Gover­nor’s author­ity over the school year is chal­lenged

Baltimore Sun - - FRONT PAGE - By Liz Bowie

Mary­land’s at­tor­ney gen­eral be­lieves Gov. Larry Ho­gan may have ex­ceeded his author­ity when he is­sued an ex­ec­u­tive or­der this month re­quir­ing all pub­lic schools to start af­ter La­bor Day and fin­ish by June 15.

Sev­eral law­mak­ers had asked the at­tor­ney gen­eral’s of­fice for a rul­ing af­ter Ho­gan made his an­nounce­ment on the Ocean City board­walk last month. The gover­nor de­clared that there would be a longer sum­mer break, start­ing next year, for most school­child­ren in the state.

The let­ter of ad­vice from the at­tor­ney gen­eral’s of­fice was made pub­lic Fri­day evening.

“I can­not say un­equiv­o­cally that the La­bor Day ex­ec­u­tive or­der ex­ceeds the gover­nor’s author­ity, but I be­lieve it is likely that a re­view­ing court, if pre­sented with the is­sue, would con­clude that it does,” wrote Adam D. Snyder, a lawyer in the of­fice of At­tor­ney Gen­eral Brian E. Frosh.

Lo­cal school boards and su­per­in­ten­dents

had crit­i­cized the gover­nor’s or­der, say­ing they would likely have to take away most of spring break to squeeze in 180 school days while com­ply­ing with his con­straints.

The gover­nor’s of­fice im­me­di­ately dis­missed the at­tor­ney gen­eral’s ad­vice as po­lit­i­cal.

“Even by lawyer stan­dards, tak­ing 24 pages to reach a ‘I don’t know,’ is un­prece­dented,” Ho­gan spokesman Doug Mayer said in a state­ment. Snyder’s “un­so­licited pre­dic­tion of a hy­po­thet­i­cal court case seems more po­lit­i­cally in­flu­enced than an opin­ion based on le­gal prece­dence.”

Ho­gan had ar­gued that Mary­land busi­nesses, es­pe­cially in Ocean City, would profit from the later start date, and that it would give fam­i­lies more time to­gether.

In writ­ing the let­ter of ad­vice, Snyder said that while the gover­nor has broad power to direct the ac­tions of the ex­ec­u­tive branch of state govern­ment, he does not have the power to direct state and lo­cal school boards, which are in­de­pen­dent bod­ies.

State ed­u­ca­tion laws are gen­er­ally passed by the Gen­eral Assem­bly or pro­posed by the Mary­land State Board of Ed­u­ca­tion as pol­icy and later ap­proved by the leg­is­la­ture.

In ad­di­tion, Snyder wrote that ex­ec­u­tive or­ders should not di­rectly reg­u­late the pub­lic, but that in this case the or­der af­fects 800,000 stu­dents and their par­ents. “De­lay­ing the start of the school year un­til af­ter La­bor Day thus seems more like mak­ing law than ex­e­cut­ing it,” Snyder wrote.

The Mary­land As­so­ci­a­tion of Boards of Ed­u­ca­tion con­vened a group of at­tor­neys and school board mem­bers Mon­day to look at the le­gal ar­gu­ments that sup­ported the right of lo­cal school boards to de­cide their school cal­en­dars.

They for­warded those ar­gu­ments to the at­tor­ney gen­eral’s of­fice, said John Woolums, a spokesman for the as­so­ci­a­tion.

The at­tor­ney gen­eral’s ad­vice is likely to throw into dis­ar­ray the process for de­cid­ing next year’s school cal­en­dar. That plan­ning is tak­ing place this month and next in most of the state’s 24 school dis­tricts. In ad­di­tion, the let­ter opens up the pos­si­bil­ity of a court chal­lenge by a lo­cal school board or par­ent.

“Clearly this opin­ion will in­form the work of lo­cal school sys­tems and school boards, which may want to take a wait-and­see ap­proach to the le­gal­ity of the or­der and what the leg­is­la­ture may do,” Woolums said.

In Bal­ti­more County, the school sys­tem is putting to­gether two cal­en­dars — one that starts school be­fore La­bor Day, and one af­ter. Woolums said other school sys­tems are tak­ing sim­i­lar ac­tion.

The two leg­is­la­tors who sought the ad­vice said they would re­view it care­fully. Sen. Paul Pin­sky, a Demo­crat from Prince Ge­orge’s County, sug­gested he would urge school sys­tems to plan as though the ex­ec­u­tive or­der didn’t ex­ist.

“I want to sug­gest to the 24 su­per­in­ten­dents to ig­nore the ex­ec­u­tive or­der,” Pin­sky said. He said if 24 ju­ris­dic­tions ig­nore the or­der, the gover­nor would then have to de­cide whether to sue them all.

Del. Anne Kaiser, a Mont­gomery County Demo­crat, said that “my un­der­stand­ing is that the law is not on the gover­nor’s side, but it is not cer­tain.”

Asked whether she thought leg­is­la­tion would be in­tro­duced to re­verse the ex­ec­u­tive or­der or whether le­gal ac­tion would be con­sid­ered, she said, “I think all the op­tions re­main on the ta­ble.” She said leg­is­la­tors should step back and take a look at ev­ery­thing in the let­ter.

Mayer, the gover­nor’s spokesman, said the let­ter raised is­sues of propriety. He said House Speaker Michael E. Busch and other law­mak­ers have en­gaged in “par­ti­san lob­by­ing” of the at­tor­ney gen­eral’s of­fice.

“We hope it isn’t hav­ing un­due in­flu­ence on the abil­ity to ren­der im­par­tial le­gal anal­y­sis,” Mayer said. “The at­tor­ney gen­eral’s of­fice has a lot of po­lit­i­cal opin­ions and we agree with al­most none of them, in­clud­ing this half­hearted one.”

CAITLIN FAW/BAL­TI­MORE SUN

Gov. Larry Ho­gan signed an ex­ec­u­tive or­der in Au­gust re­quir­ing Mary­land pub­lic schools to be­gin af­ter La­bor Day start­ing next year.

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