Battle over spending fed money moves to Hillsborough Superior Court

Gov. Chris Sununu (Courtesy photo) and Rep. Mary Jane Wallner, D-Concord, chairman of the Joint Fiscal Committee. (Paula Tracy photo)

CONCORD - The constitutional squabble between legislative leaders and Gov. Chris Sununu over who has authority to spend unappropriated federal and state money to fight the COVID-19 epidemic moved to court on Monday.

In the emergency motion filed in Hillsborough County Superior Court North, legislative leaders claim Sununu's plan to expend the more than $1.2 billion in federal funds to fight the pandemic violates the separation of powers provision in the state constitution and is prohibited by law.

"The legislative branch's exclusive power to make appropriations is a nondelegable duty," legislative leaders claim in the suit.

The legislature and Sununu clashed last week after he announced the creation of the Governor's Office for Emergency Relief and Recovery (GOFERR) to determine how to spend $1.25 billion in federal money the state is slated to receive through the federal $2.2 trillion CARES Act approved last month.

The office includes an advisory committee of both Democratic and Republican leadership, but is non-binding, the suit claims.

Last week Sununu said at a press conference, "There is going to be nothing done behind closed doors. It is not window dressing by any means."

Sununu claims a 2002 state law passed after the September 11 terrorist attacks gives governors authority to spend and accept federal funds without Fiscal Committee approval, but legislative leaders say the same law requires a governor to seek the "advice and consent" of the Fiscal Committee.

In the suit, Rep. Mary Jane Wallner, Chair of the Joint Fiscal Committee, Sen. Lou D'Allesandro, Vice Chair of the Joint Fiscal Committee, Senate President Donna Soucy, and House Speaker Stephen Shurtleff seek a preliminary and permanent injunction to block new spending by the executive branch without Fiscal Committee approval.

"No one's first choice - or even second choice - was to go to court. We reached out to the governor on multiple occasions to settle this amicably. But Gov. Sununu refused, and he left us no other choice," said Soucy. "The governor's assertion that he can bypass the Fiscal Committee and be the sole arbiter of $1.25 billion and more in taxpayer money is not what's best for the people of New Hampshire, and it would set a dangerous precedent that could allow any governor to violate the separation of powers clause."

Sununu's office said he intends to move forward as planned with the new office as his top priority to provide emergency relief for the state.

"Our office will continue to follow the law as was passed in 2002 granting the governor authority to take immediate action during this statewide crisis. It is the legislature's prerogative to check in with the courts and we will always maintain a collaborative relationship with them" said Sununu's communications director Ben Vihstadt. "Ensuring New Hampshire families receive immediate emergency relief is paramount and the governor remains committed to that goal."

The suit seeks to both prevent him from spending money without Fiscal Committee consent and to compel the governor to obtain the committee's approval before spending unappropriated state or federal funds.

The suit notes that Sununu has already spent unappropriated state funds without fiscal committee approval violating both state law and the state constitution.

The Health and Human Services Department presented two "informational items" to the fiscal committee Friday transferring $18 million in general fund money from several new programs this fiscal year to pay for testing, personal protection equipment and healthcare provider contracts to address the COVID-19 outbreak.

Traditionally, inter-department transfers of that amount have to be approved by the fiscal committee.

Sununu claims the fiscal committee process is too cumbersome and time consuming when quick action is needed to address COVID-19's spread throughout the state.

He has said several times he needs the flexibility to react quickly when problems arise.

But legislative leaders have maintained the fiscal committee can meet every day if necessary to act on the governor's request and did so Friday in approving spending $1.2 million in federal coronavirus money to boost the Meals on Wheels and Congregate Meals program so more at-risk seniors could remain in their homes and not need to go out.

"The fiscal committee has always acted quickly and judiciously - as evidenced by last week's swift approval of funds from the federal Families First Coronavirus Response Act to bolster our state Meals on Wheels program and make sure our seniors don't go hungry," said D'Allesandro. "The committee's openness and transparency ensures that Granite Staters can have faith that the allocated funds are being wisely spent."
The lawsuit was filed the first business day after the meeting.

In the past, the fiscal committee approved the executive branch's plans for the millions of dollars in federal stimulus money spending the state received in 2009, and the Executive Council approved the construction contracts.

But Sununu said the epidemic is a unique situation and quick action is a necessity, but lawmakers contend state law still needs to be followed.

"The plain language of the relevant statutes, read together, unambiguously demonstrates that the legislature never delegated its core constitutional function of approving government spending during an emergency," writes Senate Legal Counsel Gregory L. Silverman in the suit. "It is critical for government stability in this public health crisis that more than one billion dollars are spent in conformity with the rule of law."

The suit claims the governor has usurped the legislature's budgetary authority.

"The executive branch does not have unconstrained power to budget and spend money without legislative branch involvement. No governor can unilaterally spend $1.25 billion in taxpayer money on their own," said Shurtleff. "Our constitution demands co-equal branches of government to ensure a thriving republic and we will do everything we can to maintain that balance of power - for the good of the people."

The suit seeks to compel Sununu to seek approval for unappropriated spending, to block any executive branch spending that is not approved by the fiscal committee and to declare that money already spent is in violation of state law and the constitution.

In the memorandum of law accompanying the suit, Silverman argues if nothing is done and the governor moves forward, there would be no way to rectify the action.

"More than one billion dollars of taxpayer dollars could be spent in violation of the law" he writes. "The public will have no plausible way of recovering such funds."

He argues the governor's assertion of authority over the federal money violates the state constitution.

"Governor Sununu's interpretation of RSA 4:45, III(e) grants himself unaccountable discretion to appropriate public dollars whenever he declares an emergency," Silverman writes. "Such a broad transfer of the legislative branch's essential powers to the executive branch constitutes a violation of the separation of powers clause."

Legislative leaders said in a statement they did not want to take this step, but the governor has left them no other choice.

"Right now, the legislature's most important job is to get federal funds to combat coronavirus into the hands of New Hampshire families, communities, businesses, and nonprofits that have been impacted. The swiftest means of doing that effectively, equitably, and constitutionally is the bipartisan Joint Legislative Fiscal Committee," said Wallner. "Unfortunately, Gov. Sununu has chosen to disregard the legislative branch, which represents the voice of the people. His refusal to compromise led us to the judicial branch today, where we are seeking an expedited court ruling to resolve this constitutional crisis."

The fiscal committee is scheduled to meet April 20 for a briefing by the Legislative Budget Assistant on the federal guidelines for spending the CARES Act money.

The GOFERR committee's first unofficial planning meeting was Monday.

Garry Ranyno is INdepthNH.org's Statehouse Bureau Chief. He can be reached at garry.rayno@yahoo.com