Emergency powers boost for NH governors may be curtailed

More than two thousand demonstrators rally on the plaza and lawn in front of New Hampshire's Statehouse Thursday, March 31, 2011 to protest proposed spending cuts and a provision that would strip public employees of their union protection when their contracts expire, in Concord, N.H.

Conventional wisdom has always been that the New Hampshire governor, whoever he or she may be, has less power than almost any other governor in the country.

A number of reasons are cited:

New Hampshire is one of only two states — Vermont is the other — that elect their governor every two years, all other states elect their governors to four-year terms.

But New Hampshire and Vermont, unlike many states with four-year terms, do not have a limit on how many terms a governor may serve.

Likewise, only two states retain executive councils, a vestige of Colonial times to curb executive power, New Hampshire and Massachusetts.

New Hampshire’s Executive Council has real power by having to approve all state contracts over $10,000, which Massachusetts’ council does not, although both approve judicial nominations and pardons. The New Hampshire council also approves agency department heads, which Massachusetts does not.

And Granite State department heads or commissioners serve four- and in a few cases five-year terms, which means after an election when a new governor takes over, he or she is stuck with the former governor’s picks.

And in New Hampshire the governor cannot directly propose legislation, having to depend on a member of the legislature to introduce the bill.

All of those provisions restrict the powers of New Hampshire’s governor more than many other state, but where there is a will there is a way.

After the terrorist attacks on New York City and Washington, D.C., on Sept. 11, 2001, the legislature created a law giving the governor additional authority during a state of emergency.

Until the pandemic, the governor’s full expanded authority had never been exercised.

When the pandemic hit, Gov. Chris Sununu claimed — with the advice of legal counsel — he had the authority to accept $1.25 billion in federal CARES Act money and to spend it as he saw fit without legislative or Executive Council approval.

His office cited RSA 4:45, III(e) which says the governor has the authority “To perform and exercise such other functions, powers, and duties as are necessary to promote and secure the safety and protection of the civilian population.”

Normally, the governor would need Joint Legislative Fiscal Committee approval to accept federal money not budgeted, and to spend it.

But under a declared state of emergency, the governor successfully claimed — confirmed by a superior court ruling — he did not need the legislature’s approval.

The then-Democratically controlled House and Senate filed suit claiming he was usurping their constitutionally right to control the state’s purse strings.

But the court case said the law passed after 9/11 overruled an earlier law mandating Fiscal Committee approval for accepting or spending money not in the current operating budget.

Consequently, Sununu appointed two advisory committees, one legislative and one of “stakeholders” to advise him on how best to use the CARES Act funding.

While he followed many of their recommendations, the governor announced a number of programs the day before the stakeholders met to finalize their recommendations.

If there is one thing legislators from both sides of the aisle want to protect, it is their constitutional ability to control the purse strings, so the money grab did not sit well with either party’s lawmakers, although the Democrats were more vocal about the slight.

The governor also used his expanded authority under the declaration to issue a number of executive orders, some to provide funding for impacted health-care providers like hospitals and nursing homes, and others shutting down non-essential businesses, closing schools and requiring everyone to stay home except in an emergency or to buy food or purchase medications.

And in late November during the second coronavirus surge, he issued an executive order requiring masks be worn, which set off a firestorm from the libertarian and Free Stater wing of the citizenry.

So, after Republicans seized control of the Legislature and Executive Council, numerous bills were introduced to limit what a governor can do on his or her own going forward without their involvement.

The only attempt to “rectify” what Sununu had done was a bill to reimburse business owners who were fined for not following executive orders to protect the health and well-being of customers.

Most of the bills to rein in the governor’s authority deal with the governor’s ability to renew state of emergencies in different ways.

House budget writers added a provision in its version of the two-year operating budget to require legislative approval of any state of emergency declaration beyond the initial 21-day period, although it probably will not be there when the Senate approves its version of the budget.

House Finance Committee Chair Ken Weyler, R-Kingston, wanted it included in House Bill 2, he said, in order to garner enough votes to pass the budget, which it did.

The one bill that has bipartisan support — at least in the House, which passed it 328-41 — is House Bill 417.

The bill does the three things to curtail the unfettered power of the governor during a state of emergency.

The bill extends the initial state of emergency to 30 days, and then requires legislative approval of both extending the declaration and for executive orders.

If the legislature is not able to meet, the orders and declarations are extended in 14-day increments until legislators can meet.

The bill requires Executive Council approval to accept any gifts, grants or other funds obtained for emergency purposes, and requires Fiscal Committee approval of any amount over $100,000.

The changes would be effective at the end of the current state of emergency.

“These changes address the most common concerns about the current emergency powers statute,” said the bill’s prime sponsor, Rep. Terry Roy, R-Deerfield, in supporting the bill before the House. “This emergency raised concerns about imposing too much responsibility on the governor alone, and so this bill presents a plan to share the responsibility and provide policy oversight.”

A public hearing on the House-passed bill will be held Wednesday at 9:30 a.m. before the Senate Executive Departments and Administration Committee.

The recent American Rescue Plan Act passed by Congress and signed into law by President Joe Biden, will provide New Hampshire with an estimated $1.8 billion in federal money, but unlike the CARES Act, not all of it will flow through the governor’s office.

Some is earmarked directly to cities and towns and counties, other money for schools for secondary and post-secondary, and for public works projects.

About $900 million will come to the state as discretionary funds.

In case you missed it several weeks ago, Sununu said the state of emergency will be extended for some time although he is essentially opening up the state to nearly pre-pandemic levels in a week.

While it may be a little confusing as to why a state of emergency is needed if the state is essentially “back to normal,” it really isn’t.

Unless there is a state of emergency, the governor would have to involve the legislature and Executive Council in any decisions accepting the money or spending it.

You can draw your own conclusions.

Garry Rayno may be reached at garry.rayno@yahoo.com.

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