Legal memo to governor le page august 2011


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Legal memo to governor le page august 2011

  1. 1. Below is a summary of the research found addressing the power and authority of Governor LePage to intervene in Mila’s child protective services case ordering that DHHS substantiate abuse of Mila by her father based on the Spurwink finding and enforce all of all Spurwinks strongest recommendations.I. EXPERT OPINIONS ON EXECUTIVE AUTHORITY GENERALLYA number of authorities on executive power and authority, including professors atvarious universities, some of whom have published on the subject, all have agreed that aGovernor, like a President, may dictate actions to be taken by an agency within theexecutive branch. One such expert said that it is a well known principle that theGovernor is the “CEO” of the Executive and can order anyone in the executive branch todo their job. In particular, because governors have the power to fire their appointees, it isimplicit in that power that they may tell them what to do. See Myers v. U.S., 272 U.S. 52(1926)(upholding President’s power to fire executive appointee).One professor stated that in the federal context, so long as the agency is within theexecutive branch and not treated as an “independent” agency, the “president could simplyorder the agency head to take the desired action,” adding that this principle was “notreally controversial nowadays.” Another professor emphasized that the power to fire orremove contains the power to require specific action, and was surprised to hear there wasany doubt about the matter.Thus, in Executive Orders and Administrative Control, Professors Ferguson and Bowlingstate: “As ‘chief executives,’ governors must have control of the executive branch inorder to effectively administer state government.” Ferguson and Bowling, ExecutiveOrders and Administrative Control, Public Administration Review, Dec. 2008, SpecialIssue, p. S20. They note that the Winter Commission calls for stronger leadership bygovernors. Id.The National Association of Governors issued a brief, "Nine Things Governors Can Doto Build a Strong Child Welfare System" - which underlines how important improvingCPS practices and protecting children from abuse is to governor associations andgovernors generally.The Council of State Governments’ Book of the States (2004) discusses the use ofexecutive orders as the exercise of Governors’ responsibility “to see that the laws arefaithfully executed.” Id. at S22. Of particular relevance here, the above study found that 13 percent of executive orders in 2004 and 2005 directed state agencies to perform particular tasks, add to an existing program’s responsibilities, or otherwise conduct the state’s business. All states in our study exhibited some evidence of this administrative practice. . . . executive orders may be a very common way for new governors to accomplish some level of administrative reform or control.
  2. 2. Id. at S26. In short, the authors of the study concluded, after studying the use ofexecutive orders in 49 states over two years, that most such orders are “substantive innature,” including “directing particular executive action.” Id. at S27.II. MAINE LEGAL AUTHORITYThe Maine Constitution (available at, Article V, Section10 states, in pertinent part, “The Governor may require information from any militaryofficer, or any officer in the executive department, upon any subject relating to the dutiesof their respective offices.” Article V, Section 12, states, in pertinent part, “The Governorshall take care that the laws be faithfully executed.”It is clear from these provisions that the Governor has the duty and responsibility toensure that laws shall be faithfully executed. Without the right to intervene in individualcases such as Milas, this duty would be difficult to fulfill. Moreover, the Governor hasan explicit right to “require information” regarding any matter in the executivedepartment, and this right would be meaningless if he is unable to act on the informationhe receives by instructing the agency regarding action.A leading Maine legal commentator has stated that anything pending before an executivedepartment is also “pending before the governor," Tinkle, The Maine State Constitution:A Reference Guide 104 (1992)In State v. Simon, 149 Me. 256 (Me. 1953), the Defendant, who was charged with bribingthe Governor, argued that the charges in his indictment were not offenses under thebribery statute because "(1)...the Governor had no official or executive capacity, authority or legal duty, either at common law or under the bribery statute, over the matterconcerning which the bribe was allegedly offered; and (2) [t]hat if he did have suchofficial capacity and legal duty, it is not properly alleged in any count in the indictment."The Maine Supreme Court held that “[e]ach count stands as a valid and sufficient counton the general principle that everything pertaining to the executive department of theState, and more particularly in this instance to the maintenance of our highways, is at alltimes a matter pending or a matter which may legally come before the Governor in hisofficial capacity.” Id. at 265, emphasis added. The Simon court also stated, “[t]he eyes ofthe Governor are at all times open upon the activities of the executive department.Nothing officially escapes his attention.” Id. at 264.Another example of Maine’s grant of broad powers to its governor can be found in itsgrant of gubernatorial power to remove judges by address of two thirds of both houses ofthe .Other states providing this authority to the governor include Texas, South Carolina, NewHampshire, Michigan, Massachusetts, Maryland, Connecticut, and Arkansas. Id.
  3. 3. The breadth of the governor’s power as the chief executive of the executive branch wasrecently affirmed in Maine in the case concerning the Governor’s removal of a muralfrom the department of labor, ruling that it was a “permissive exercise of gubernatorialauthority.” THE SUPREME COURTThe constitutionally-based principle that the executive has the authority to remove (andcontrol) executive officers stems from the Supreme Court case Myers v. U.S., 272 U.S. 52(1926). The Court stated: ...The ordinary duties of officers prescribed by statute come under the general administrative control of the President by virtue of the general grant to him of the executive power, and he may properly supervise and guide their construction of the statutes under which they act in order to secure that unitary and uniform execution of the laws which Article II of the Constitution evidently contemplated in vesting general executive power in the President alone. Laws are often passed with specific provision for the adoption of regulations by a department or bureau head to make the law workable and effective. The ability and judgment manifested by the official thus empowered, as well as his energy and stimulation of his subordinates, are subjects which the President must consider and supervise in his administrative control. Finding such officers to be negligent and inefficient, the President should have the power to remove them....Myers v. United States, 272 U.S. 52, 135 (1926)(emphasis added).CONCLUSIONFor all the reasons described above, it appears uncontroversial that the Maine Governormay order an executive officer to take specific action, a power which is encompassed inthe unquestionable power to fire and remove executive officers, and which is implicit inthe responsibility to “take care that the laws be faithfully executed.” Where, as here, theagency’s discretion has been abused, the Governor, as the executive branch’s “CEO,” hasthe power and arguably the responsibility to supervise its actions and correct its mistake,in this case protecting a small child from ongoing abuse by her father, including sexualabuse at the age of two which was substantiated by Spurwink, Maines leading authorityon such matters. ###