AG on Transportation Letters: Timing and Shift are Department Policy, Not Law

The Office of the Attorney General has offered its opinion on the recent controversial process letters sent by the Maryland Department of Transportation (MDOT). In its opinion, the Department is not obligated by 2016 legislation to require the project analysis for “scoring” for this year’s CTP process, and is not authorized to require the proposed shift of analytical responsibilities to county governments.

The letter – issued today to House Appropriations Committee Chair Maggie McIntosh, addresses both the timing and substance of this recent high-profile controversy.

On the timing — whether the scoring analysis is required to be used for the development of the Consolidated Transportation Plan (CTP) currently in process — the letter reads:

Because Ch. 36 directs MDOT to adopt regulations on or before January 7, 2017 , to “carry out” the scoring system, I believe the most reasonable construction of the legislation is that it does not require MDOT to implement the new scoring system for the CTP currently being developed, as the proposed CTP is to be submitted to the General Assembly on or before September 1, and the approved CTP is to be submitted with the budget bill in January. If MDOT intends to apply the new scoring system to projects being evaluated for inclusion in the upcoming CTP, it is my view that it may do so only if it first adopts the implementing regulations required by Ch. 36.

On the process — whether the Department is required by the legislation to shift a wide range of analytical and informational responsibilities to county governments — the letter reads:

No provision of Ch. 36 requires that MDOT request the various studies, analyses, and data identified, nor does the law in any way impose an obligation on local jurisdictions to provide this information to MDOT. To the extent that MDOT is requiring local jurisdictions to submit this information, it appears to be doing so as a matter of departmental policy, not because Ch. 36 requires that it do so. As to whether MDOT has the authority to impose such a policy, it is my view that it does not.

Relevant references: Full AG Letter | Chapter 36 (HB 1013) of 2016

The balance of the Attorney General’s letter of advice offers further background into the current issue.

Coverage in the Baltimore Sun offers a capsule summary of the recent events:

The conflict over the law reopened with a July 28 letter in which Deputy Transportation Secretary James F. Ports Jr. told counties they must submit results of a dozen studies to the state by Aug. 15. Pointing out that the Hogan administration opposed the legislation, he insisted that the law required the department to seek that information in time to include projects in this year’s draft Comprehensive Transportation Program, due Sept. 1.

“Due to this legislation, projects previously funded in the CTP that receive low scores will be in jeopardy and could be de-funded,” Ports wrote. He urged counties to deliver the “required” information as soon as possible. The CTP is a six-year plan that is revised each year to account for state capital spending on all modes of transportation — from roads, to transit, to airports, to the Port of Baltimore.

The deadline came as a surprise to county officials.

Chairman McIntosh, quoted in the Sun, offered her view on flexibility for implementation ahead, and pledged legislative attention:

McIntosh noted that the bill gives the governor the authority to fund projects regardless of the score. She said the bill’s purpose was to require the department “to be more transparent about how and why they make their decisions.”

McIntosh said her committee would hold a hearing on the department’s actions, probably in the early fall.