Governor’s EO Purports to Block Legislature’s Oversight Powers

March 20, 2010

Governor Consolidates State Debt and Bonding Agencies

In a March 4, 2010 press release, Gov. Granholm’s Office stated:

Consolidation part of governor's 29 government reforms

outlined in January

LANSING - Governor Jennifer M. Granholm today issued

Executive Order 2010-2 to further improve efficiency in state
government by consolidating 10 public finance authorities into one
Michigan Finance Authority. The new finance authority will be an
autonomous entity within the Department of Treasury and is one of
the 29 government reforms outlined by the governor in January to
transform Michigan government.

"Today's executive order is the latest in a series of actions to make

Michigan government more efficient, responsive and cost
effective," Granholm said. "By consolidating several public
finance authorities into one, we will be more nimble and improve
coordination and efficiency."

EO Undermines Legislative Oversight Powers

In an obscure provision of the Executive Order, the Governor attempts to limit both public
access and legislative oversight of an agency issuing billions of dollars of debt. In Section III,
K of Executive Order 2010-2, the Governor orders:

K. Members of the Board of the Directors of the Authority shall

refer all legislative and media contacts relating to the Authority to
the Department of Treasury.

Public members of boards and commissions serve a public role. They are not state employees.
By muzzling the board members from responding to lawful legislative inquiries, the provision
would help cover up any misconduct by state employees. The recent disaster with Granholm’s
MEDC staff giving tax credits to felons and the ongoing scandal among Detroit pension funds
suggests that Michigan citizens need more, not less oversight.

Under the Michigan Constitution, the “legislative power” includes the oversight powers. These
powers are similar to the powers of the U.S. Congress under the U.S. Constitution. A
Wikipedia entry outlines the subject:

http://en.wikipedia.org/wiki/Congressional_oversight
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Congressional oversight refers to oversight by the United States

Congress of the Executive Branch, including the numerous U.S.
federal agencies. Congressional oversight refers to the review,
monitoring, and supervision of federal agencies, programs,
activities, and policy implementation.[1] Congress exercises this
power largely through its congressional committee system.
However, oversight, which dates to the earliest days of the
Republic, also occurs in a wide variety of congressional activities
and contexts. These include authorization, appropriations,
investigative, and legislative hearings by standing committees;
specialized investigations by select committees; and reviews and
studies by congressional support agencies and staff.

Congress’s oversight authority derives from its “implied”

powers in the Constitution, public laws, and House and Senate
rules. It is an integral part of the American system of checks
and balances.

***

Principles

Underlying the legislature's ability to oversee the executive are

democratic principles as well as practical purposes. John Stuart
Mill, the British Utilitarian philosopher, insisted that oversight was
the key feature of a meaningful representative body: “The proper
office of a representative assembly is to watch and control the
government.” As a young scholar and future President, Woodrow
Wilson equated oversight with lawmaking, which was usually seen
as the supreme function of a legislature. He wrote, “Quite as
important as legislation is vigilant oversight of administration.”

The philosophical underpinning for oversight is the Constitution’s

system of checks and balances among the legislature, executive,
and judiciary. James Madison, known as the “Father of the
Constitution,” described the system in Federalist No. 51 as
establishing “subordinate distributions of power, where the
constant aim is to divide and arrange the several offices in such a
manner that each may be a check on the other.”

Purposes

Oversight, as an outgrowth of this principle, ideally serves a

number of overlapping objectives and purposes:
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improve the efficiency, economy, and effectiveness of

governmental operations;

evaluate programs and performance;

detect and prevent poor administration, waste, abuse,

arbitrary and capricious behavior, or illegal and
unconstitutional conduct;

protect civil liberties and constitutional rights;

inform the general public and ensure that executive policies

reflect the public interest;

gather information to develop new legislative proposals or

to amend existing statutes;

ensure administrative compliance with legislative intent;

and

prevent executive encroachment on legislative authority

and prerogatives.

In sum, oversight is a way for Congress to check on, and

check, the executive.

A National Conference of State Legislators public also covers the subject:

http://www.ncsl.org/Default.aspx?TabId=13538

Separation of Powers--Legislative Oversight

Oversight in General

During the past three decades, legislatures have enhanced their

capacity to play a more active role in the policymaking process.
They have asserted their independence from the governor, assumed
a greater responsibility in formulating policy, and more actively
oversee the operations of the executive branch.

Legislative oversight takes many forms. Most often, legislative

standing committees are responsible for continuous review of the
work of the state agencies in their subject areas. Legislatures also
have created special committees or staff agencies designed
specifically to evaluate agency operation and performance. In
addition, legislatures may review (and sometimes, veto) the rules
and regulations developed by executive agencies to implement
law.
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Legislative oversight is a fundamental check and balance. As

states have assumed greater responsibilities for government
programs and services, the importance of legislative oversight has
increased. More active legislative involvement, however, may
increase frictions with the executive branch.

***

Governor Cannot Limit Legislature’s Constitutional Oversight Power to

Investigate State Agencies and Officials.
The Michigan Constitution provides:

Art. IV. § 1 Legislative power.

Sec. 1. The legislative power of the State of Michigan is vested in

a senate and a house of representatives.

§ 10 Legislators and state officers, government contracts,

conflict of interest.

Sec. 10. No…state officer shall be interested directly or indirectly

in any contract with the state or any political subdivision thereof
which shall cause a substantial conflict of interest. The legislature
shall further implement this provision by appropriate legislation.

§ 16 Legislature; officers, rules of procedure, expulsion of

members.

Sec. 16. Each house, except as otherwise provided in this

constitution, shall choose its own officers and determine the rules
of its proceedings….

Under the Powers of Legislative Committees Act, Act 118 of 1931, the Legislature may
subpoena any person and the Governor has no power to block the appearance:

MCL § 4.101 Legislative committees; powers, punishment for

contempt.

Sec. 1. Committees and commissions of or appointed by the

legislature may by resolution of the legislature be authorized to
administer oaths, subpoena witnesses and/or to examine the
books and records of any persons, partnerships or corporations
involved in a matter properly before any of such committees or
commissions. Any witness who neglects or refuses to obey a
subpoena of any of such committees or commissions, or who
refuses to be sworn or testify, or who fails on demand to produce
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any papers, books or documents touching any matter under

investigation, or any witness or attorney who is guilty of any
contempt while in attendance at any hearing before any of such
committees or commissions, may be punished as for contempt of
the legislature.

Under the Oaths, Depositions and Acknowledgment Act, Act 127

of 1901, individual legislators have powers:

MCL § 4.121 Oaths, depositions, acknowledgments; powers of

legislators.

Sec. 1. During his term of office, every senator and

representative in the state legislature is hereby authorized, by
virtue of his office to administer oaths, take depositions and
acknowledgments.

Subpoenaing records and Files Act, Act 46 of 1952:

MCL § 4.541 Legislative committees; inspection of records and

files of state departments, boards, institutions, and agencies;
subpoena duces tecum.

Sec. 1. Notwithstanding any other provision of law to the contrary,

any standing or select committee of the senate or the house of
representatives, and any joint select committee of the senate and
house of representatives, shall be authorized to subpoena and
have produced before any such committee, or inspect the
records and files of any state department, board, institution or
agency; and it shall be the duty of any state department, board,
institution or agency to produce before the committee as
required by the subpoena, or permit the members of any such
committee to inspect its records and files. Such records and files
shall be subpoenaed, examined or used only in connection with the
jurisdiction and purposes for which the committee was created.

What Should the Legislature Do?

1. The Legislature, through a majority vote of both houses, can veto a Governor’s
Executive Order.

2. But more importantly, it could exercise the Legislature’s oversight power to get
commitments from the Governor regarding her compliance with inter-branch access to
information under the Constitution. The following questions should be asked and
answers received:

a. Does the Governor understand that the language “Members… shall refer all
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legislative and media contacts relating to the Authority to the Department of

Treasury” does not limit the power of the Legislature or individual legislators to
communicate with and, if necessary, compel the appearance of a Member
whether the Governor or the Treasury likes it?

b. Does the Treasury intend to limit Members communications to legislators or

monitor what Members say about the administration of the Authority’s
programs.

c. Does the Governor or the Treasury seek to monitor or preclude direct contacts
between the Legislative Auditor General or the House or Senate Fiscal Agency
staffs and Members of the Authority investigating abuses?

3. New boilerplate in Treasury Appropriations bill. The Legislature could insert language
in the Treasury appropriations bill either repealing Section III. K. (once effective, the
section becomes part of the Compiled Laws.)

4. Seek legal guidance that the provision in section III. K. is within the scope of the
governor’s reorganization powers:

Art. V, § 2 Principal departments.

Sec. 2. All executive and administrative offices, agencies and

instrumentalities of the executive branch of state government and
their respective functions, powers and duties, except for the office
of governor and lieutenant governor and the governing bodies of
institutions of higher education provided for in this constitution,
shall be allocated by law among and within not more than 20
principal departments. They shall be grouped as far as practicable
according to major purposes.

Subsequent to the initial allocation, the governor may make

changes in the organization of the executive branch or in the
assignment of functions among its units which he considers
necessary for efficient administration. Where these changes require
the force of law, they shall be set forth in executive orders and
submitted to the legislature. Thereafter the legislature shall have 60
calendar days of a regular session, or a full regular session if of
shorter duration, to disapprove each executive order. Unless
disapproved in both houses by a resolution concurred in by a
majority of the members elected to and serving in each house, each
order shall become effective at a date thereafter to be designated
by the governor.

***