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Top Assembly analyst disputes Hogan on transportation projects

Nearly half of the transportation projects Gov. Larry Hogan identified as at risk because of a new law the General Assembly passed are not funded anyway, the legislature's chief analyst says.

In a letter to the assembly's Democratic leaders, Warren G. Deschenaux disputed the central premise of Hogan's campaign against a law the Republican governor has dubbed the "Road Kill Bill."

In a news conference last week, Hogan called repeal of the law the No. 1 priority of his administration during the 2017 legislative session, saying it would "wreak havoc on the entire state transportation system and usurp important authority away from local governments and away from the executive branch of state government."

The law, adopted over Hogan's veto, established a scoring system to evaluate the relative worth of big-ticket state transit and highway projects.

Deschenaux, executive director of the Department of Legislative Services, took issue with Hogan's assertion that the law would force the cancellation of 66 transportation projects statewide.

The administration provided a list of 71 — not 66 — projects it said would be canceled, Deschenaux said. However, legislative analysts found that 31 of those projects weren't funded in the administration's draft six-year Consolidated Transportation Program, he said.

Deschenaux also told Senate President Thomas V. Mike Miller and House Speaker Michael E. Busch that under the law, the Maryland Department of Transportation retains the authority to override the scoring system and fund any project it favors.

The two presiding officers requested Deschenaux's opinion in response to the governor's claims about the legislation, which he has scorned since it was introduced in this year's session.

Hogan's chief spokesman, Doug Mayer, rejected Deschenaux's view, calling it "preposterous."

Mayer vowed the administration would present a transportation budget in 2018 that strictly follows the law with no use of the override power. Such an approach could eliminate projects from all parts of the state save Montgomery and Prince George's counties, putting lawmakers from other jurisdictions on the spot.

Mayer said the projects Deschenaux cited as not having been funded were included in the previous year's transportation program and that the law was the reason they might not go forward.

In his letter, Deschenaux said there were important reasons besides the law that projects might go unfunded.

He said the transportation department had placed $761 million in reserve to fund county and municipal road projects that could be put to other uses. Since taking office, Hogan has pushed for an increase in the amount of transportation money sent to local governments, but lawmakers have preferred to devote those funds to state projects.

In his letter, Deschenaux said the most important current threat to transportation spending was a shortfall in expected transportation revenue that has forced the department to decrease capital spending by "nearly $1 billion."

"Based on this analysis, it would appear that fiscal realities are likely to have a much bigger impact on MDOT's ability to include projects in the [six-year plan] than the requirement under the act that projects be scored," Deschenaux wrote.

Mayer rejected Deschenaux's numbers. He said the department's writedown of its revenue expectations was only $746 million — a number Deschenaux agreed was correct.

The fundamental disagreement between Hogan and Assembly Democrats remains the issue of how much flexibility the scoring law allows the governor in choosing projects.

The administration is taking a narrow view: that it is bound by the scoring system and can't substitute lower-scoring projects.

"We don't believe we have the legal authority to do so," Mayer said. "We believe this law handcuffs the administration."

Assembly Democrats point to the bill's language: "The department may include in the Consolidated Transportation Program a major capital transportation project with a lower score over a major capital transportation project with a higher score if it provides in writing a rational basis for the decision."

Proponents of the legislation insist that the scoring system is intended to promote transparency in funding decisions. But Mayer contended that language would open the door to lawsuits any time the administration went outside the scoring system.

The administration is clearly gearing up for a fight over the issue.

"There is no way the session ends without a major change to this law," Mayer said.

mdresser@baltsun.com

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