State Board of Education Explains Timing for MOE Waiver Decisions

In a letter received by MACo today from the State Board of Education, the Board has reaffirmed its published timetable for the evaluation of county requests for waivers from the maintenance of effort funding requirements. As noted previously here, the published timetables do not connect with those in current state law that requires the county to be notified of its decision no later than May 15.

From the State Board’s letter:

Once sine die had passed without any legislative changes to the MOE waiver process, we established a briefing schedule that took into consideration the length of time a county might need to file its brief and all relevant documents (by May 3); sufficient time for the local school systems and the public to respond to the county’s factual and legal arguments (May 10); and some time for the county to respond to those commenters (May 12). We believed that it was critical, even with a compressed schedule, to give all parties and the public a fair opportunity to participate in the process.

That compressed schedule also compressed the time allotted to the State Board for decision-making. As you point out, the current statute says that the State Board shall inform the county by May 15 of approval or denial of the waiver request. We requested advice of counsel on the mandatory nature of the May 15 deadline. We concluded that the absence of a sanction for failure to meet the deadline reflected the non-mandatory nature of the deadline. It is well settled in Maryland case law that, when “shall” is used in an unsanctioned statute directed at a court or administrative agency’s time limit for opining, it is directory only. G & M Ross Enterprises, Inc. v. Board of License Commissioners, 111 Md. App. 540, 544-45 (1996)(citing cases back to 1908). Therefore, based on the plain language of the statute and the case law, we concluded that the State Board could extend its own deadline beyond May 15 for issuing an opinion. The State Board meets on May 25, 2010. It seemed reasonable to set that date for the public hearing mandated by statute with an opinion to be issued shortly thereafter.

Simply put — according to the letter: “…when ‘shall’ is used in an unsanctioned statute directed at a court or administrative agency’s time limit for opining, it is directory only.” And using this interpretation, the Board has established a timetable that has counties seeking a waiver receiving their hearing before the Board on May 25, “with an opinion to be issued shortly thereafter,” according to the Board’s letter.

Michael Sanderson

Executive Director Maryland Association of Counties

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