Policy Wonk: No defense for LePage's refusal to issue bonds

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Second of two parts.

Gov. Paul LePage’s arguments to justify his refusal to issue voter-approved bonds rely on statutory language found in all of the recent bills seeking legislative and voter approval for bond issuance.

Under the heading “Authorization of bonds,” they say the treasurer of the state “is authorized under the direction of the Governor, to issue bonds in the name of the state.”

LePage and his apologists argue that the words “authorization” and “authorized” clothe the governor (and the treasurer) with discretion to issue, or not issue, the bonds as he/they see fit.

Not True. LePage does not give these words their correct meaning.

Dictionaries make clear that these words are not synonyms for the word “may.” They confer no discretion on the governor to act, or not act, as he sees fit. They merely identify the party or parties charged with executing or carrying out a duty.

A duty arises when a bond-authorizing bill receives both legislative and voter approval and becomes a law bound by the Constitutional mandate that the governor “shall take care that the laws be faithfully executed.”

No discretion or “may” exists with respect to voter-approved bonds; their status as law binds the governor to the word “shall.” His or the treasurer’s roles at this point are ministerial in character: certifying legislative and voter approval counts, structuring the particular bond issue, getting the best deal within the parameters of a fluctuating bond market.

Some analogies may be helpful. The “executor” of a will is “authorized” to carry out the terms and directives of the deceased individual’s will. He or she has no discretion to vary the terms of the will; if an executor refuses to act, a court will find a replacement.

Similarly, a trustee named in a trust instrument is “authorized” to execute (carry out) the terms of the trust instrument; what discretion he or she has (if any) must be spelled out within the instrument. If he or she does more or less, there is a breach of a fiduciary duty and potential trustee liability; a trustee who refuses to act will be replaced.

The governor also points to wording in these bond-authorizing bills which accords the governor or treasurer, and the state controller, latitude to negotiate and execute the issuance of bonds in a manner that is both practical and serves the best interests of the state.

It confers a limited or practical discretion on these parties, but it confers no right to refuse to issue voter-approved bonds. It simply allows ministerial duties incident to “executing” the law to be carried out by the appropriate parties.

Finally, the governor points to language in recent bond-authorizing bills which repeats language in the Constitution relative to the expiration of voter-approved bonds. the bills and the Constitution say that bonds “not issued within five years of the date of ratification … may not be issued after that date.” These provisions then lay out a procedure whereby the Legislature may revive or extend the life of expired bonds for an additional five years.

The issuance of bonds may be delayed for valid reasons: matching funds may be delayed, design and bid processing for major projects may take longer than anticipated, projects may be scaled up or down or abandoned, estimated bid costs may exceed projected bond revenues, alternative funding mechanisms may be used.

Avoiding the premature issuance of voter-approved bonds (incurring interest costs before projects are “shovel-ready”) again affords the governor a limited and necessary discretion.

But LePage’s assertion of an unfettered right to refuse to issue voter-approved bonds for up to five years for philosophical reasons, to gain leverage over the Legislature with respect to unrelated matters, cannot be justified.

It is worth noting that no gubernatorial powers with respect to bond issuance are noted in recent bond-authorizing bills or in the Constitution; only legislative powers are enumerated.

In sum, justification for the governor’s refusal to issue voter-approved bonds, predicated on language in recent bond-authorizing bills, does not hold up. He misconstrues the meaning of words; he would achieve his ends by refusing to perform ministerial duties, he fails to see that strained statutory arguments cannot override his constitutional duty to “faithfully execute” the law – a law that arises once the Legislature and voters approve a proposed bond issue.

The governor’s actions should be challenged in court, or by the legislative leadership seeking an opinion of the justices of the Supreme Judicial Court to determine their legality.

Orlando Delogu of Portland is emeritus professor of law at the University of Maine School of Law and a longtime public policy consultant to federal, state, and local government agencies and officials. He can be reached at orlando.delogu@maine.edu.