In an interview, Attorney General Edward T. Buckingham said: “We stand by our opinion.”
This was his response to the Legislative Bureau’s memorandum last week to the AGO’s claim that Section 602 of P.L. 17-21, or the FY 2011 budget law, “encroaches upon the constitutional power of the executive branch by requiring that any existing vacant position within the executive branch be approved by the Legislature before being filled.”
The LB said the “law is a law until the courts say otherwise.”
The AG opinion cited the separation of powers doctrine, stating that “any statute that purports to confer upon a legislative body the ability to restrict the function of the executive usurps the executive function and contravenes the well-established separation of powers doctrine.”
The LB’s memo also cited the separation of powers doctrine in claiming that the AGO opinion “is not binding.”
This doctrine, the LB memo said, protects each branch of the government from the encroachment of another. Therefore, the “separation of powers” doctrine operates both ways, it added.
“Just as the Legislature cannot act within the realm of the judiciary or the executive branch, the judicial and executive branches likewise cannot operate within the legislative branch’s constitutional scope of authority,” the LB memo said.
It added that the AGO opinion clearly “ignores the relevant legislative intent and history associated with the use of the term ‘FTEs’ in the FY 2011 budget.”
“It appears that the AG opinion is not properly and thoroughly researched” as it cited obsolete law and failed to address relevant legislative history,” the LB memo stated.
Section 602 of the budget law requires an automatic elimination of vacant FTE’s.
This was patterned after provisions of previous appropriation acts that eliminated vacant FTE’s after the position had been vacant for 180 days, the LB memo stated, adding that Section 602(b) reduces the 180-day period to 0.
A Legislative Bureau staffer who requested anonymity said their memo does not “attack” the AG’s opinion.
But, the staffer added, “if they violate the law, by failing to comply with Section 602, then they stand to be held personally liable. Will the AGO defend them? If the AGO advises someone to break the law because the AGO came to the conclusion that the law is unconstitutional would the AGO say that the person is capable of being defended by it?”
