AG: Fitial has authority to extend austerity to federally funded posts

Attorney General Edward T. Buckingham issued yesterday a legal opinion that the governor has the power to impose austerity on both locally and federally funded Executive Branch employees, and that the Legislature cannot-through the budget law-place limitations on the governor’s power to impose austerity, modify, or rescind parts of the governor’s austerity directive or prescribe its terms.

The five-page legal opinion says the governor possesses the discretionary power to expend public funds by virtue of his duty to see that CNMI laws are faithfully executed.

Buckingham said that portions of the 2012 budget law, Public Law 17-55, that purports to exempt certain Executive Branch employees from the governor’s directive are “constitutionally invalid.”

Interior Assistant Secretary for Insular Affairs Tony Babauta, at the same time, said he has not heard of any federal agency having concerns with the expenditure or non-expenditure of funds as a result of the CNMI government’s austerity this year.

“I would expect the federal agencies, if they have a concern over the austerity measures that are affecting people carrying out their programs, that they would express that to the local government and request an exemption for those workers,” Babauta told reporters yesterday afternoon.

He said in 2010, Interior asked the CNMI governor to exempt federally funded employees in the Brown Tree Snake Control Program from austerity. Babauta said they have not asked a similar request this year because the program in the region is under review.

In 2010, Gov. Benigno R. Fitial directed Executive Branch employees’ hours to be reduced by 16 hours every pay period. He included the austerity in the 2012 budget he submitted to lawmakers.

The Legislature generally concurred with the budget bill but inserted a provision imposing a number of limitations on reducing work hours.

For example, work hours could not be reduced by more than 16 hours per pay period, and that “any employee whose salary is paid in full by federal funds shall be exempt from any work hour reduction or reduction in salary.”

Despite this, Fitial issued a directive subjecting all executive departments and agencies to 16-hour work cuts per pay period, covering local and federally funded personnel. Only certain personnel at the departments of Public Safety and Corrections and the Emergency Management Office are exempted.

Questions and answers

Buckingham’s Attorney General Opinion 2011-04 answered two questions. The first one was, “Does the governor’s authority to impose austerity on Executive Branch employees extend to employees in positions funded by the federal government?”

Buckingham’s answer was “yes.”

“The governor’s authority to restrain expenditure by controlling the working hours of Executive Branch employees does not depend on the source of funds involved. The NMI Constitution vests the governor with the executive power to spend, or not spend, Commonwealth funds. The origin of the funds has no bearing on the governor’s constitutional authority,” he said.

The second question was, “May the Legislature, through PL 17-55, place substantive limitations on the governor’s power to impose austerity, modify or rescind parts of the governor’s austerity directive, or prescribe specific terms to be included by the governor?”

The attorney general’s response was “no.”

He said the governor’s discretionary exercise of his constitutional powers pursuant to Article 3 is not subject to legislation.

Buckingham said the Legislature has the power to appropriate Commonwealth funds to a particular purpose, but does not have the authority to expend those funds.

“The Legislature may direct overall government employment, but it may not manage the staffing and resources of the Executive Branch. The Legislature may authorize expenditure for an executive position, but it may not command the governor to fill the position,” he added.