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Md. legislators, transportation officials get conflicting advice on new law

Delegate Maggie McIntosh. (File)

Del. Maggie McIntosh says the Hogan administration’s interpretation of a new law on transportation funding has ‘upset everybody.’ (File)

Lawmakers, state and county officials are likely to have a lot to talk about when it comes to how a new transportation funding law is being implemented.

The topic is certain to come up as county leaders descend on the Eastern Shore Wednesday for the  start of the Maryland Association of Counties summer conference, particularly now that transportation officials and an attorney for the legislature differ on how and when a new project scoring system is to be used.

Del. Maggie McIntosh, chairwoman of the House Appropriations Committee, said “veiled threats” in letters from the Maryland Department of Transportation were designed to gin up anxiety among county leaders and provoke a backlash against the legislature.

“They got the reaction they wanted,” McIntosh said. “They upset everybody.”

John Barr, president of the Maryland Association of Counties, wrote Transportation Deputy Secretary James F. Ports, saying the organization has “received acute concerns from county officials” regarding the agency’s decisions to score projects now before regulations are drafted.

McIntosh agreed.

“The whole point of this law was to be transparent, to say ‘do a ranking, you come up with a ranking, governor, and just be transparent with people on how you are making these decisions,'” McIntosh said. “This is the opposite of transparency. They’ve done scoring but no one knows what the scoring is. We don’t know how they’re scoring this. It was all supposed to be worked out in the regulatory process with public comment. We don’t do things this way.”

McIntosh, in an attempt to tamp down some of that anxiety, asked the legislature’s attorneys to review how the department was implementing the law. She also said lawmakers will have a hearing on the issue sometime in the fall.

In a letter to legislative leaders, David W. Stamper, an assistant attorney general assigned to the General Assembly, wrote that Maryland Department of Transportation was not required to begin using a new scoring system to rank local transportation requests until 2017 and after it drafts formal regulations establishing the new system.

Stamper, in his letter to legislators, said the General Assembly’s intent appeared clear and that the transportation department’s “developing and applying the scoring system required by (the law) without first adopting the implementing regulations would be contrary to legislative intent.”

Stamper, in his nine-page letter, said the new law “is not entirely clear on this point. Another possible interpretation, one that arguably is supported by statutory text, is that MDOT must apply the scoring system” to the list of projects currently being developed “and that it may do so without first adopting regulations.” Still, Stamper, who represents the legislature, said he sided with his client’s interpretation of the law.

Stamper’s letter comes in response to legislator’s questions about how the Maryland Department of Transportation is starting to implement a new law supporters say is meant to create transparency in how the state funds local transportation priorities. These priorities are contained in a six-year departmental plan that is updated each fall.

Gov. Larry Hogan and opponents of the legislation, claim the motivations are more political and will force state money into mass transit projects in urban jurisdictions. Hogan also said the changes are a usurpation of executive branch functions.

Counties in the last two weeks received two separate letters from Ports. The first requested a dozen studies for each local request no later than Aug. 15. The letter went on to threaten that the agency would not consider any project that is not supported by the requested documentation — a claim Ports later retracted.

Last week, Ports sent a second letter to counties announcing that all but seven projects would score too low this year to be eligible in the new $917 million spending plan. Baltimore City and County were told that neither had projects which scored high enough for funding this year.

County officials said they were surprised by the letter and had not been shown the formula that the state was using.

A transportation spokeswoman, in an email, defended the agency’s decision to move forward with scoring projects and suggested the department was acting on advice from its own attorney.

“As for when projects must be scored, it is interesting that the General Assembly’s own Assistant Attorney General recognizes in his letter ‘that the legislation is not entirely clear on this point,’ Erin Henson wrote in an email. “His letter also acknowledges there is another interpretation supported by statutory text ‘that MDOT must apply the scoring system to the (consolidated transportation plan) currently being developed and that it may do so without first adopting regulations.’  This alternative is the advice we received from MDOT’s Assistant Attorney General. This advice is consistent with MDOT actively following the new (Public Information Act) law, effective October 1, 2015, while formal regulations have not yet been promulgated.”

It is not clear how the state is scoring the projects. State officials have promised to re-score them should jurisdictions meet Monday’s deadline to provide detailed information on 12 different categories, but it is not clear how that would factor into the new evaluation or what weight it would be given.

Henson did not respond to a request for an interview and for a copy of the formula the department is currently using.

“It is unusual to see legislators arguing against the implementation of laws they just passed,” Henson wrote. “Given this new interpretation, we are reviewing the General Assembly’s Assistant Attorney General’s opinion and what options it provides us.”