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The state Department of Education expects to get an opinion from the Attorney General's Office at the end of the month on who should pay the penalty if Montgomery County's plan to fund maintenance of effort is rejected.

The inquiry to the Attorney General's Office, acknowledged Tuesday by state schools spokesman William Reinhard, came after the education department received a letter from Montgomery County schools Superintendent Jerry D. Weast saying that his school system should not be penalized if it is determined that the county failed to meet its maintenance-of effort requirement for fiscal 2010.

Maintenance of effort mandates that county governments fund their school systems at least at the same level as the previous year.

In seeking an opinion from the Attorney General's Office, the education department also wants clarification as to whether state Superintendent Nancy S. Grasmick or the state school board should determine if the county's maintenance-of-effort plan is acceptable.

The cash-strapped county sought to meet its maintenance-of-effort requirement through some creative funding after its request for a waiver was rejected by state education officials. If the county's plan to fund maintenance of effort is not accepted, it could face a $33 million penalty.

To meet the requirement, the Montgomery County Council agreed to pay $79 million in debt service toward the school system's fiscal 2010 budget, which was approved June 9 amid contentious debate between members of the school board and the council. In return, though, county officials expect to be reimbursed by the school system.

School officials were amenable to the plan — as a one-time option.

Recently, however, relations have soured between county and school officials. The tension was heightened after Weast's letter was made public.

During a retreat Thursday, County Councilman George L. Leventhal said the county should use the debt service option again for schools if it is accepted by the state.

"Should we use the debt service mechanism in the future?" asked Leventhal (D-At large) of Takoma Park. "Of course we should use it. We should use it every year."

With a decision on maintenance of effort resting with the state, it is still unclear who at the state education department would assess a penalty; it is also unknown who would have to pay the fine — the county or the school system?

"It hardly seems fair to penalize the children when they are in no way responsible for a funding body's failure to meet its statutory obligations," Weast wrote in his June 4 letter.

The school system's lack of funding authority could be a factor in this week's dispute. Maryland is one of nine states that are fiscally dependent on their county councils for money, according to the Education Commission of the States.

"In a state where [the school board] doesn't rely on funding authority, it doesn't come up," said Thomas Hutton, senior staff attorney for the National School Boards Association. "In most states, school boards have their own taxing authority, so you don't have those tensions between the two governing bodies."

Staff Writer Janel Davis contributed to this report.