tion, in the failing county that SBE erred address board’s dismiss, had motion to which the court seemed believe merit, that Board erred in Lincoln’s converting the as well Substantively, to a the appeal petition declaratory ruling. in its arbitrarily capriciously court found acted SBE it have funding—that commensurate should determination view, it substantively to the board’s that was deferred engaged in its it had in wrong interpretation, imper- bases, those it rulemaking. missible On reversed SBE ruling.

In Lincoln’s appeal, Court of Special Appeals, in an unreported opinion, reversed the Circuit judgment. Court’s Following long line of decisions of this Court that the Circuit Court largely ignored, appellate court noted the broad statutory authority of to explain the true intent and meaning public education laws and the requirement courts give substantial deference to SBE’s construction of those laws. The of Special Court Appeals likewise found no procedural deficiencies and concluded that the State Board “acted within the authority bounds its both reviewing de facto denial of application [Lincoln’s] ordering County Board to approve application.”

DISCUSSION granted We and, noted, certiorari both cases shall the judgments affirm of the Court of Special Appeals. We shall deal first with the procedural penumbral issues raised by the school boards and then major address issue— SBE’s construction of ED 9-109.

Standard of Review In judicial actions for decisions, review of SBE rulings and there may aspects be two to the review, issue of standard although, because they governed are same principles, they often coalesce. There is ultimately question of what standard the court is to apply decision, reviewing the SBE but subsumed in that may be the question of what standard when, should be applied by SBE in an appellate capacity, reviews the decision of a county board of education. Both *16 aspects are raised in these cases.

Summarizing confirming and earlier Court, decisions of this dating Comm’rs, back to v. Wiley (1879), School 51 Md. 401 we observed in Board Waeldner, Educ. P.G. v. Co. 298 Md. of of 354, 359-62, (1984) 332, 470 A.2d 335 that SBE “has very broad statutory authority over the administration of the public State,” school system in this that the totality of its statutory authority constitutes “a visitatorial power of such comprehen- sive character as to invest the State Board “with the last word

343 the administra or concerning policy matter educational any on ”7 education,’ this is power that system of public tion of the “ ” supervision,’ that “authorizes general of control ‘one of local activities to superintend Board State sphere legitimate them within the keep of boards education controversy or that ‘“whenever operations,” of their or ad policy proper the educational dispute involving arises State, of the State system ministration all abuses of authorizes it to correct power visitatorial Board’s ”8 nullify irregular proceedings.’ all authority Edu- Halsey out in v. Board pointed Although, as we of (1975), 306, cation, 566, 572, 309 that 331 A.2d 273 Md. unlimited, the courts that and it is power is not visitatorial the broad statu- legal questions, ultimately purely must decide requires that deference tory given special mandate that it administers. In to its of statutes given interpretation Co. v. in Bd. Ed. Dorchester regard, we observed of 790-91, (1986), Hubbard, 774, 625, 633 305 506 A.2d Md. “[wjhile stat- may interpret agencies generally administrative issues, utes, other and while upon legal as well as rule administers which it agency’s interpretation of statute of Board of role the State weight, paramount entitled law sets it interpreting Education education also v. Arroyo from See apart agencies.” most administrative 576, Education, 646, 663-64, Md. 851 A.2d 587 Board 381 Heister, 140, (2004); v. 392 896 Board Education Md. A.2d (2006). rulings that SBE 342 statement means is What less, not given heightened, must be deference. supports line cases

This unbroken consistent (1) 13A.01.05.05.—that deci- precepts embodied COMAR involving dispute or a policy of a local board a local sions of the local board shall be regarding regulations rules Education, 537, 556, Quoting 7. from Resetar State Board 284 Md. v. denied, 838, 74, (1979), 100 A.2d cert. 444 U.S. S.Ct. 62 (1979). L.Ed.2d 49 Education, Quoting part v. 274 Md. 8. from Board Zeitschel (1975). 332 A.2d *17 prima correct, considered SBE as not facie and SBE will substitute its in judgment that of local such board unreasonable, cases unless the decision arbitrary, local is or (2) illegal, but SBE independent judgment shall exercise its on explanation record before it in the and interpretation the State laws school and State Board A regulations. local decision be regarded arbitrary board will as or unreason- able if is to sound contrary policy” “[i]t educational and it will as if it regarded illegal or is “an “[misconstrues law” 13A.01.05.05.B.(1) of discretionary powers.” abuse COMAR (5). C.(3) and and

In cases, statute, these SBE construing was a State not a local board It policy regulation. therefore owed little deference to city county decisions, but was to required exercise its own independent judgment to the 9-109, and, proper interpretation §ED long- under our jurisprudence, established the courts are required give interpretation, substantial deference to the SBE especially as interpretation, though ultimately conclusion, a legal laced with substantial educational no policy. giveWe more to the city county deference boards’ decision than SBE was It is give. decision SBE that we review.

Rulemaking Keying on part the comment in each of the three opinions opinions provide that the “guidance should applicants direction” other charter and local systems, city urge boards these cases that the SBE rulings “regulation” Code, constitute a in Maryland as defined § 10-101(g) Article, the State Government that it was not adopted requirements conformance of the Adminis Act, trative and that They Procedure it is therefore are void. as are our wrong, colleagues dissent. Act,

The State Administrative Procedure codified in title 10 (SG), major State Government Article contains three segments. rulemaking—the Subtitle deals with adoption regulations. cases; deals Subtitle 2 with contested and subti- permits declaratory rulings. SG 10-304 3 deals with tie “for a agency petition to a State submit person interested *18 the the manner which ruling respect to declaratory [agency] the enforces ... a statute that apply would [agency] petition.” forth in the on the facts set person property a or to issue a declara- agency the to such 10-305 authorizes Section the on the petitioner and agency which binds tory ruling, petition. set in the facts forth ruling under declaratory a very clearly recognizes

The law § 10- regulation. a SG § 10-305 different from something and, a definition is “regulation,” although the 101(g) defines one, expressly § ex- (g)(2)(iii) 10—101 encompassing and broad declaratory [agency] “a of the ruling from the definition cludes As statute, of title.” we a Subtitle 3 this as to ... under observed, declaratory is rulings to issue authority SBE COMAR adopted regulation. in a duly forth as well set 13A.01.05.02.D, regulation governing part which is SBE, to a for a declara- party petition a file appeals to allows law that is of a interpretation on the tory ruling controversy or that provides case existing material to to relating applies to procedures regulation appeals that That con- petition declaratory ruling. of a SBE’s review in the nature rulings are treated more declaratory firms that a adjudications adoption regula- of contested case than existing controver- designed specific tion. are to resolve They a dispute meaning sies that emanate from a over State or SBE regulation. school law have agencies have administrative recognized We through adoption policy discretion to establish either adjudications ad hoc contested case regulations through e unreasonable” to conclude “patently it would b it through which “every agency explains time an standards it proceeding promulgating a contested applies statute Comm’n, 305 v. Public Serv. Md. rules.” Balto. Gas & Elec. (1986). 1307, 145, 167-68, also MD 501 A.2d 1318-19 See 600, 483, Review, 581, 493 v. 356 Md. A.2d HMO’s Cost Pub., (1999); v. 304 Md. Consumer Protection Consumer (1985). 758-55, 60-61 Declaratory A.2d are rulings permissible thus a mechanism by may which SBE exercise its statutory “explain intent authority the true and meaning” school laws and disputes” decide “controversies and under those laws.

The rulings at issue here were to three specific individual happened cases that involve common relating some issues to the of ED statute, construction 9-109. That like one, charter school generally, movement was new not at all free from ambiguity, SBE was within its well discretion proceed in it did—adjudicating the manner the cases before offering “guidance” other applicants, pro- rather than formal ceeding regulations. with more and binding Funding

Commensurate *19 The principal in these is question appeals whether SBE 9-109(a). properly applied noted, and ED construed As section, that enacted 2003 as part comprehensive of law schools, governing public charter a county of requires education to to a public “disburse charter school an of amount county, State, federal money elementary, middle, and for and secondary that is students commensurate with the amount public disbursed to jurisdiction.” other schools in the local The city county and boards commence their attack on the SBE’s rulings by noting that the Assembly General declined to provide, itself, specific a funding public formula schools adopted but instead the “commensurate” standard. us, a supposed logic With that escapes they then to seem that, complain the Legislature provide because failed to a such specific formula, and detailed no right had create one. They urge that the determination of funding what is commen- surate with the amounts the other public disbursed to schools must, law, mainly a matter of be left in the hands of the boards, local by methodologies choosing—that of their a local conclusion, course, matter. a Such of raises specter of 24 of disparate implementing methods a uniform State law denigrate would SBE’s long-established authority ex- laws education meaning the true of plain intent enforcing. charged that it is per pupil use of premise, they attack first SBE’s

From arguing funding, of commensurate expenditures as a measure funding Assembly intended the General “[h]ad said so.” it would have ‘per pupil expenditures,’ on based from law exclude urge then that SBE was They of expenditures huge pupil categories calculation per its instruc- expenses, grant all funded expenses—transportation costs, expenses, and all administrative tional all maintenance that the they dispute SBE’s determination expenses. Finally, or, than partly, rather money, entire must be theoretically, wholly, services. patently fact that the statute is start with the clear

We so, necessarily that the agree, All ambiguous. parties to the other do not disburse funds school boards not in the The school boards do jurisdiction. local schools checks, funds, or to the deliver wads cash send wire or salaries the salaries payment teachers’ principals textbooks, else, purchase for the other instruc- anyone materials, equipment, or for supplies tional or incidental facilities, provide or to respective the maintenance of their lunch, for the transportation, guidance or health or services students. The “disbursed to other phrase schools jurisdiction” read No literally. the local therefore cannot be X can amount disbursed to the precise one calculate dollar Middle School in order “commensurate” determine *20 Y amount should be disbursed to the Public Charter School, there is no such disbursement. The Middle because framework, comparative whole therefore—what the disburse- ment to the charter schools should be commensurate being not even close to with—requires interpretation. It is clear on its face. precepts, fortunately

In two light ambiguity, such ones, heavy into The first is the converging play. come interpretations accorded deference must be to SBE laws, beyond especially interpretations go 348

purely legal determinations and affect or implement signifi- cant educational policy. long So as the interpretation not patently wrong, we would ordinarily defer to it. See ante. To the extent that further, we desire to look we would apply the most relevant rules of statutory construction to determine legislative intent, and, in that regard, may legisla- consider tive history the statutory purpose. State, See Twine v. (2006). 395 Md. 910 case, A.2d In this legislative history is especially pertinent. ED § 9-109 did not spring live and from instantaneously the head of Zeus was product of six years .but of deliberation and obvious compromise.

In September, 1996, SBE, reacting to what was going on around the country level, and at the Federal created a Public Study Charter School Group assist the Board developing a policy position regarding public charter schools. In its January, Report SBE, the Study Group, citing a February, 1996 report to the Education Commission of the States, observed that the key issues of concern regarding public charter schools seemed to be:

“(1) (2) inadequate capital funding facilities; cash flow problems (3) difficulty and the in securing credit; a large (and number laws and regulations paperwork reporting) which (4) continue to schools; of charter strug- gles in (5) local obtaining school board sponsorship; difficul- managing (6) ties schools; the business of the inade- quate planning.”

See Report Public Charter School Study Group to the Maryland Education, State Board 28,1997, January at 3 Report], [hereafter citing Charter Schools: Initial Findings, Bierlein, Louann A. Louisiana Educational Policy Research Center, Louisiana State University, p. 8.

Although Study Group concluded that the local school already boards had authority to establish charter schools and that legislation was not necessary for that purpose, recognized that the local boards had little guidance on issues to be considered in granting a charter and that State- *21 offered number and likely, therefore legislation wide was recommendations, among which were: of to

(1) approaches unique should “utilize schools Charter encourage to create conditions learning and teaching 4. at Report, reform.” education

(2) non-profit, non-religious, “should be Charter schools 4. homes.” Id. at non-sectarian, private not based and Id. at 7. charged. must not Tuition be the (3) legal status of “would have the schools Charter could, any jurisdiction and public other schools within rules, school, regulations, of local State waiver public request to relating those statutes other than and federal and State at In that and Id. 5. health, disabilities.” safety, rights, civil had a noted that local school boards Group regard, Study rules, they request their own could to waive procedure unnecessary for regulations “deemed to waive State SBE achievement, and student of academic operation, enhancement school,” had and SBE public local performance any authority Department the U.S. delegated by been might “that requirements to certain federal Education waive management a school.” operation inhibit flexible that, caveat, however, expressed Group at 5. The Study Id. waiver, achievement should notwithstanding any educational by by to same standards used continue be measured in the achievement schools. assess local, (4) State, be for eligible schools “should Charter ‘like-kind’ students federal funds as calculated disabilities, (i.e., gifted schools services other “[ljocal etc.)” talented, transportation, and that reasonable expect funding local charter systems school should State sys- for the commensurate with schools State at 6. Report tem’s schools.” (5) employees should be All in the teachers rights, responsibilities, “with all of the system, of the school law, including to the teachers granted and benefits join bargaining pur- local union for collective right Id. at 7. poses.”

(6) Appeals controversies relating a charter school *22 SBE, should continue to to go but the standard of review should be “somewhere ‘arbitrary, capricious, between or ille- ” gal’ and ‘de novo.’ Id. at 8. recommendations,

Based on those Department the State of Education, 1997, in July, adopted Guidelines for local boards to use when considering charter school applications. With respect funding, the departmental Guideline noted: “It expected Maryland public charter schools author- ized local education authorities will per receive fair pupil foundation grant that is at least equal the calculated operating costs for educating the like kind of students in existing public schools within jurisdiction. per- pupil calculation should eligible local, state, include federal funds the calculations. Other fiscal support such as transportation may be of part negotiations between the charter requestor and the local education authority.” Guidelines byUse Local Systems School in Considering Charter Applications, School Maryland State of Department Education, 1997, at July, 8.

Legislation to govern the creation and operation of charter codify schools and to some of the recommendations of the Study was Group introduced into the 1998 Session of the Assembly General as HB 999. law, As does the current HB 999, through a new title 9 to Article, the Education would have provided for and set conditions on the granting charters and the operation schools, charter prohibited a tuition, charter school from charging provided instead for 9—103(b) public funding. Proposed §ED provided that public charter schools were to managed by their respective boards operated trustees “independently the county ED § 9-113 required board[s].” the county board to “pay directly school, for each student enrolled in [the who resides in county, school] an amount not less than 90% nor more than 100% of the per pupil operating costs for educating the same kind of student in the existing public schools county” and made the charter school “eligible manner as in the same funds State, and Federal county, schools regular public students for like-kind calculated eounty.”. the local school part, by or in in whole opposed, was The bill major and the two boards, superintendents, county after (which year opposition their maintained unions teachers’ complete- it was stripped, were provisions All of its year). Task Force to than create a more nothing to do ly revamped for the 1999 legislation and recommend the matter study Laws, Md. amended, as 1998 it was enacted As so Session. ch. 720. HB 116 and in the form of made try

A was second introduced, HB As approaches. took different which SB directly to pay 116 would have *23 is the student, amount that school, “an for each enrolled for the county pays board amount that the equivalent in the public at a kind of student of the samé education of Edu Department State by [the as determined county Ways the House provision That was deleted cation].” that “each directing with one replaced Means Committee pupil the per shall receive in a charter school student enrolled § 5-202 of this calculated under expense figure basic current board could county and the the school Article” and provision substituted funding. The for additional negotiate statutory specific mandate to a have tied the would formula.9 Affairs Commit- and Environmental Economic Senate original and restored the to that amendment objected

tee taken SB approach was consistent with provision, which student, of the for each enrolled payment, 761 and required same kind of student” pays board for “the county amount the school, amount includes the State adding that “this at a to the § for State financial assistance 9. ED 5-202 sets forth the formula time, 5-202(a)(3) "basic defined the term public schools. At the aggre- "Statewide expenses” including certain enumerated current expense certain other expenditures current fund” less gate from the expenditures. share of basic current expenses.” The signif- differences were According icant. to the Fiscal prepared Note by Depart- Services, of Legislative ment the House version would have $3,901, produced per pupil payment of whereas the Senate $6,688. version would have required per pupil payment of passed. Neither bill

Bills were into introduced both Houses in the 2000 Ses- time, and HB sion—SB 543 526. This together two were respect to the funding provision, set at the lower level. They each would have the county pay school, to a “directly” student, for each enrolled an amount “that is equivalent the amount that pay board would for the education of the student at a tradi- tional public school in the county as determined the [State Education],” Department which amount would include the State share of basic current expenses. The Department of Legislative Services, Note, in its Fiscal provi- construed that sion as requiring payment of the basic current expense of $4,005, $3,518 which was less than the average per estimated pupil operating expenditures for public schools. The House Ways and Means provision Committee struck that and substi- language tuted the had used requiring payment of per pupil basic expense figure current calculated under 5-202, ED § ability more, with the to negotiate. but, Note, according to the Revised Fiscal the fiscal effect was the same—$3,518 per pupil less than the average per estimated pupil operating expenditures Again, schools. passed. neither bill

The same fate awaited three in bills 2001. House Bill 29 language used the previously upon insisted by Ways the and Means Committee—requiring payment of per pupil the basic expense current ED § calculated under 5-202 ability with the negotiate for more. That approach would have produced $4,126 $3,700 per pupil, per pupil less than the estimated 2002 average per pupil operating expenditures in public the 721, schools. Bill Senate the using language favored by the Senate, would have same level of funding provid- ed schools, to traditional which would produced have a Bill 604 $7,700 per pupil. Senate approximately of payment had no charter schools but that authorized a bill was shorter Fiscal Note “assumed” at all. The funding provision $7,700 per pupil level at the and local funds existing State was the Senate but passed Bill 604 used. Senate would be Bill which with House in House to conform amended members appoint House refused the House. The passed however, not Committee, and so the bills were a Conference enacted. Delegates and House of the Senate

The stand-off between of Senate repetition Bill 213 was a in 2002. Senate continued no but had It for charter schools provided Bill from 2001. but was rewritten passed It the Senate funding provision. with the House’s consis- Delegates of to conform the House only should receive view that the charter schools tently held §ED 5- calculated under expense basic current per pupil amendments, in the House 202. The refused to concur Senate amendments, from those House refused to recede was unable to resolve the differences. Conference Committee result, As a the bill died. part, may in 2003. In impasse finally was broken that the major change legislature

have been influenced of, respect in 2002 with to the level and method of made education. See determining, general funding State Laws, promised significant ch. The 2002 law Md. 288. education funding programs. increase State Among things, repealed concept other definition 5-202, §in expenses” “basic current which the House formula, had its charter school Delegates pegged per “annual foundation concept pupil substituted amount.” introduced, Bill followed the model of Senate

Senate 2001) (and no Bill 213 in 2002 Senate Bill 604 and contained before, Department Legislative As funding provision. Note, Services, “existing its Fiscal assumed State would be used to the schools” and estimat- operate local funds *25 FY total for schools in per pupil expenditures public ed the $9,500. 2004 to be Education Committee considered an amend- Senate that “a shall provide county

ment disburse commensurate rate State, county, money and Federal for middle, char- elementary, secondary public students to a public ter school to other schools in the local disbursed added). jurisdiction.” (Emphasis apparently It rewrote that amendment, however, actually for the Committee amendment ultimately adopted—that added was the form charter school an amount public board “shall disburse to a State, middle, money elementary, and Federal county, secondary students that is commensurate with the amount jurisdictions.” disbursed to other schools the local added). (Emphasis

In a Revised Fiscal Note observed assessing language, in fiscal 2004 are “[ajverage pupil expenditures estimated $8,800, $7,300 at from in low districts to ranging spending $10,500 in districts. These estimates exclude high spending payments, capital outlays, teachers’ retirement and debt ser- vice.”

As it in the the House past, Ways had done and Means bill, Delegates Committee rewrote the and the House of amended, setting up it as so thus another Conference passed time, rejected Committee. This the Conferénee Committee amendments, the House both Houses concurred in the Confer- ence and the bill was enacted and Report, signed Committee essentially passed the Governor as the Senate had it. several from this that for things history.

We learn One is six years Legislature struggled trying fashion alternatives, public funding. formula for It considered several model, some to the basic tying funding expense current some using equivalence expenditures “the same kind schools, of student” in other one pegging at expenditures, yet between 90% and 100% such another rate. end, disbursement of a In requiring commensurate was not a formula or compromise specific equiva- actual lence but an amount “commensurate” with the amount dis- That left some necessarily bursed other schools. *26 interpretation—what room for Was commensurate and how was the amount disbursed to other schools to be actually pub- determined when no amounts were disbursed to lic schools? that, presume Legislature

We when the enacted such lynchpin law as the a new and untested education that in years making, endeavor was six the it must have body envisioned that SBE—the it has vested with consistently authority explain, the ultimate administrative to and interpret, apply primary the education laws—would have the to authority interpret, authority imple and the ultimate ment, that provision. nothing legislative There is in the record to in suggest authority intent to vest such ultimate boards, which, noted, the local school not only could lead disparate methodologies for a uniform law implementing State but allow the very consistently opposed entities had effort to legislative throttle it their through administratively funding policies. unreviewable thing

The second that emerges clearly rather from the legislative history—both the various drafts and the Fiscal prepared by Department Legislative *27 added). in construing not in was error

(Emphasis SBE money. of The SBE says—disbursement to mean what provision for the negotiate the charter schools rulings allow services, for which services, if rather have the they would county boards. to reimburse they would cannot be forced on the prohibited; they just are not Services county at whim of the boards. charter schools 9-109(a) boards to requires § ED Because State, money and federal county, “an amount disburse middle, students” that is commen secondary elementary, schools, to the other with the amounts disbursed surate SBE, statutory authority explain of its in the exercise clearly was meaning requirement, true intent I must include Title to conclude that such entitled in funds, that students to the extent special education eligible are for those services. charter schools respect to the 2% deduction for central adminis With to allow the simply unwilling the Board was expenses, tration range amounts for the entire county boards to deduct city and to incur and instead they choose expenses of administrative grant in already place respect with adopted approach administration, Im- the Board found to be reasonable. which schools, in that determination was that the plicit being autonomous, somewhat would not need and should not be full subject range by control exercised the central schools, regular public administration over the and that they not be of that total charged therefore should with a share no in expense. legal We find error that determination. reasons, For all of these we believe that the of Special Court Appeals right properly reached the conclusions and reversed the decisions the two circuit courts.

JUDGMENTS OF COURT OF IN SPECIAL APPEALS AFFIRMED, NOS. 100 AND WITH COSTS.

BELL, RAKER, C.J. and J. dissent.

RAKER, J., BELL, C.J., dissenting, joining. majority this case asserts that the State Board of (“SBE”) Education “was well within its discretion to proceed in the manner it did-adjudicating the cases before it and offering ‘guidance’ applicants, to other rather than proceeding more formal and binding regulations.” Maj. at op. 929 A.2d at 126. I disagree. The declaratory rulings issued effect, SBE regulations resulted if not name. The policies adopted within those rulings are meant to have gener- and, al widespread application, in my opinion, should have subject been the of formal rulemaking procedures.

Prior to issuing declaratory cases, its rulings these had interpreted (1978, never Repl.Vol.) § Md.Code 9- *28 109(a) 336, of the Education Maj Article.1 See at op. 929 A.2d In at 120. its rulings, provided which legislative neither the components of formal rulemaking, nor the quasi-judicial com of ponents adjudications, administrative policies created 9-109(a) § interpreting that it intended to to apply every In my opinion, policies State. these should adopted not have been a through declaratory ruling. noted, subsequent statutory

1. Unless otherwise all references herein (1978, 9-109(a) Repl.Vol.) shall be to Md.Code 2006 of the Education Article. when, if, or to what extent addressed This has never Court rulings. declaratory through may implement policies agencies proceed must agencies situations when addressing cases Our are, adjudication, to rulemaking, opposed formal through however, on this point. instructive discre- possess do not absolute agencies that have noted

We In alone. adjudication ad hoc through policy tion to establish (1990), 687, we 575 A.2d 324 319 Md. v. Comptroller, CBS Treasury’s decision Comptroller addressed taxes for corporate it calculated by which the method change for the that it was error We held businesses. out-of-state through adjudication, its methods change Comptroller rulemaking proce- in formal to engage the agency “that the administrative initially acknowledged dures. We is allowed substantial agency an is enhanced when process of rule by way establishing policy flexibility to decide between 327. 575 A.2d Id. at way adjudication.” of byor however, abused, may, choose noted that discretion We as follows: explaining indicate, rulemaking requiring of the cases

“As a number fairness when an aspect an adds procedure this mode law or rule. change existing make a intends to agency a new operation of by prospective produced That fairness is notice, hearing, by rule rulemaking, but accompany processes comment adjudication. from administrative absent are sometimes circumstances rein- rulemaking certain advantages sometimes be re- may this procedure force the view quired.” omitted). (internal citations 695-96, A.2d at 328 at

Id. rule dictat- “all-encompassing” adopt we refused While that “when a we concluded rulemaking required, is ing when represented application, embodied general policy rule, policy general application, to different changed Id. at by rulemaking.” accomplished must be change A.2d at 328.

359 Chimes, 336, In Health v. 343 Md. A.2d Dept. 681 484 (1996), addressed the Developmental we Disabilities Adminis to implement growth cap tration’s decision a to control costs health community-based providers. explained care We underlying program imple both the statute and its DDA menting regulations required expenditures. to limit “ Therefore, ‘growth cap’ merely effectuated policies, these 346, change but did not the law.” Id. at 681 A.2d at 489. Formal rulemaking required. was therefore not We stated follows:

“DDA did not formulate new rules of widespread applica- tion, law, or change existing apply new standards retroac- tively to the detriment of an that had entity upon relied agency’s past pronouncements. ‘growth cap’ at issue here to a applied only providers limited number of in their a capacity agency pursuant as contractors with state subject contracts between the parties termination by either side.”

Id. Review, 581, in MD v.

Similarly, HMO’s Cost 356 Md. 741 (1999), A.2d 483 we addressed the Health Services Cost Review Commission’s decision to an inflation adopt adjustment (“IAS”) system which was applied particular health facilities on a case-by-case Although basis. we found formal rulemak- ing procedures we unnecessary, noted that the underlying adjudication rules, did not involve the formulation of new law, change existing application of standards that had a retroactive effect. Id. at 741 A.2d at 494. ex-We plained as follows: simply use,

“The IAS is methodology, long to effectuate the law. It reflects set forth policies by the General Assem- bly. It is a from starting point which the Commission proceeds case-by-case order to take into account the individualized costs and particular needs hospitals.” Comm’n, Id. See also Balto. Gas & Elec. v. Public Serv. (1986) Md. 501 A.2d (finding rulemaking unnecessary adjudication because the was not “in one which retroac- applied were or new standards

materially modified *30 the upon had relied company of a to the detriment tively Protection Consumer past pronouncements”); Commission’s (1985) Pub., 48, A.2d 61 Md. 501 v. Consumer adjudica- unnecessary because the rulemaking (finding formal rules of or formulate existing law even change tion “did not widespread application”). Safety Public Dept. v.

Alternatively, Massey Secretary, in Services, (2005), 496, 886 A.2d 585 and Correctional 389 Md. were rulemaking procedures formal we found that adopted of certain directives validity the addressing after Services. Safety and Correctional of Public Department Maryland prison State an inmate appellant The was had lost discipline subjected had been system who found to have violated being credits after diminution Court, appellant argued Before this challenged directives. have that should regulations at issue were that the directives agreed. We rulemaking procedures. to formal subjected been Court, Wilner, as follows: writing explained for the Judge statements that have constitute challenged directives] “[The institu- all of the correctional application throughout general institutions; to all inmates those apply tions in DOC effect; they adopted by were ‘unit’ have future they administers; are in they unit out laws that carry standards, rules, interpretation, statements of form of of policy.” and statements 507-508, at 592. noted further

Id. at 886 A.2d We rulemaking regula- from formal exempt were not directives Division management internal concerning only tions regulations, Because the directives were of Correction. through rulemaking procedures, formal adopted had not been Id. at A.2d at 587. invalid. we held them agencies that administrative cases demonstrate The above through policies discretion to issue not unfettered possess do repeatedly choose. have noted they We procedure whatever limited discretion should be agency’s that an administrative (1) (2) law, standards existing applies new changes where it (3) widespread application. creates rules of retroactively, Further, agency engage we have concluded that an must changes existing formal when it laws or creates rulemaking CBS, new standards that have retroactive effect. 319 Md. at 696, 575 A.2d at 328. majority rulemaking states that formal was unneces- in this because the at issue were

sary “rulings case here specific happened three individual cases that to involve ED relating some common issues to the construction of 9- Maj. op. 109.” at 929 A.2d at 126. I It disagree. is clear its issuing declaratory rulings, SBE created new policies general and widespread application where none existed before. SBE should have in formal rulemak- engaged ing procedures. *31 noted,

As to prior issuing declaratory rulings, these SBE 9-109(a). interpreted § had never input With limited from involved, parties from parties none outside with an 9-109(a), § interpretation interest a adopted general appropriate formula to determine the amount of fund- schools, ing to be disbursed to required each “charter must be within 30 agreement completed calen- days dar from approving the date the decision the charter application,” and mandated that the “total average per pupil adjusted amount shall be a 2% a by reduction as reasonable cost to the charter school for these central office rulings “specific functions.” These are not to three individual cases.” SBE as much noted when it stated as follows: ‘We Opinion have issued this as guidance only and direction not parties appeal this but also to the other charter school applicants and local school ...” systems Maryland

Formal rulemaking necessary policies was to create the at A issue. declaratory ruling, provide which failed to even the quasi-judicial protections of an adjudication, administrative was an inappropriate mechanism for the formation such widespread policies.2 As the Attorney General noted an majority 2. “declaratory rulings The states that are treated more in the adjudications adoption nature of regula- contested case than the aof 362 President of the State Klingler, Audie D.C. letter to G.

opinion Examiners: Chiropractic Board of (1984, 2006 Repl.Vol., history [Md.Code “The seq. § 10-304 et Arti- of the State Government Cum.Supp.) as an alternative it was not intended suggests cle] gener- agency applies when the issue before rulemaking Rath- jurisdiction. subject regulatory to its ally to all those to enable er, was meant declaratory ruling procedure issue to narrowly more focused concerned with a persons situation. particular advice about their binding obtain * * * likely of the APA is not declaratory ruling procedure if rulemaking the issue satisfactory alternative to be a agency’s to the persons subject all agency affects before persons directly if not the issue affects jurisdiction equally; adjudicative if facts subject agency’s jurisdiction; to the insufficient probably are petitioner presented issue; if legislative informed resolution of the allow majority is correct to the Maj. op. 929 A.2d at 126. The tion.” at declaratory rulings adjudications and extent that both administrative Declaratory parties grievances particular to the involved. focus on however, differ, adjudications respects—most in other rulings from provides. importantly, process each in the (1984, seq. Repl.Vol., Cum.Supp.) 10-301 et Md.Code agency binding declara- Article allows an to issue the State Government order, tory explain apply regulation, rulings how it would Attorney has particular party's grievance. The General to a statute explained procedure as follows: this premised upon petitioner's "Ordinarily, declaratory ruling is *32 § adjudicative underlying petition. SG 10- facts assertion of the 305(b) petition- declaratory ruling binds the unit and the that 'a states petition.’ As one commentator er on the facts set forth in observed, only 'ordinarily declaratory where orders should issued by subsequent 1 be altered events.’ facts are clear and cannot critical 2.40, (1985).” Koch, at 106 Law and Practice C. Administrative 3, (1991). Att'y Op. Gen. 16 76 adjudication agency engages to resolve a an administrative in Where case, quasi-judicial in proceedings are and adversarial contested 125, Ins., Maryland 652 A.2d v. 337 Md. nature. See Weiner (1995). declaratory rulings, proceed on a opposed to which 131 As facts, procedures adjudicatory hearings trial-type involve given of set Services, 14, County 343 Md. safeguards. v. P.G. Social and 32-33, See C.S. 470, (1996). 479 680 A.2d

363 are resolving disputed. the issue facts that are essential Bonfield, administrative leading scholar state Professor law, decline to issue a agency that an should suggests ruling, though technically declaratory ruling “where the would necessari- binding only agency petitioner, on the who not parties of other have legal rights determine the ly resolution opposed and who are petition, filed such a ... or who are ruling procedures by declaratory of the issue procedure.’ A. declaratory ruling unrepresented Act, Procedure 60 Iowa Bonfield, The Iowa Administrative (emphasis original).” at 819 L.Rev. (1991). 3, 15-17 Gen. Op. Att’y to ensure “fair- rulemaking procedures APA provides general application.” and mature consideration rules

ness (1990). 37, important The Act serves the Att’y Gen. Op. educating adminis- safeguarding public rights function in its policies trative lawmakers. Id. The enumerated APA’s contemplated are the declaratory rulings type I Accordingly, would reverse the rulemaking procedures. Special Appeals of the Court of and remand with judgments affirm the of the Circuit Courts for judgments directions to County. and Prince City George’s Baltimore joins BELL has authorized me to state that he Judge Chief dissenting opinion. this 929 A.2d 136 A., ux., A.A. JOHN et Next Friends of

v. FOR BOARD OF EDUCATION HOWARD COUNTY. Term, Sept. No. 2006. Appeals Maryland.

Court of July 2007. Notes Services—is that the determination of funding commensurate would neces sarily be on a In per pupil basis. Exhibit to the SBE opinions, explained the Board that there was no Statewide schools, methodology county for how boards fund their various methods were used nationally respect to charter that, in funding, choosing and average per pupil fund ing, the Board was following approach of the legislatively- Education, Finance, created Commission and Ex Equity, on (the Commission, chairman, cellence Thornton named for its Thornton), Alvin later in adopted by Assembly the General (2002 Bridge Laws, Excellence in Public Schools Act Md. 288). ch. The Board average concluded that the per pupil approach had the simplicity virtues both and flexibility yet there was as no history enrollment at the three a more refined enroll- “upon which base charter schools history such a devel- of funds.” Once ment-driven allocation find added, be revisited. We that issue could the Board ops, average per pupil in Board’s use of no error legal approach. funding methodolo attack on general As of their part complain require about boards gy, city cash, than rather that the be disbursed ment expenses, I education services, special inclusion of Title expenses deduction for administration the limitation of the find no funding. We calculation of commensurate to 2% the any respects. these error 9-109(a) requires §ED the disburse- final version of money.” State, and federal county, of “an amount ment