Maryland Attorney General Opinion 101oag003

PUBLIC PROPERTY
COMMISSION ON ARTISTIC PROPERTY – MANAGEMENT AND
TRANSFER OF PUBLIC PROPERTY – INTERNAL MANAGE-
MENT EXCEPTION TO RULEMAKING REQUIREMENT

February 8, 2016
The Honorable Timothy D. Baker
State Archivist
Maryland State Archives

On behalf of the Commission on Artistic Property (the
“Commission”), you asked for our opinion on certain issues
relating to the Commission’s custody and control over the artistic
property held by the State. The Commission is the body within the
Maryland State Archives (the “Archives”) that is charged with the
care and official custody of most of the “valuable paintings and
other objects of decorative art owned by or loaned to the State.”
Md. Code Ann., State Gov’t (“SG”) § 9-1021(a). In addition, when
the State purchased the Peabody Art Collection from the Peabody
Institute in 1996 for $15 million, the Commission also became the
“official custodian” of that collection. SG § 9-1021(a)(2). “With
respect to the objects subject to its official custody,” the
Commission must “keep a continuing inventory of the objects” and
“be responsible for and supervise the acquisition, custody, display,
location, preservation, proper care, security, and restoration of the
objects.” SG § 9-1021(a)(1)(i), (ii).
Pursuant to its statutory mission, the Commission has
maintained a comprehensive inventory list of all of the artistic
property in its official custody. As we understand it, however,
some objects that presently are recorded on the list may not belong
there. For instance, some objects are damaged beyond restoration,
and some might not qualify as “valuable paintings” or “other
objects of decorative art.” Additionally, approximately 25 objects
listed as part of the Peabody Collection may not even be owned by
the State, because they were not included in the 1996 purchase
contract between the State and the Peabody Institute. The
Commission has thus begun drafting a collections management
policy to establish criteria for removing an object from the list or—
as a museum curator might describe it—“deaccessioning” a piece
from the collection.1
1
We note for purposes of clarity that, although deaccessioning an
object from a private museum’s collection might mean both removing
the object from the museum’s inventory list and selling the object, it

3
4 [101 Op. Att’y

You have raised a series of questions concerning the
Commission’s authority to formulate a deaccession policy and the
extent to which, in doing so, the Commission is bound by the rules
governing the disposition of State property set forth in the State
Finance & Procurement Article. These questions, paraphrased
somewhat, are as follows:
(1) Does the Commission have authority to
remove objects from the official list of artistic
property? In particular, may the Commission
remove from the inventory list objects that the
Commission believes the State never
acquired?
(2) Does the Commission have authority to sell,
transfer, or dispose of objects subject to its
official custody? If so, must the Commission
follow the rules in the State Finance &
Procurement Article governing the
disposition of State property, including the
requirement to obtain approval from the
Board of Public Works?
(3) Does the Commission have authority to
formulate an official collections management
policy, including a deaccession policy, and, if
so, must the Commission promulgate the
policy through regulations?
In our view, if the Commission is simply removing objects
from the official list of artistic property without transferring
ownership or otherwise disposing of the property, the Commission
has inherent authority to do so because the General Assembly has
delegated to it the power to decide what qualifies for inclusion on
the list. Similarly, if there are objects on the inventory list that the
State does not actually own, the Commission need not obtain
approval to remove those objects from the list. If the Commission

makes sense to distinguish the two concepts for public entities.
Removing a piece of artistic property from a particular public collection
does not necessarily show that the State intends to relinquish ownership
of the property entirely. See, e.g., Fla. Admin. Code Ann. r. 1T-
12.001(4), (5) (separately defining “deaccession” and “disposal”). To
avoid confusion, we will use more specific terminology, such as
“removing the object from the inventory list” or “transferring or
disposing of” the object, to describe the types of actions that might be
encompassed by the Commission’s deaccession policy.
Gen. 3] 5

seeks to sell, transfer, or otherwise dispose of artistic property,
however, it must follow the procedures outlined in the State
Finance & Procurement Article. The Commission thus needs the
approval of the Board of Public Works to alienate artistic property
to a private entity or transfer property to another State agency
unless the property is “excess” property, in which case the
Commission must obtain the approval of the Department of
General Services. See Md. Code Ann., State Fin. & Proc. (“SFP”)
§§ 4-501 to 4-508, 10-304, 10-305(a).
Finally, we conclude that the Commission may formulate a
collections management policy that establishes criteria for
removing objects from the inventory list. The more difficult
question is whether this policy will have to be promulgated by
regulation. Our answer depends to some degree on the final content
of the policy, and the safest course would be to adopt the
collections management policy by regulation. Nonetheless,
assuming the final policy is properly crafted, we believe that the
Commission may adopt a collections management policy without
following the procedures for promulgating formal regulations
because such a policy “concerns only internal management of the
unit” and “does not affect directly the rights of the public or the
procedures available to the public.” SG § 10-101(g)(2).
I
Background
A. The Commission on Artistic Property
The General Assembly created the Commission on Artistic
Property in 1969 to “keep a continuing inventory of valuable
paintings and other decorative arts in all State buildings and
premises in the Annapolis area” and to “provide for the location,
proper care, custody, restoration, display, and preservation” of
these objects. 1969 Md. Laws, ch. 111, codified at Md. Ann. Code
art. 78A § 52 (1969). The Legislature has made frequent changes
to the composition and character of the Commission over the years.
As originally constituted, the Commission was a unit within the
Board of Public Works, with all three of its members appointed by
the Board. Art. 78A, § 52(a). In 1977, the Commission was made
part of the Department of General Services (“DGS”), see 1977 Md.
Laws, ch. 225, and in 1984 it was moved to the newly-created State
Archives, where it remains today. 1984 Md. Laws, ch. 286, §§ 5,
8, codified at SG § 9-1017 (1984). In its current form, the
Commission consists of fifteen members, seven of whom are
“institutional members” from specific cultural institutions in
6 [101 Op. Att’y

Maryland—such as the Baltimore Museum of Art, the Peabody
Institute, the Walters Art Museum, and the Maryland Historical
Society—and eight of whom are “public members” appointed by
the State Archivist with the approval of the Governor. SG § 9-
1018.
The Commission retains its original statutory responsibility
for keeping “a continuing inventory of the objects” in its official
custody and for “the acquisition, custody, display, location,
preservation, proper care, security, and restoration of the objects,”
SG § 9-1021(a), but the extent of the collection in the
Commission’s custody has expanded. The Commission is now the
“official custodian” not just of the decorative art in the Annapolis
area but also “of all valuable paintings and other objects of
decorative art owned by or loaned to the State,” except for those
located in a State room of the Government House or acquired
through the Maryland Public Art Initiative Program. SG § 9-
1021(a)(1), (c) (emphasis added).
In exercising its “custodial responsibilities,” the Commission
“may loan objects owned by the State to qualified institutions and
may contract with such institutions for the performance of
curatorial services.” SG § 9-1021(a)(3). Additionally, “[e]ach
person or agency that desires to acquire a painting or object of
decorative art for display in or on the premises of any State
building, except in a room of the Government House, must receive
both prior approval and final acceptance from the Commission.”
SG § 9-1021(b). With the approval of the Governor and the State
Archivist, the Commission also may accept, on behalf of the State,
gifts and loans of artwork, and the Commission is charged with
caring for the art it accepts under this authority. SG § 9-1020(a).
The Commission views its mission as to “serve the public as
the official custodian of the state owned art collection, as well as
fine and decorative arts owned by or loaned to the State.”
Maryland State Art Collection, Mission Statement. Although the
State’s art collection primarily includes “those works of art and
decorative objects that document the history of Maryland through
subject, maker, or provenance,” id., it is not limited to these objects
and includes other valuable artistic property owned by the State.
Some of the pieces in the Commission’s custody are housed at the
State Archives, while others are displayed in State buildings or on
loan to cultural institutions like the Walters or the Baltimore
Museum of Art for display in their museums. “The goal of the
Commission is to make the collection accessible to the public
through preservation, conservation, display and interpretation.” Id.
Gen. 3] 7

B. The Peabody Art Collection
George Peabody founded the Peabody Institute and the
Peabody Gallery of Art in 1857. See Maryland State Archives,
“The Peabody Art Collection: A Treasure for Maryland,”
http://msa.maryland.gov/msa/speccol/sc4600/sc4680/html/history.
html (last visited May 18, 2015). In the mid-1930s, the Peabody
Institute closed the Gallery to make more space for the Peabody
Conservatory of Music. Johns Hopkins University later took the
Peabody Institute “under its wing,” but the Institute became a
“financial burden” to the University, and Johns Hopkins started
looking for ways to raise capital to support the Institute’s
operations. Id. A task force led by the Lieutenant Governor
devised the “Peabody Plan,” under which the State acquired the
Peabody Art Collection in exchange for a $15 million contribution
to the endowment fund of the Peabody Institute. Id. To
accommodate the plan, the General Assembly amended the
Commission’s governing statute to provide, among other things,
that the Commission would become the “official custodian” of the
Peabody Art Collection upon completion of the sale of the
collection to the State. SG § 9-1021(a)(2); see also 1995 Md.
Laws, ch. 331.
In preparation for the sale, the Peabody Institute provided the
staff of the Commission on Artistic Property with a list identifying
every object in the Peabody Art Collection. See Memorandum
from the Staff of the Commission on Artistic Property to the
Collections Advisory Committee (March 12, 2014). The
Commission staff then entered this preliminary list of objects into
a database so that they could be added to the Commission’s
inventory once the transfer was complete. Id. It is our
understanding that before the Board of Public Works approved the
sale, staff of the Peabody Institute and the Commission discussed
whether certain items on the preliminary list should be included in
the sale. Among the items discussed, for example, were friezes and
reliefs that are part of the fabric of the Institute’s building. The
friezes and reliefs and certain other objects were ultimately not
included in the final sale.
The contract between the Institute and the State, which was
approved by the Board of Public Works in June 1996, included an
“inventory of the collection,” which was made a part of the
contract. See Contract of Sale, Peabody Art Collection (June 19,
1996); see also id. Exhibit A (“Inventory and Illustrations”). This
inventory list presumably reflected the final outcome of the
discussions between the Commission and Institute about which
8 [101 Op. Att’y

objects should be included in the sale. The Commission, however,
did not delete from its database some of the objects that had
appeared on the preliminary list but were not included in the final
inventory annexed to the contract. Those objects then found their
way onto the Commission’s official list of artistic property.2
C. General Rules for the Transfer, Sale, and Disposition of
State Property
The General Assembly has delegated to the Board of Public
Works broad authority to oversee the disposition of State property.
See SFP § 10-305(a) (providing that “any real or personal property
of the State or a unit of the State government may be sold, leased,
transferred, exchanged, granted, or otherwise disposed of” with the
approval of the Board of Public Works “for a consideration the
Board decides is adequate”).3 Under the statute, the Board may not
approve the sale or transfer of personal property worth over
$100,000 until the property has been appraised and the Board has
given the Legislative Policy Committee of the General Assembly
an opportunity to review the proposed disposition. SFP § 10-
305(b). Legislative review and appraisal is not required for
personal property worth $100,000 or less. Id.
The Board’s power over State property extends not only to
transfers to private entities or other governments, but also to
transfers among units of State government. Section 10-305
specifically authorizes the Board to approve the transfer of property
from one “unit of the State government” to another “for a
consideration the Board decides is adequate.” SFP § 10-305(a)(1).
The Board also has separate authority to “transfer any property, and
all rights of physical custody and control over the property,” among
Executive Branch units without requiring any consideration. SFP
§ 10-304(b)(1). Property transferred among Executive Branch

2
There is a dispute between the Archives and Johns Hopkins about
the ownership of two manuscripts that were listed in the contract of sale
and transferred to the State. Johns Hopkins believes that the manuscripts
were mistakenly included in the contract and that the transfer to the State
is void. An Attorney General’s opinion cannot sort out factual
disagreements of this kind. Our general practice is to offer our views on
the law based on the facts presented to us in the opinion request, and we
shall do so here.
3
The State may also sell, transfer, exchange, grant, or dispose of
State property “to any county or municipal corporation in the State
subject to any conditions the Board imposes.” SG § 10-305(a)(2).
Gen. 3] 9

units under § 10-304 is exempt from the appraisal requirements of
§ 10-305(b)(2)(i). SFP § 10-304(b)(2).
Although the Board has been delegated primary responsibility
for decisions concerning the disposition of State property, some
transfers of State-owned property do not need Board approval. The
General Assembly has authorized the Department of General
Services to approve transactions involving State-owned “excess”
personal property. See generally SFP §§ 4-501–4-508. Under this
statutory scheme, an agency may declare an item to be excess
personal property if it is “not necessary to the efficient operation of
the unit” or if it has been “replaced by a similar item.” SFP §§ 4-
501(b), 4-502(a)(1). The agency’s declaration becomes effective
upon approval by DGS. SFP § 4-502(a)(2). Once property is
designated as “excess,” DGS either transfers it to another unit of
State government, SFP § 4-504(b)(1), or, if the property is not
needed by any unit of State government, DGS may declare it to be
“surplus personal property” and dispose of the property by selling
it to a person or entity outside of State government. SFP §§ 4-
501(d), 4-504(c), (d). The Secretary of DGS may also “destroy[]”
the property “if no value can be realized from it.” SFP § 4-
504(d)(1)(v).
The Secretary of DGS may delegate to a designee or, by
regulation, to another unit of the State government, the authority to
dispose of surplus personal property. SFP § 4-504(e). In limited
circumstances, DGS has stated that it is an “agency responsibility”
to destroy or discard certain “non-capital equipment” owned by the
agency—such as “miscellaneous equipment, furniture, desk top
articles and the like”—if that equipment is “worn or damaged
beyond economical repair” and its acquisition cost was less than
$100. DGS Inventory Control Manual (“DGS Manual”) §§ I.04,
III.02.C (revised July 2012).
II
Analysis
The extent to which the Commission may transfer or dispose
of artistic property in its official custody is primarily a question of
interpreting the statutory provisions that have delegated the power
to dispose of State property to the Commission, the Board of Public
Works, and DGS. As with all questions of statutory interpretation,
we look first to the plain language of the statute, but we must also
take into account the broader statutory context, including other
related statutes. TransCare Maryland, Inc. v. Murray, 431 Md.
225, 232 (2013).
10 [101 Op. Att’y

As an initial matter, it is important to distinguish between the
Commission’s authority to dispose of property and its authority to
remove an object from an inventory list to more accurately reflect
the State’s actual holdings. In our view, a decision to remove an
object from the official list of artistic property maintained by the
Commission will not by itself result in any alteration of the State’s
property rights in that object. We will thus address these questions
separately, starting with the Commission’s power over its
inventory list and then its power to actually dispose of State
property.
A. The Commission’s Power over Its Inventory List
The first question is whether the Commission may remove an
object from its official list of artistic property on its own initiative
so long as the object remains State property. The Commission is
the “official custodian of all valuable paintings and other objects of
decorative art owned by or loaned to the State.” SG § 9-1021(a)(1).
It has a duty to “keep a continuing inventory” of the objects in its
collection, id., and decides whether to accept new objects into the
collection. See SG § 9-1021(b) (requiring agencies to obtain
approval from the Commission before acquiring art to display in
government buildings). The Commission thus has broad authority
to add or remove objects from the official list of artistic property to
carry out this express statutory duty to “keep a continuing
inventory.” SG § 9-1021(a)(1).
Before granting agencies approval to acquire new artwork, the
Commission must consider the “competence of the artist,” the
“proposed location of the object,” and the “quality, historical
significance, and appropriateness of the work,” SG § 9-1021(b)(2),
but the Legislature has not fleshed out these broad standards or
provided any criteria for determining when objects that are already
owned by the State are worthy of being accepted into the collection.
Accordingly, we believe that the General Assembly intended to
delegate those decisions to the Commission. See 75 Opinions of
the Attorney General 241, 245 (1990) (explaining that the General
Assembly, by declining to explicitly define certain eligibility
criteria, “effectively delegated to the administrative agency . . . the
responsibility for establishing eligibility criteria”); cf. Board of
Liquor License Comm’rs for Baltimore City v. Hollywood Prods.,
Inc., 344 Md. 2, 11 (1996) (“Where the legislature has properly and
broadly delegated regulatory authority to an agency, we have quite
liberally construed the scope of the agency’s implied powers to act
in that area.”). After all, the Commission includes experts in the
field and is thus better equipped than other units of State
government to determine whether art owned by or lent to the State
Gen. 3] 11

is sufficiently valuable or decorative to qualify for inclusion in the
official inventory of artistic property. See SG § 9-1018.
The logical corollary to this conclusion is that the
Commission should also have broad discretion in deciding whether
to remove objects from the inventory list. If the Commission could
have declined to add the object to the inventory list in the first place
because it is not “valuable” or it is not a “decorative art,” it should
be able to remove the object from the list if, for example, the object
was mistakenly included or has deteriorated beyond restoration and
no longer has any monetary, artistic, or historical value.4 Although
we conclude that the Commission has inherent authority to remove
objects from the official list of State artistic property, there may be
legal requirements that are triggered by the Commission’s exercise
of that authority. For example, the Commission’s removal of
objects from the list of artistic property might require adding the
object to a standard State property inventory, like the one most
State agencies are required to keep. See SFP § 4-306(b).
The final question concerning the Commission’s authority
over its inventory is whether the Commission may delete from its
official inventory list objects that it believes the State does not
actually own, such as pieces from the Peabody Collection that were
not included in the sales contract between the State and the
Peabody Institute. It is not our role to address specific factual
scenarios or adjudicate specific factual disputes, but, generally
speaking, we think that the Commission may do so. As discussed
above, the Commission has statutory responsibility to maintain a
“continuing inventory” of the valuable artistic property “owned by
or on loan to the State” and the objects “acquire[d]” as part of the
Peabody Art Collection. SG § 9-1021(a)(1), (2). If an object was
never acquired by the State, it is not owned by the State—as part
of the Peabody Art Collection or any other collection—and the
Commission may remove the object from its inventory list.
We reiterate, however, that the Commission’s decision to
remove an object from the inventory list does not and cannot

4
The only apparent exception is for the items that the State acquired
from the Peabody Art Collection. The statute expressly mandates that
the Commission is “the official custodian of the Collection,” regardless
of whether those items are valuable paintings or decorative art. See SG
§ 9-1021(a)(2). Because the objects are in the Commission’s official
custody, it has a mandatory obligation to keep them on the “continuing
inventory” as long as they are still owned by the State. SG § 9-
1021(a)(1)(i).
12 [101 Op. Att’y

relinquish State ownership. As discussed further below, that power
is vested in the Board of Public Works and DGS. Thus, if the
Commission mistakenly removes from its official list of artistic
property an object that the State actually does own, the removal
from the list will not by itself transfer ownership over the object.
The only way to transfer ownership, particularly if the object is in
the State’s possession, would be to follow the standard procedures
outlined in the State Finance & Procurement Article and seek
approval from the Board of Public Works. See SFP § 10-305(a)
(explaining that the Board’s power extends to all “real and personal
property” of the State); SFP § 10-301(3) (defining “real or personal
property” to include “any legal or equitable rights, interests,
privileges, or easements in, to, or over any real or personal
property”).
B. The Commission’s Power to Dispose of Property
The provisions of the State Government Article that govern
the Commission’s powers do not authorize the Commission to
transfer or dispose of property on its own. Although the
Commission may “loan objects owned by the State to qualified
institutions,” SG § 9-1021(a)(3) (emphasis added), it does not have
authority to perform any other actions that dispose of State-owned
property. That broader authority is instead found in the State
Finance & Procurement Article, which expressly grants this
authority to the Board of Public Works or, in certain cases, the
Department of General Services. SFP §§ 4-504, 10-305.
Nothing in SFP § 10-305 or in the State Government Article
exempts the Commission from these requirements. Rather, it
appears that the Legislature always intended that the Commission
would be subject to the Board’s authority and the generally-
applicable limits on a State agency’s authority to transfer or dispose
of State property. When the Commission was created, it was part
of the Board of Public Works, and its governing statute was
codified in the same title as the predecessor to § 10-305, which
contained the same requirement for the Board to approve transfers
of State property. See Md. Ann. Code art. 78A, §§ 15, 52 (1969
Repl. Vol.). Later, the Commission was relocated to the Archives,
which is itself subject to Title 10 of the State Finance &
Procurement Article. SG § 9-1008(b)(3); see also SG § 9-1017.
The Commission’s position within State government suggests that
it is subject to these generally-applicable rules governing the
disposition of State property.
We also see no basis on which to conclude that the
Commission has implied power to dispose of State property outside
Gen. 3] 13

the process established by the General Assembly. The structure of
the statute does not suggest that the Legislature intended to convey
that power by implication. Had such an implied power been
intended, it presumably would not have been necessary for the
General Assembly to expressly authorize the far more limited
power to loan artwork to qualified institutions. See SG § 9-
1021(a)(3). Although the Commission has substantial control over
the artistic property within its official custody, we find no
indication that the Legislature intended to give the Commission
free rein to sell, or perhaps even give away, valuable works of art
without providing express authority to make those decisions.5 Cf.
McRobie v. Mayor and Comm’rs of Westernport, 260 Md. 464, 467
(1971) (observing that municipal “property held in a governmental
capacity cannot be disposed of without express authority”). It is
our view, then, that the Commission must follow the standard
procedures outlined in the State Finance & Procurement Article
before it may transfer or dispose of State property.6 This means

5
Johns Hopkins University submitted comments on the opinion
request positing that the Commission must have implied power to
transfer artwork because, “[w]ithout such an implied power, the
Commission would be unable to fulfill the complete scope of its duty to
protect the artwork within its custody.” Letter from Winston Tabb, Dean
of University Libraries and Museums, to Adam D. Snyder, Chief
Counsel, Opinions & Advice at 5 (Aug. 5, 2015). According to the
University, the Commission would need “the flexibility to transfer
fragile or unique artwork that the State may at some point become unable
to properly care for” and to “transfer works as necessary to ensure that
its collection aligns with its statutory mission.” Id. Although we agree
that this type of flexibility is important, it is already provided by other
statutory provisions. For example, the Commission can address the first
concern by loaning objects in its official custody to another museum and
contracting with that museum for curatorial services. See SG § 9-
1021(a)(3). Similarly, the fact that an object might not align with the
Commission’s statutory mission does not necessarily mean that the State
as a whole should relinquish ownership over the object, at least without
going through the statutory process for doing so.
6
There may also be additional limits on the State’s authority to
transfer specific pieces of Commission property. For example,
principles of contract or trust law might prohibit the sale or transfer of
artistic property that was gifted to the State. See, e.g., Grossman v.
Greenstein, 161 Md. 71, 73 (1931) (“A donor may limit a gift to a
particular purpose, and render it so conditioned and dependent upon an
expected state of facts that, failing that state of facts, the gift should fail
with it.”).
14 [101 Op. Att’y

that the Commission will typically need to obtain Board of Public
Works approval before transferring artistic property.
C. Excess and Surplus Property
The General Assembly has delegated the authority to dispose
of certain types of property to the Department of General Services
rather than the Board of Public Works. Sections 10-304 and 10-
305 of the State Finance & Procurement Article “do[] not apply to
the transfer or disposal of excess personal property or surplus
personal property under Title 4, Subtitle 5” of that Article. SFP
§ 10-302. Instead, DGS has the authority to dispose of “excess”
and “surplus” personal property. See SFP § 4-504. Accordingly, if
the Commission wants to dispose of “excess” personal property, it
must use the procedures outlined in Title 4, Subtitle 5 of the State
Finance & Procurement Article. See Section I.C, supra. The
preliminary question is whether any of the Commission’s artistic
property might ever qualify as excess property.
The statute defines “excess property” as “an item of personal
property that is declared to be in excess of the needs of the custodial
unit of the State government because the item: (1) is not necessary
to the efficient operation of the unit; or (2) has been replaced by a
similar item.” SFP § 4-501(b). It is not clear that the General
Assembly had artistic property in mind when formulating this
definition; administrative efficiency is typically not the yardstick
by which one measures the value of art. But, given that the
Commission’s entire (and unique) purpose is to manage, care for,
and display the State’s artistic property, we think that the valuable
paintings and decorative arts in the Commission’s custody are
likely “necessary” to the operation of the Commission and, at least
in most cases, would not constitute excess property. Generally
speaking, therefore, the Commission will still have to get approval
from the Board of Public Works before transferring such items to
another unit of State government, trading them for artistic property
from another institution, or otherwise disposing of them.
However, if the artistic property in question is not actually a
valuable painting or object of decorative art that is properly part of
the Commission’s official inventory of artistic property, we think
it could be declared excess. The property in that case is not
“necessary” to the Commission’s operations or its statutory
mission. Similarly, artwork could potentially be declared excess
property if it has deteriorated beyond restoration and has no
continuing artistic, monetary, or historic value. If DGS approves
that declaration, see SFP § 4-502, DGS could then dispose of the
property. Alternatively, if DGS determines that no unit of State
Gen. 3] 15

government needs the property and declares it to be surplus, DGS
could delegate the final disposition of that surplus property to the
Commission. See SFP § 4-504(e) (providing that the Secretary of
DGS “may delegate the authority to dispose of surplus personal
property to a designee of the Secretary or, by regulation, to another
unit of the State government”).7
The legislative history of the excess property program
supports handling excess and surplus property differently from the
types of property that require Board of Public Works approval. For
decades, the Board of Public Works had been forced to decide
“thousands of minor transactions” on routine items, including the
disposal of State-owned personal property. Alan M. Wilner, The
Maryland Board of Public Works: A History 96 (1984) (quoting
Commission on Administrative Organization of the State, Eighth
Report, at 2:20) (Nov. 1, 1952)). One example of “this tedious
action” occurred at a 1946 meeting “when the board had to approve
the sale of seventy-five worn-out tires by the State Roads
Commission for $7.” Id. at 96 n.75. A 1952 commission report
recommended that the Board should “‘retain its authority over
major decisions’” involving State property but that “board approval
should not be required for the disposition of personal property
worth less than $10,000.” Id. (quoting Eighth Report, at 20-21).
Although legislation was not enacted at the time, the General
Assembly again considered the issue after a 1980 study, which
proposed giving DGS control over the disposition of excess
personal property. See Reports of Committees to the General
Assembly of Maryland 1980 Session, Summary Report of the
Purchasing and Procurement Policies Task Force, Exhibit A at
394-97. The General Assembly enacted the predecessor of the
current excess property statute two years later. 1982 Md. Laws, ch.
328. An official from DGS testified that the purpose of a nearly
identical bill from 1981 was to “[k]eep the minutia away from the
Board of Public Works.” 1981 Leg., Reg. Sess., Hearing on House
Bill 1090 (notes on testimony by the Department of General
Services). In the context of artistic property, we believe this
legislative history suggests that the Board retains approval
authority over the disposition of valuable artistic property that is

7
If the Commission wishes to transfer excess property to a particular
recipient, it should go through the Board of Public Works because an
agency loses control over the ultimate destination of its property once
DGS has approved an agency’s declaration of it as excess. See SFP § 4-
504.
16 [101 Op. Att’y

properly part of the Commission’s official collection, but that DGS
has control over the disposition of excess artistic property that is
not valuable and does not belong on the official inventory.8
D. The Commission’s Authority to Formulate a Collections
Management Policy
Your final questions are whether the Commission may
formulate a collections management policy, including a
deaccession policy, and whether that policy must be promulgated
through regulations. It is our understanding that this collections
management policy would include requirements for the storage,
care, and preservation of artistic property in the Commission’s
collection; procedures for maintaining the Commission’s inventory;
and standards for determining when objects should be accessioned
or deaccessioned (i.e., added or removed) from the inventory list.
As an initial matter, we see nothing that would prevent the
Commission from formulating a collections management policy so
long as the Commission follows the requirements in the State
Government Article governing the Commission’s operations and
in the State Finance & Procurement Article governing the
disposition of State-owned property. An agency may take steps to
ensure that its operations are carried out consistently and in
accordance with its organic law. The more difficult question is
whether such a policy would have to be promulgated as a regulation
under the Administrative Procedure Act (“APA”).
The APA “applies to virtually every unit in the Executive
Branch” and “prescribes a number of procedural requirements for
the adoption of a regulation.” 75 Opinions of the Attorney General
37, 43 (1990). The question, then, is whether a given agency action

8
There are limited circumstances under which an agency may
dispose of excess State property without having to go through DGS. The
Inventory Control Manual published by DGS provides that agencies
have “responsibility” for disposing of their own “non-capital equipment”
that originally cost less than $100 and is “worn or damaged beyond
economical repair.” DGS Manual Section III.02.C.2. It is not clear to
us whether any Commission property would fall into this category. Art
is not “equipment” in the traditional sense, and the exception appears
intended to cover items like pens and office furniture. Although it is
possible that this exception would apply to paintings or decorative arts
that are so deteriorated as to be beyond restoration and have no historic,
artistic, or economic value, the safer course legally would be to dispose
of them through DGS’s standard excess property program unless DGS
formally delegates to the Commission the authority to dispose of the
property.
Gen. 3] 17

qualifies as a “regulation” under the APA. “[I]f an agency’s action
constitutes a regulation, as that term is defined by the APA, the
action may be taken only in accordance with [the APA’s]
rulemaking procedures.” 75 Opinions of the Attorney General at
44 (quotation marks and citation omitted). The APA defines
“regulation” to include “a statement” that “has general application”
and “future effect” and is adopted by a unit of government to “detail
or carry out a law that the unit administers,” or to govern the
organization, procedure, and practice before the unit. SG § 10-
101(g)(1). The substance of the statement, rather than the form,
determines whether it is a regulation. The APA applies even to
guidelines, standards, statements of interpretation, or statements of
policy as long as they otherwise meet the definition of a regulation.
SG § 10-101(g)(1)(iv).
Based solely on this definition, the Commission’s collections
management policy would likely constitute a regulation. It has
general application and future effect, and would be adopted to carry
out the Commission’s organic statute and to govern agency
procedure. But “[n]ot every administrative action with public
consequences is a rule.” 68 Opinions of the Attorney General 9, 12
(1983) (quoting United Parcel Serv. v. Oregon Transp. Comm’n,
555 P.2d 778, 780 (Or. Ct. App. 1976)). The statutory definition
of regulation instead contains a number of express exceptions. One
of those exceptions excludes from the definition of “regulation”
statements that “concern[] only internal management of the unit”
and “do[] not affect directly the rights of the public or the
procedures available to the public.” SG § 10-101(g)(2).
This “internal management” exception has been part of the
APA since its enactment, but “there has been surprisingly little
comment on [its] general meaning and scope.” Massey v.
Department of Pub. Safety & Corr. Servs., 389 Md. 496, 519
(2005). Its purpose is to prevent the APA’s procedural
requirements from intruding “too far into the internal workings of
the agency” while at the same time preventing agencies from
“subvert[ing] public rulemaking requirements” by calling
everything “an internal directive to staff.” Id. at 519 (internal
quotation marks omitted). We have previously explained that
“virtually every internal management directive will have at least
some tangential effect on the public,” so the “key” is whether a
policy “primarily addressed to State personnel nevertheless has
significant direct effects on the public, as distinct from inevitable,
indirect ones.” 72 Opinions of the Attorney General 230, 235
(1987). In other words, whether a policy “is exempt from
rulemaking by virtue of the ‘internal management’ exception
depends on the practical consequences for members of the public.”
18 [101 Op. Att’y

Id. “The exception applies only if the internal guidance does not
significantly affect either the procedural steps that interested
persons must take in their dealings with an agency or the allocation
of substantive benefits or burdens.” Id. at 235-36.
Based on this test, we have concluded that a policy governing
smoking on State property qualified for the internal management
exception because it applied primarily to State personnel and
involved the “custodial management of public property,” even
though it incidentally affected members of the public who visited
the property. Id. at 236-37 (quoting Holdman v. Olim, 581 P.2d
1164, 1170 (Haw. 1978)). By contrast, policies that set eligibility
criteria for government programs are not internal and need to be
promulgated through the regulatory process because they have a
direct and substantive effect on the allocation of government
benefits. See, e.g., 78 Opinions of the Attorney General 8, 18
(1993) (eligibility for a program to help individuals with
developmental disabilities).
The Court of Appeals, for its part, has endorsed a description
of the internal management exception as “pragmatic,” “balanced,”
and “narrowly drawn.” Massey, 389 Md. at 519-20 (citing Arthur
Earl Bonfield, State Administrative Rule Making § 6.17.2; see also
Evans v. State, 396 Md. 256, 347 (2006) (same). “The kinds of
statements falling within the ambit of the exception,” according to
the Court, are those that “‘face inwards’ and do not ‘substantially
affect any legal rights of the public or any segment of the public.’”
Massey, 389 Md. at 520 (quoting Arthur Earl Bonfield, The Iowa
Administrative Procedure Act, 60 Iowa L. Rev. 731, 834 (1975)).
Conversely, “no exclusion will be allowed if the agency statement
substantially affects rights of the public of a sort that are cognizable
as a matter of law; that is, rights which are normally enforceable
against the agency or other parties through legal processes.” Id. at
520 (quoting Bonfield, The Iowa Administrative Procedure Act at
834). The “real test” is “whether, given the nature and the impact
of the [statement], the Legislature intended that the agency be free
to adopt, change, or abrogate the [statement] at will, without any
public input or legislative review.” Evans, 396 Md. at 347-48
(holding that the State’s protocols for carrying out executions by
lethal injection had to be promulgated by regulation).
In our view, the Court of Appeals decisions and our prior
opinions stand for the same basic principle: A policy statement
will qualify for the exception when it “faces inward,” i.e., is
addressed primarily to agency personnel, and has no direct,
Gen. 3] 19

substantial effect on the public’s substantive or procedural rights.9
See Evans, 396 Md. at 347; Massey, 389 Md. at 519-20; 72
Opinions of the Attorney General at 235-36. Therefore, internal
guidance will be exempt from the APA’s rulemaking requirements
even if it has an incidental effect on the public or if it affects the
public in some way that does not substantially impair their legal
rights or the procedures available to them. See 72 Opinions of the
Attorney General at 235-36.
Applying these principles here, some aspects of the
Commission’s collections management policy will unquestionably
qualify for the internal management exception. The inventory
procedures and the requirements for the storage, care, and
preservation of artistic property in the collection are quintessential
internal management guidelines that are directed solely to agency
personnel and merely involve the “custodial management of public
property” entrusted to the agency. Id. (quoting Holdman, 581 P.2d
at 1170)). The maintenance of an inventory also helps the agency
ensure that it can effectively carry out its obligation to care for the
art in its custody. Although the public might have a general interest
in the proper care of the State’s artistic property, it has no “rights .
. . of a sort that are cognizable as a matter of law.” Massey, 389
Md. at 520 (quoting Bonfield, The Iowa Administrative Procedure
Act at 834).
The Commission’s accession and deaccession policies pose a
closer question. These policies are largely internal in that they
involve the Commission’s administrative housekeeping over its
own inventory. However, they arguably have an effect on

9
The Court’s citation in Massey of another passage from Professor
Bonfield’s work could be taken to suggest that the exception applies even
more narrowly and extends only to “matters of internal agency
management that are purely of concern to the agency and its staff.”
Massey, 389 Md. at 520 (quoting Bonfield, State Administrative Rule
Making § 6.17.2 (emphasis provided by Court)). However, the public
always has an interest in how the agencies of State government operate,
so very little of what an agency does, even in managing its own internal
procedures, is purely of concern to the agency and its staff. “[V]irtually
every internal management directive will have at least some tangential
effect on the public.” 72 Opinions of the Attorney General at 235. We
think the scope of the exception is better captured by the Court’s
endorsement of Professor Bonfield’s statement suggesting that an
agency’s internal statement must not “substantially affect any legal
rights of the public or any segment of the public” in order to qualify for
the exception. Massey, 389 Md. at 520 (emphasis added).
20 [101 Op. Att’y

members of the public who want to see particular pieces of art on
display, who want to purchase art from the Commission, or who
want to sell art to the State. The Commission holds the art in trust
for the public, and the public will thus have an interest in the
Commission’s decisions about which pieces belong in the State’s
official collection. Along these lines, the policies may affect the
public’s perception of the process by which the State divests itself
of artwork held in the public trust or acquires artwork with public
funds. See Evans, 396 Md. at 349 (noting that lethal injection
regulations affected inmates who had been sentenced to death and
the public at large through its “perception of the process”). In fact,
a number of government-owned cultural institutions in other states
have promulgated accession and deaccession policies via
regulation,10 though, in some cases, their governing statutes
explicitly required them to do so.11
Although not free from doubt, we conclude that the
Commission may adopt a deaccession policy outside of the formal
rulemaking process. As we have interpreted the statutory scheme,
the deaccession policy would merely be an internal tool for
managing the Commission’s inventory and making
recommendations to other decision-makers about which artistic
property is excess or should, for other reasons, be sold or
transferred. Because the policy will not actually govern the
disposition of State property—that power being reserved to the
Board of Public Works or DGS—we do not think it would
“substantially affect[] rights of the public of a sort that are
cognizable as a matter of law,” Massey, 389 Md. at 520 (quoting
Bonfield, The Iowa Administrative Procedure Act at 834), or
“significantly affect either the procedural steps that interested
persons must take in their dealings with an agency or the allocation
of substantive benefits or burdens,” 72 Opinions of the Attorney
10
See, e.g., Alaska Admin. Code tit. 4 §§ 58.110, 58.140 (Alaska
State Museum); Fla. Admin. Code Ann. r. 1T-12.003, 1T-12.006
(Florida Museum of History); Iowa Admin. Code 223-13.5(303), 223-
13.6(303) (Iowa Historical Society); Kansas Admin. Regs. § 118-1-4
(Kansas Historical Society); La. Admin Code. tit. 25, pt. III, §§ 301, 303
(Louisiana Office of State Museums); Miss. Admin. Code 16-5:1.1–16-
5:1.2 (Mississippi Dep’t of Archives and History, Museum Division);
N.M. Admin. Code 4.51.29.8 (Museum of New Mexico); Or. Admin. R.
123-475-0085 (Oregon Public Art Advisory Comm.); S.D. Admin. Code
24:52:02:01–02 (South Dakota Office of History); 13 Texas Admin.
Code § 111.18 (Texas State Capitol Collection).
11
See, e.g., Alaska Stat. § 14.57.050; Fla. Stat. Ann. §§ 265.704(1),
265.706(6); Kan. Stat. Ann. § 75-2701(a)(1); S.D. Codified Laws § 1-
19A-11.
Gen. 3] 21

General at 235-36. Although the safest course is always to
promulgate the policy standards by regulation, we believe that the
Commission is not required to do so.
We are less sure about the Commission’s accession policy, in
large part because whether it requires a regulation may depend on
the scope of the final policy. To the extent that the accession policy
merely sets criteria for determining which objects owned or
purchased by the State are worthy of being added to the
Commission’s official inventory of artistic property, this is an
internal function that does not seem to have any direct or
substantial effect on the public. It “does not define the
circumstances under which [persons] shall be granted or denied
benefits,” and “[i]t does not command the public to do anything,
prohibit the public from doing anything or declare the rights of the
public in any respect.” Doe v. Chang, 58 Haw. 94, 96 (1977).
If, however, the policy sets forth criteria for the Commission’s
approval of the acquisition of items, it arguably has a greater
impact on the public or, at least, the segment of the public that
might want to sell art to the State. This type of policy also bears
some similarity to a procurement regulation, and the General
Assembly has explicitly required government units to adopt their
procurement rules as regulations. See SFP § 12-108. In light of
these factors, the Legislature may not have “intended that the
[Commission] be free to adopt, change, or abrogate the [accession
policy] at will, without any public input or legislative review.”
Evans, 396 Md. at 347-48. If the accession policy will cover this
type of ground, therefore, the Commission should promulgate it
(or, if it so chooses, the collection management policy in its
entirety) as a regulation.
Although the Commission does not have explicit statutory
authority to adopt legislative regulations with the force of law, that
authority is granted to the Archives, see SG § 9-1007(a)(1), and the
Archives could promulgate the relevant regulations on the
Commission’s behalf. Moreover, the Commission, like all State
agencies, has the inherent power to issue “interpretive” regulations
that merely guide its interpretation of the statute it administers and
could do so here. See, e.g., State v. Copes, 175 Md. App. 351, 380
(2007); 62 Opinions of the Attorney General 36, 39 (1977).
III
Conclusion
The Commission on Artistic Property has substantial control
over its own inventory, but, in order to dispose of State property, it
22 [101 Op. Att’y

must follow the procedures outlined in the State Finance &
Procurement Article. If the property in question is not a “valuable
painting” or “other object[] of decorative art” worthy of inclusion
in the official inventory of artistic property, the Commission may
declare it to be excess and dispose of it through DGS’s excess
property program. But if the property is properly part of the
Commission’s official inventory, the property may only be
transferred with approval from the Board of Public Works. Finally,
the Commission may develop a collections management policy
without formally promulgating it as a regulation, but only if that
policy does not significantly affect the rights of the public.
Brian E. Frosh
Attorney General of Maryland

Patrick B. Hughes
Assistant Attorney General

Adam D. Snyder
Chief Counsel, Opinions & Advice