Can Maine's Governor block a legislatively-created position from being filled by telling the agency chair not to fund it?

Plain-English summary

Representatives Michael Michaud and Sharon Treat asked the Attorney General whether Governor John R. McKernan, Jr. had legal authority to block the Maine Board of Environmental Protection from filling its new Executive Director position. The Board had been authorized by the Legislature, in 38 M.R.S.A. § 341-F, to hire its own professional staff independent of the Department of Environmental Protection. The same chapter (P.L. 1989, ch. 890) included an appropriation for an Executive Director and a Clerk-Typist III. The statute and the appropriation became effective July 14, 1990.

The Board interviewed candidates during the summer and offered the Executive Director position to Karen Tilberg on November 5, 1990, with the concurrence of a majority of the Board. The Chairman, E. Christopher Livesay, sent her the offer. A few days later, Governor McKernan called Chairman Livesay and directed him not to fund the position because of the state's general budget crisis.

Attorney General Michael Carpenter concluded that the Governor lacked authority for this action.

The statutory authority that allows the Governor to curtail spending is 5 M.R.S.A. § 1668. It requires the Commissioner of Finance to report a revenue shortfall to the Governor, after which the Governor may "temporarily curtail allotments [to the agencies of state government] equitably ... [and], insofar as practicable ... consistent with the intent of the Legislature in authorizing these expenditures." The Governor's November 1990 directive did not invoke § 1668. The Governor later issued a curtailment order on or about January 1, 1991, but that could not retroactively justify the earlier directive.

The constitutional question is whether the Governor's general executive power (Me. Const. art. V, pt. 1, § 1) and his duty to take care that the laws be faithfully executed (art. V, pt. 1, § 12) supply an inherent power to "impound" legislatively-appropriated funds. The AG said no, citing his department's 1976 opinion (Op. Me. Att'y Gen., Jan. 7, 1976) and federal "impoundment" cases, including Train v. City of New York, 420 U.S. 35 (1975), and International Union, United Automobile Aerospace & Agricultural Implement Workers of America v. Donovan, 746 F.2d 855 (D.C. Cir. 1984) (Scalia, J.).

A footnote underscores another point: even apart from the impoundment problem, 38 M.R.S.A. § 341-F vests the hiring power exclusively in the Board's Chair with the consent of the Board. The Governor has no statutory role in choosing the Executive Director, so he could not block hiring based on his views of the candidate.

The 1976 opinion attached to the 1991 opinion (issued to Governor James B. Longley) lays out the same analysis in more detail, discussing the statutory curtailment authority, the separation-of-powers principles in articles III and IV of the Maine Constitution, and the limit on executive cost-saving (genuine economies are permitted, but blocking funded programs is not).

Currency note

This opinion was issued in 1991. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

The 1989 reform (38 M.R.S.A. § 341-F, enacted by P.L. 1989, ch. 890, § A-13) gave the Board of Environmental Protection its own professional staff for the first time, independent of the Department of Environmental Protection staff. The Board's chair was to hire staff with the Board's consent. The corresponding appropriation in §§ B-296 and B-297 funded an Executive Director and a Clerk-Typist III.

The opinion identifies 5 M.R.S.A. § 1668 as the statute then authorizing the Governor to curtail allotments after a revenue shortfall report from the Commissioner of Finance. It requires equitable curtailment consistent, so far as practicable, with legislative intent. The AG found that the November 1990 directive was not issued under that statute and that a later January 1991 order could not authorize it retroactively.

The AG relied on his department's attached 1976 opinion and cited federal impoundment cases. The 1976 opinion distinguished genuine economies that preserve a program's purpose from withholding all funds for a legislatively mandated program. The 1991 opinion concluded that preventing the Board's funded Executive Director position from being filled frustrated the Legislature's stated intent.

Common questions

What is impoundment?
The opinion uses "impounding" to describe withholding legislatively mandated funds so that a program the Legislature funded cannot proceed. It concludes that the Governor's general executive power did not authorize the particular directive at issue.

Was the Governor totally without budget tools? No. Section 1668 provided a process for temporary curtailment, and the attached 1976 opinion allowed genuine savings that did not defeat a program's purpose. Neither justified the November 1990 directive against the funded position.

Could the Governor have blocked the hiring on candidate grounds? No. Footnote 2 of the 1991 opinion says explicitly: "in this case the Governor is without any authority whatever to refuse to permit the position of Executive Director of the Board to be filled because of any objection which he might have to the actual person chosen. The statute vests the power to fill the job exclusively with the Chair, acting with the consent of the Board."

Does this affect federal-level analysis of executive power? The opinion cites federal cases, including International Union, United Automobile Aerospace & Agricultural Implement Workers of America v. Donovan, in interpreting Maine constitutional and statutory law.

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/1991/ag_19910404.pdf

Original opinion text

State of Maine
Department of the Attorney General
State House Station 6
Augusta, Maine 04333

April 4, 1991

Honorable Michael H. Michaud
House of Representatives, Seat No. 142

Honorable Sharon A. Treat
House of Representatives, Seat No. 115
State House Station 2
Augusta, Maine 04333

Dear Representative Michaud and Representative Treat:

You have inquired whether Governor John R. McKernan, Jr. had the constitutional or legal authority to prevent the Chairman of the Board of Environmental Protection from filling the recently created position of Executive Director of the Board. For the reasons which follow, it is the opinion of this Department that the Governor was without the necessary constitutional or statutory authority to take this action.

During the Second Regular Session, the 114th Legislature enacted 38 M.R.S.A. § 341-F, authorizing the Board of Environmental Protection, for the first time, to have its own professional staff independent of that of the Department of Environmental Protection. Subsection 1 of the new law provided that the staff of the Board, including the Executive Director, was to be "hired by the chair with the consent of the board." 38 M.R.S.A. § 341-F(1), enacted by P.L. 1989, ch. 890, § A-13. Also, P.L. 1989, ch. 890, §§ B-296 and 297, Appropriations provided the Board with the authorization and funds to hire two staff members: an Executive Director and a Clerk-Typist III. The law became effective, along with all other non-emergency legislation passed by the Second Regular Session of the 114th Legislature, on July 14, 1990.

It is this Department's understanding that the Board began entertaining applications for the position of Executive Director during the summer of 1990. The Board conducted interviews and eventually narrowed its choice to a particular applicant, Ms. Karen Tilberg. Accordingly, on November 5, 1990, the Chairman of the Board, Mr. E. Christopher Livesay, sent a letter to Ms. Tilberg, with the concurrence of a majority of the Board, offering her the position. Later that week, however, Governor McKernan called Chairman Livesay and advised him that he had directed that the position not be funded because of the budget crisis facing State government generally. Your question is whether this action of the Governor was lawful. In the view of this Department, it was not.

In order to direct that a particular position in State government authorized by the Legislature not be filled, the Governor must act pursuant to some statutory or constitutional authority. With regard to the former, the only statute currently in force authorizing the Governor to take such action is 5 M.R.S.A. § 1668. This section provides that when the Commissioner of Finance reports to the Governor that anticipated income to the State government will not be sufficient to meet authorized expenditures, the Governor may "temporarily curtail allotments [to the agencies of state government] equitably ... [and], insofar as practicable ... consistent with the intent of the Legislature in authorizing these expenditures." Since the action of the Governor at issue here was not made pursuant to an order under section 1668, that action may not be justified by it. Indeed, on or about January 1, 1991, the Governor did issue a curtailment order effecting State government generally. That order, however, cannot serve as a basis retroactively to authorize the action at issue here, which was taken some weeks earlier. Accordingly, it is clear that the Governor had no statutory authority to take the action.

The remaining question is whether the Governor was empowered to direct that the position not be filled under some inherent power deriving from his constitutional position as head of the Executive Branch. The issue of the Governor's inherent executive powers under the Maine Constitution has not been addressed by the Supreme Judicial Court of Maine. However, this issue has been the subject of a prior Opinion of this Department in which the Department advised, relying upon federal cases interpreting similar provisions of the United States Constitution,[1] that while the Governor may have the constitutional authority to run programs authorized by the Legislature as economically as possible, that authority does not extend to "impounding" legislatively mandated funds, and thereby frustrating the legislative intent that certain programs be funded. Op. Me. Att'y Gen. (Jan. 7, 1976) at 2-3 (copy attached). In the words of one United States District Court, "there is no basis for [an] assertion of inherent constitutional power in the Executive to decline to spend in the face of a clear statutory intent and directive to do so." National Council of Community Mental Health Centers, Inc. v. Weinberger, 361 F. Supp. 897, 901 (D.D.C. 1973) (citations omitted). Accord International Union, United Automobile Aerospace & Agricultural Implement Workers of America v. Donovan, 746 F.2d 855, 862 (D.C. Cir. 1984) (Scalia, J.). See also other "impoundment" cases not cited in this Department's 1976 Opinion: Train v. City of New York, 420 U.S. 35 (1975); City of Los Angeles v. Adams, 556 F.2d 40 (D.C. Cir. 1977); State Highway Commission v. Volpe, 479 F.2d 1099 (8th Cir. 1973).

The narrow issue raised by your question, therefore, is whether the Governor's directive to not fund the position of Executive Director of the Board of Environmental Protection was undertaken "in the face of a clear statutory intent or directive" to do otherwise. In the view of this Department, it was. By enacting 38 M.R.S.A. § 341-F, the Legislature clearly intended that there be independent staff for the Board and one staff member be an Executive Director. Consequently, any action of the Governor to prevent that position from being filled is clearly inconsistent with the intention of the Legislature.[2]

For the foregoing reasons, it is the opinion of this Department that the Governor acted without statutory or constitutional authority in preventing the Board of Environmental Protection from hiring an Executive Director. I hope the foregoing satisfactorily answers your question.

Sincerely,

Michael E. Carpenter
Attorney General

MEC/bls

cc: Governor John R. McKernan, Jr.
Senator Judy Kany
E. Christopher Livesay, Chair, Board of Environmental Protection

[1] Art. II, § 1 of the United States Constitution provides that: "the executive Power shall be vested in a President of the United States of America," and Art. III, § 3 provides, in part, that the President "shall take Care that the Laws be faithfully executed, ..." Art. V, pt. 1, § 1 of the Maine Constitution provides that "the supreme executive power of this State shall be vested in a Governor," and Art. V, pt. 1, § 12 provides that the Governor "shall take care that the laws be faithfully executed."

[2] Needless to say, in this case the Governor is without any authority whatever to refuse to permit the position of Executive Director of the Board to be filled because of any objection which he might have to the actual person chosen. The statute vests the power to fill the job exclusively with the Chair, acting with the consent of the Board.

January 7, 1976

Honorable James B. Longley
Governor of Maine

State House

Augusta, Maine 04333

Dear Governor Longley:

Your letter of December 30, 1975, described a fiscal dilemma which the State appears to face today. Briefly stated, anticipated State revenues evidently will not be sufficient to meet appropriated expenditures. You have set forth your intent to meet this problem by asking the Executive Departments to refrain from instituting certain new programs, though funding for these programs has been appropriated by the Legislature, and have asked for our counsel on this matter. In our opinion, the Governor's authority to withhold or reduce allocations of appropriated funds is limited to that authority which has been conferred by statute, and, as such, would not include authority to withhold funds in the manner you have suggested.

The primary source of the Governor's authority is the Constitution, which vests in him the supreme executive power of the State, Article V, Part 1, § 1, Constitution of Maine. One- might argue that the executive power includes promotion of sound fiscal policies and, therefore, implies the power to withhold

a

or reduce allocations from appropriated funds, This argument has

not been tested by the Maine judiciary, but the same argument, as applied to the President and his subordinates, has been rejected by the Federal courts in séveral "impoundment" cases. In Sioux Valley Empire Electric Association, Inc. v. Butz, 367 F. Supp. 686 (D.S.C., 1973), a Federal District Court noted that the President has broad powers, but these do not include the power to nullify Congressional action. In other words, there.is no inherent executive power to. impound legis-— latively mandated funds. The basis for this decision, which
-would have equal application in Maine, is the constitutional

Na

Hon. James B. Longley
Page 2
January 7, 1976

doctrine of "separation of powers," (See Art. III, §§ 1 and 2 Constitution of Maine]. If the executive determined to withhold appropriated funding from certain programs, it would frustrate the legislative intent that the programs be funded, Art, Iv, Part 1, § 1, Constitution of Maine [See also: Guadamuz v. Ash, 368 F. Supp. 1233 (D.D.C., 1973)]. Further, as pointed out in Sioux Valley, an executive impoundment of appropriated funds could be interpreted as displeasure with the programs to be financed, especially when the appropriations were enacted over the executive's veto, In the latter case, such action could be construed as subverting the Legislature's constitutional right to override the Governor's veto, in derogation of the doctrine of "checks and balances." Art. IV, Part 3, § 2 Constitution of Maine. In light of the foregoing, it is clear that there is no constitutional authority for withholding or reducing allocations of appropriated funds.

It should be noted at this point that. the Governor obviously does have the authority to institute authentic cost-saving programs, The Governor has the constitutional duty to take care that the laws, which include appropriation acts, are faithfully executed. Art. V, Part 1, § 12, Constitution of Maine. This means that he must pro~ mote the legislative intent in all cases. If the Legislature has instituted a particular program, it is clear that it intends the purpose of the program to be carried forward. However, it is | also assumed that the Legislature would intend that the program be run as economically as possible. Therefore, the Governor may seek cost-savings in any program, with resultant decreases in allotments, so long as these economies do not: detract from per- formance of the program's original purpose as intended by the Legislature. Carrying this logic a step further, there is some authority for the proposition that an Executive Officer may terminate allotments of appropriated funds for an existing program which is no longer performing its function in accord- ance with the original legislative intent. Commonwealth of Pennsylvania v. Lynn, 501 F.2d 848 (D.D.C., 1974). However, any executive action performed on this basis would undoubtedly be closely examined.

In the absence of constitutional authority or direction, the Governor's powers in a particular area are limited to those conferred by statute. The statutory direction in the present case is quite clear. Both the Current Service Appropriations Act (P, & S.L. 1975, ¢c. 78) and the Additional Appropriations Act (P, & S.L. 1975, c. 90) included an. identical Section 3, which reads:

Hon. James B. Longley
Page 3
January 7, 1976

"Sec. 3. Temporary curtailment of allot~ ments, Whenever it appears to the Commissioner of Finance and Administration that the antici- pated income and other available funds of the State will not be sufficient to meet the expenditures authorized by the Legislature,

he shall so report to the Governor and

Council and they may temporarily curtail allotments equitably so that expenditures

will not exceed the anticipated income and other available funds." (underlining pro- vided)

This section, which is incorporated in most general-appropriations bills, acquired its present wording in 1967 with the addition of

the two words underlined in the quotation. [P. & S.L. 1967, c. 154]. These words were added during a redrafting of the bill by the Committee on Appropriations and Financial Affairs [Compare L.D. 70 with L.D. 1575]. The intent of. the resulting legislation was
-explained in the Senate as. follows:

"If our actual experience during the next biennium indicates that the State revenues

are not meeting these anticipated [revenue] estimates it is the intent of this Language that upon the determination that such a situation exists the Legislature shall be called in session as soon as possible to deal. with the problem, It is also the intent of this section that there shall be no arbitrary cuts in specified departments in order to bal- ance the budget if such revenues are not anti- cipated." Legislative Record, Senate, April 11, 1967, p. 1118.

It is reasonable to assume that the legislative intent has not changed since 1967, considering the fact that succeeding Legis~ latures have used this section verbatim, Therefore, the statutory gubernatorial authority. and the procedures to be used in the present case are clear,

First, the Governor has no power, acting alone, to curtail allotments, The Commissioner of Finance and Administration must determine that anticipated State income and other available funds will not be sufficient to meet authorized expenditures, and he ' must report this fact to the Governor and Council. Then, the
) Governor and Council have the discretionary authority to

Hon. James B. Longley
Page 4
January 7, 1976

temporarily curtail allotments of appropriated funds on an equitable basis among the departments, but only until such

time as the Legislature can meet and correct the problem through the exercise of their legislative power, . It is anticipated that | the Legislature would meet for this purpose as soon as possible.

The Governor and Council, after receiving the report of the Commissioner of Finance and Administration, would have flexibility in determining how to "equitably" curtail allotments. In construing a statute a word should be given effect according to its common meaning [Canal National Bank of Portland v. Bailey, 51 A.2d 482 (Me., 1947)], unless the word has acquired a special meaning through judicial definition (Acheson v. Johnson, 86 A.2d 628 (Me., 1952)]. In the case of ‘the word "equitably," it appears that both the common and legal definitions are very close, Webster's New International Dictionary (2nd Ed.) gives the common meaning as "justly; fairly; impartially.” The. same definition was judicially adopted in Pearce v,-Wisdom, 165 S.E. 574 (Ga., 1932), which also noted that the word gave flexibility to the defendant school superintendent who was to distribute -tax ~ funds "equitably." [See also Gericke v. City of Philadelphia,

44 A.2d 233, 236 (Pa., 1945) for proposition that the word con- fers an element of discretion], Further, Black's Law Dictionary (Revised Fourth Edition) defines the adjective form, "equitable," as: "Just, fair, and right, in consideration of the facts and circumstances of the individual case." Any curtailment plan utilized by the Governor and Council would have to fall within these definitions, but latitude Is still possible. For example,

• the Governor and Council could make across-the-board cuts which
  would affect each agency and program equally.. Alternatively, gach department head might be asked to determine what programs

or governmental functions could most fairly stand curtailments, consistent with the legislative intent, and the amounts con- carned. These examples are not exhaustive, but it is clear

that a complete withholding of funds for a program mandated

by the Legislature would not be an alternative available to

the Governor and Council under current law. Indeed, complete withholding of funds would, in effect, amount to an item veto,

a power which the Governor of the State of Maine does not possess under present law.

There are two additional points which should be discussed in light of the fact that your letter primarily concerned new programs funded by the Additional Appropriations Act (P. & S.L. 1975, ¢c. 90). First, although this Act does involve some new programs, the "new or expanded programs" prohibition of Section 9 of that Act would not apply because all of the programs contained

Hon. James B. Longley
_ Page 5
January 7, 1976

therein have been reviewed by the Budget Office and the Legis-— lature has made funds available for their use by appropriations in the Act, Second, the foregoing discussion concerning the Governor's statutory authority would apply equally to both the Current Service and Additional Appropriations Acts since the identical provision for temporary curtailment of allotments is found in both Acts, In addition, this statutory.authority is also applicable to all other appropriations measures, as pro- vided in the last introductory section of both Acts.

In summary, the Governor has certain powers conferred on him by statute which he may exercise, together with the Executive Council, in the situation where estimated State revenues will not be sufficient to meet authorized expenditures. These powers to temporarily curtail allotments on an eguiteble bagis~pending legislative action, allow the Governor certain flexibility, jut do not include withholding all funds © from new, legislatively-— approved programs. The Governor has no constitutional powers in this area to augment those conferred by statute, though cost— saving programs which further legislative intent are not prohibited, Therefore, the Governor does not have the power to withhold funds in the manner you have suggested, for such action is not author~ ized by statute and would violate the constitutional doctrine of. "separation.of powers" and “checks and balances,"

Very truly yours,

JOSEPH E. BRENNAN
Attorney General

JEB /ec