Can the Maine governor lay off state workers or stop spending appropriated funds to push through Productivity Task Force changes before the Legislature acts?

Plain-English summary

The 117th Legislature's first regular session created a Productivity Realization Task Force, with a target of $45.3 million in General Fund savings over the 1996-97 biennium. The Task Force's job was to recommend efficiency changes; the Governor's job was to act on them. Speaker Gwadosky asked Attorney General Andrew Ketterer two questions about how far the Governor could go without waiting for the Legislature: could the Governor lay off employees in advance of legislative action, and could the Governor decline to spend appropriated funds in agency "All Other" accounts to eliminate programs.

The AG's answer split the difference. Layoffs and "All Other" reductions that produced efficiency savings were fair game; the productivity initiative explicitly contemplated that the Executive Branch would deliver $3.5 million in "All Other" savings already deappropriated under P.L. 1995, ch. 368, Part H. But layoffs that would zero out a statutorily mandated program were a different matter. Until the Legislature actually passed a statutory change, the existing statute remained in effect, and the Governor could not effectively repeal a program by refusing to staff or fund it.

The Governor's transfer authority in Section D-5 was read in the same key. That section let the Governor move funds between line categories, accounts, and departments "notwithstanding any other provision of law," but only to the extent needed to meet the lump-sum deappropriations targeted in the budget bill. The AG read the "notwithstanding" language narrowly, as overriding statutes that block transfers, not as a general license to override existing programmatic statutes.

The summary line, repeated several times: the Governor could not use spending discretion to "effectively eliminate a statutorily mandated program or otherwise contravene existing statutes," and the legality of any particular layoff or spending cut depended on the specific statutory framework for the affected program. The opinion cross-referenced earlier opinions on the same Task Force, Op. Me. Atty. Gen. 95-6 and 95-7.

Currency note

This opinion was issued in 1995. 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.

Common questions

What was the Productivity Realization Task Force?

A 1995 study group created by Part D of P.L. 1995, ch. 99 to recommend ways for state government to save $45.3 million in the 1996-97 biennium through efficiency improvements and program changes. Some recommendations the Governor could implement directly; others required legislative action.

What is an "All Other" account?

A non-personnel-services budget category in Maine state agency appropriations. "Personal Services" covers salaries and benefits. "All Other" covers operating expenses, supplies, contracts, and the like. The Legislature can deappropriate from either category.

Why does the distinction between "discretionary" and "mandated" programs matter so much?

Under Maine separation-of-powers principles, the Legislature creates and funds state programs. If a statute requires an agency to run a program, the Executive must run it; the Governor cannot end that program unilaterally by simply refusing to spend the appropriation. If a statute merely authorizes (but does not require) a program, the Executive has discretion to scale it back or stop it.

Did the Governor have to spend every dollar appropriated?

No. The AG was clear that "nothing requires the Executive Branch to spend every penny that has been appropriated," especially in "All Other" accounts. The Governor could keep savings, transfer them within Section D-5 limits, or simply leave funds unspent. The line was at eliminating a mandated program, not at saving money.

What was Section D-5 specifically authorizing?

Section D-5 of P.L. 1995, ch. 99 let the Governor transfer "available balances of General Fund appropriations between line categories, accounts and departments" notwithstanding other law. The AG read the "notwithstanding" clause to override Maine statutes that ordinarily restrict such transfers, allowing the Governor to move money in pursuit of efficiency. It did not authorize the Governor to override programmatic statutes by transferring all funds away from a mandated program.

Background and statutory framework

P.L. 1995, ch. 99 was the Maine Legislature's productivity initiative for the 117th biennium. Part D created the Task Force and set the savings target. The companion budget bill, P.L. 1995, ch. 368, Part H, locked in $35.3 million of personal-services and $3.5 million of all-other deappropriations across executive-branch agencies, in anticipation of productivity savings. The Governor's transfer power was in Section D-5; the implementation framework was in Sections D-3 through D-5, which contemplated that some Task Force recommendations would need legislative action and others would not.

The AG's analytical move was to treat the statutory program at issue as the controlling constraint. The Governor's executive authority over spending and personnel was real but bounded by the statutes the Legislature had already enacted. Where a recommendation would require statutory change, the Governor could not implement that change by spending decisions alone. Earlier opinions Op. Me. Atty. Gen. 95-6 and 95-7 had already addressed related aspects of the Task Force.

Citations

• P.L. 1995, ch. 99, Part D (creating the Productivity Realization Task Force)
• P.L. 1995, ch. 99, § D-1 (statement of purpose, $45.3 million savings target)
• P.L. 1995, ch. 99, §§ D-2(1) and D-3(1) (Task Force role is advisory)
• P.L. 1995, ch. 99, § D-3(2) (Task Force recommendations to the Governor)
• P.L. 1995, ch. 99, § D-4 (procedure for recommendations requiring legislation)
• P.L. 1995, ch. 99, § D-5 (Governor's transfer authority)
• P.L. 1995, ch. 368, Part H ($35.3M personal services + $3.5M all other deappropriations)
• Op. Me. Atty. Gen. 95-6 (earlier Task Force opinion)
• Op. Me. Atty. Gen. 95-7 (earlier Task Force opinion)

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/1995/ag_19951019.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

95-12

ANDREW KETTERER
ATTORNEY GENERAL

STATE OF MAINE
DEPARTMENT OF THE ATTORNEY GENERAL
6 STATE HOUSE STATION
AUGUSTA, MAINE 04333-0006

October 19, 1995

Honorable Dan A. Gwadosky
Speaker, Maine House of Representatives
2 State House Station
Augusta, ME 04333-0002

Dear Speaker Gwadosky:

I am writing in response to your letters of September 19, 1995 and September 21, 1995, asking two questions with regard to the powers of the Governor to implement recommendations of the Productivity Realization Task Force, established at the First Regular Session of the 117th Legislature.

Your letter of September 19 asks whether, in the circumstance in which a recommendation of the Task Force will require legislative action, the Governor has the authority to lay off State employees in advance of such action. Your letter of September 21 concerns the authority of the Governor with respect to programs for which appropriations have been made in "All Other" accounts, and it is our understanding from discussions with your staff that your essential question is whether the Governor has the legal authority to eliminate programs by declining to spend funds appropriated to particular State agencies in their "All Other" accounts.

For the reasons which follow, it is the opinion of this Department that the Governor may not lay off employees in advance of legislative action if the result of those layoffs would be to eliminate a legislatively mandated program. In addition, it is our view that, while the Governor may direct that "All Other" funds appropriated to particular State agencies not be spent in order to achieve efficiencies, he may not use such authority to eliminate legislatively mandated programs entirely. In both cases, however, the legality of any particular layoff or any particular reduction in "All Other" funds would depend on the specific statutory provisions relating to the governmental program in question and the specific facts and circumstances of the proposed layoff or program cut.

The Productivity Realization Task Force was created by Part D of P.L. 1995, ch. 99. The legislative objective is expressed in the introductory statement of purpose for the overall productivity initiative, contained in Section D-1 of Chapter 99:

The intent of the productivity initiative is to expedite and facilitate the implementation of improvements in State Government operations through the realization of cost savings from increased productivity of state employees, more efficient delivery of services and the elimination of waste, duplication and unnecessary programs. The intent of this Part is to develop a mechanism so as to achieve $45,346,780 in savings to the General Fund in the 1996-97 biennium.

The thrust of this statement, as well as the further delineation of Task Force responsibilities in Sections D-2(1) and D-3(1), is plain: the Task Force is to recommend to the Governor and the Legislature changes in the structure and operation of State government for the purpose of achieving $45,000,000 in savings through greater efficiency. The Task Force itself has no authority to lay off employees or make management or program changes. Its role is advisory only. See Section D-2(1). Sections D-3(2), D-4 and D-5 contemplate that the Governor will have authority to implement certain Task Force recommendations on his own and that other recommendations will require legislative action. Against this statutory background, this Department answers your questions as follows:

In your September 19 letter, you ask whether, in the event that a Task Force recommendation would require legislative action, the Governor could begin to implement the recommendation by laying off State employees in anticipation of such legislation action. When P.L. 1995, ch. 99 was enacted, it was contemplated that the Governor would have the ability to achieve budgetary savings through various measures, including layoffs, in instances where the Productivity Realization Task Force recommended that State functions could be performed by fewer employees and statutory changes are not required.

A more troublesome issue is created if layoffs are not related to increased productivity but are instead designed to implement proposed legislative changes that have not yet been enacted. To the extent that such layoffs would have the effect of eliminating a statutorily mandated State program, we do not believe that the Governor would have such authority. Until the Legislature acts, the existing statute remains in effect, and the Legislature is free to reject the proposed legislative change. Under these circumstances, the Governor would not be free to override existing statutory provisions on the theory that they might be amended in the future.

It bears emphasis that this would not preclude the Governor from making layoffs based on productivity improvements in program areas in which it is also anticipated that future legislative changes will be made. Nor would it preclude the Governor from making layoffs in areas where the result of such layoffs would not contravene any existing statute. The legality of any particular layoffs would depend both on the specific statutory provisions relating to the affected program and the specific impact of the proposed layoffs on the operations of the program.

Your inquiry of September 21, as we understand it, is whether, in carrying out the recommendations of the Task Force, the Governor may decline to spend funds appropriated to particular State agencies in their "All Other" accounts in such a way as to achieve the elimination of legislatively mandated programs.

It is the view of this Department that the Governor generally has authority to decline to spend appropriated funds in "All Other" accounts. Indeed, in P.L. 1995, ch. 368, Part H, the Legislature deappropriated a total of $35,258,833 from the "Personal Services" accounts of the departments and agencies of the Executive Branch for fiscal years 1996-97 and deappropriated $3,541,781 from those agencies' "All Other" accounts. Those deappropriations were made in anticipation of savings to be realized as a result of the productivity initiative in P.L. 1995, ch. 99, Part D. Thus, the Legislature specifically contemplated that the Executive Branch would realize at least $3.5 million in "All Other" savings.

To be sure, the Governor could also reduce "All Other" spending by more than $3.5 million to the extent that he or his commissioners find that governmental services can be provided in a more efficient manner. Nothing requires the Executive Branch to spend every penny that has been appropriated. However, this principle does not permit the Executive Branch to decline to spend "All Other" money where that would result in the elimination of a statutorily mandated program. Once again, the operative principle is that the Governor may not override existing statutes in exercising his executive authority to control spending.

Section D-5 of P.L. 1995, ch. 99, does provide the Governor with authority, notwithstanding any other provision of law, to transfer the available balances of General Fund appropriations between line categories, accounts and departments. By its express terms, this authority is limited to the amount required "to achieve the savings necessary to meet the lump sum deappropriations to be authorized in [fiscal years 1996 and 1997]." Moreover, we interpret the Governor's authority under Section D-5 in keeping with the overall intent of the productivity initiative, thus allowing the Governor to transfer appropriation balances (notwithstanding statutory provisions that would otherwise prohibit such transfers) where such transfers are intended to achieve efficiencies in governmental operations. The Governor's delegated authority in Section D-5 is accompanied by express statutory standards which demonstrate that such authority was designed to allow the Governor to realize cost savings through increased efficiency and productivity and did not constitute a grant of authority to override legislative decisions as to whether or not to provide a specific governmental service. See our earlier opinions on the subject of the Task Force, Op. Me. Atty. Gen. 95-6 and 95-7.

While there is language in Part D of P.L. 1995, ch. 99 that suggests that one of the goals of the productivity initiative is to eliminate "unnecessary programs," see Section D-1, we believe that this language does not allow existing statutes to be overridden (except for any specific statutes that would bar transfers between appropriations as contemplated by Section D-5) because the productivity initiative legislation specifically contemplates in Section D-4 that certain Task Force recommendations will require legislative changes and sets up detailed procedures relating to such changes.

Thus, while the Governor has significant authority with respect to the expenditure of appropriated funds, he is not authorized to make spending decisions that would effectively eliminate a statutorily mandated program or otherwise contravene existing statutes. The legality of any specific decision not to spend "All Other" funds would depend on the particular statutory provisions involved and the specific impact of the particular reduction in spending.

I hope the foregoing is helpful to you. Please feel free to reinquire if further clarification is necessary.

Sincerely,

ANDREW KETTERER
Attorney General

AK:sw
cc: Governor Angus S. King, Jr.
President Jeffrey H. Butland