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 the federal "impoundment" cases. The leading federal authorities, including Train v. City of New York, 420 U.S. 35 (1975), and International Union, UAW v. Donovan, 746 F.2d 855 (D.C. Cir. 1984) (Scalia, J.), reject any inherent executive power to decline to spend in the face of a clear legislative directive. The same logic applies to the Maine Governor.

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 Board of Environmental Protection sits within the Department of Environmental Protection but operates as a separate body that adopts environmental rules and decides certain permit appeals. The 1989 reform (38 M.R.S.A. § 341-F, enacted by P.L. 1989, ch. 890, § A-13) gave the Board its own professional staff for the first time, hired by the Chair with the consent of the Board. The corresponding appropriation in § B-296 and § B-297 funded an Executive Director and a Clerk-Typist III.

Maine's curtailment statute, 5 M.R.S.A. § 1668, is the only general statutory authority for the Governor to reduce allotments. Its requirements include: a report from the Commissioner of Finance triggering the process, equitable across-the-board curtailment, and adherence to legislative intent.

Federal "impoundment" doctrine, developed during the Nixon-era confrontations between Congress and the executive, holds that the executive may not refuse to spend appropriated funds based on policy disagreement with the underlying program. Train v. City of New York is the landmark Supreme Court decision; numerous lower-court decisions before and after reach the same conclusion. The AG treats this body of law as persuasive in interpreting the parallel Maine constitutional provisions.

Common questions

What is impoundment?
A unilateral executive refusal to spend money the legislature has appropriated. The federal cases hold it unconstitutional absent express statutory authority. The same rule applies in Maine.

Was the Governor totally without budget tools?
No. The Governor had the curtailment power at 5 M.R.S.A. § 1668. He could also pursue genuine cost-saving programs that did not defeat legislative intent. The 1976 opinion includes a careful discussion of those legitimate tools. What the Governor could not do was refuse to spend a specific appropriation for a position he disliked.

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."

What happened after the AG opinion?
The opinion is advisory. The opinion's reasoning is sound but does not by itself unwind the action. Subsequent events, including any later curtailment order or judicial review, sit outside this opinion's scope.

Does this affect federal-level analysis of executive power?
The opinion cites federal cases (including a Scalia D.C. Circuit decision) approvingly. But the AG is interpreting Maine constitutional and statutory law. The federal cases are persuasive analogies, not controlling authority.

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

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

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 [should be Art. II, § 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.

[Attached: Op. Me. Att'y Gen. (Jan. 7, 1976), to Governor James B. Longley, addressing the Governor's statutory authority to curtail allotments under what is now 5 M.R.S.A. § 1668, and rejecting any inherent constitutional impoundment power. The 1976 opinion discusses Maine's separation-of-powers and checks-and-balances doctrines (Me. Const. art. III, §§ 1 and 2; art. IV, pt. 3, § 2), the legislative history of the temporary-curtailment language (P. & S.L. 1967, c. 154; Legislative Record, Senate, April 11, 1967, p. 1118), and applicable federal authority including Sioux Valley Empire Electric Association, Inc. v. Butz, 367 F. Supp. 686 (D.S.C. 1973); Guadamuz v. Ash, 368 F. Supp. 1233 (D.D.C. 1973); and Commonwealth of Pennsylvania v. Lynn, 501 F.2d 848 (D.C. Cir. 1974). It also construes the term "equitably" in the curtailment statute using Canal National Bank of Portland v. Bailey, 51 A.2d 482 (Me. 1947); Acheson v. Johnson, 86 A.2d 628 (Me. 1952); Pearce v. Wisdom, 165 S.E. 574 (Ga. 1932); and Gericke v. City of Philadelphia, 44 A.2d 233 (Pa. 1945).]