Governor Gordon vetoes several areas in supplemental budget bill while highlighting its funding choices

Gov 2-27-19

Governor Mark Gordon complimented the Wyoming Legislature on providing a supplemental budget that sets a “deft” fiscal path. He recognized that the budget act shows constraint and means Wyoming will increase its savings this year.

“I believe Wyoming’s residents will benefit from your efforts on this supplemental budget. In saying so, I recognize supplemental budgets are not meant to make enormous strides, but rather to adjust spending within the context of a broader budget passed in 2018,” Governor Gordon wrote.

Specifically, the governor highlighted the funding of the carbon capture pilot project through the University of Wyoming’s School of Energy Resources; additional tools to support local governments including dollars for planning by counties and a position to support locals as they apply for grants and navigate the complex technical requirements of these grants; more effective and efficient government and schools with money to recruit and retain better teachers and employees; an addition to the corpus of the Wyoming Wildlife Natural Resource Trust which continues to demonstrate its value to Wyoming farmers, ranchers, energy companies, visitors, wildlife, towns and counties; a challenge account to draw in private dollars to the Wildlife Trust; and more resources available for controlling invasive and noxious weeds and predators.

The governor did use his authority on several line item vetoes, objecting to several provisions and especially examples of “legislating from within the budget.”  

Governor Gordon also pointed to several areas that are potentially at odds with the Wyoming’s Constitution and need to be handled differently in the future. However, he did not veto these items.

Governor Gordon wrote:

  • “Recognizing that legislators are knowledgeable about the Constitution, I will take the 26 examples of the use of “shall” or “shall not” that are contrary to Article 4, Section 4 encompassed in this bill to be reasoned suggestions as I cannot imagine any legislator intentionally meant to infringe on the authority of the executive branch.  I have attached a list of the 26 examples. I imagine reviews of future budgets will avoid this sort of awkward vocabulary.”
  • “There are 29 footnotes with provisions that are unrelated to and not embracing an appropriation.  Since these are not tied to the budget or a specific appropriation the footnotes should be placed in single-subject bills and not included in the budget acts in the future.  I look forward to discussions with all of you about these matters and I strongly state my position so there will be a clear understanding that I will veto these footnotes containing this type of language in coming years.”

He focused his vetoes on 14 other areas which he explained in a detailed letter to the Legislature, which follows:

February 26, 2019

The Honorable Steve Harshman,

Speaker of the House,

Wyoming House of Representatives,

3001 East Pershing Boulevard,

Cheyenne, Wyoming 82001

Dear Speaker Harshman,

Let me begin by thanking you and the other members of the 65th Legislature of the state of Wyoming for your hard and diligent work over the past several weeks.  I want to offer my compliments to you and your colleagues for arriving at the supplemental appropriations bill you enrolled and delivered to me on February 22, 2019.  This bill sets a deft fiscal path for the coming year. I believe Wyoming’s residents will benefit from your efforts on this supplemental budget. In saying so, I recognize supplemental budgets are not meant to make enormous strides, but rather to adjust spending within the context of a broader budget passed in 2018.

Wyoming’s tradition of a biennial budget process is the envy of the nation and one I hope we never lose.  My office and I are eager to start work on preparing the next biennial budget — our first — for your consideration in November, 2019.  In it we hope to lay out a cogent path to the fiscal stability I spoke of at the beginning of this session in my State of the State.

There are several appropriations worth holding up to the public which reflect your diligence.  First, is the restraint shown with spending and the recognition that not all wants are needs. The thoughtful approach you took can be seen in some investments you made to move Wyoming forward while not overspending.

I congratulate you for seeing the wisdom in: a carbon capture pilot project through the University of Wyoming’s School of Energy Resources allowing Wyoming to continue to lead in developing new ways to use coal and reduce carbon emissions; additional tools to support local governments including dollars for planning by counties and a position to support locals as they apply for grants and navigate the complex technical requirements of these grants; more effective and efficient government and schools with money to recruit and retain better teachers and employees; an addition to the corpus of the Wyoming Wildlife Natural Resource Trust which continues to demonstrate its value to Wyoming farmers, ranchers, energy companies, visitors, wildlife, towns and counties; a challenge account to draw in private dollars to the Wildlife Trust, which will showcase the interest and support of industry and the public in the positive work of the Trust; and more resources available for controlling invasive and noxious weeds and predators.  These benefits to Wyoming’s agriculture, economy, wildlife, and open spaces are a boon to our state.

Knowing that this is my first year as Governor, I recognize there may be elements of recent custom reflected in this budget that are potentially at odds with the more prescribed nature of Wyoming’s Constitution.  Generally, I would like to address four concerns that relate to three provisions of the Wyoming Constitution: Article 3, Section 34 (General appropriation bills; other appropriation), Article 2, Section 1 (Powers of government divided into three departments), and Article 4, Section 4 (Powers and duties of the Governor generally).

1) My concerns arise when this act includes provisions that extend beyond “appropriations for the ordinary expenses” of State government when those create or amend substantive statutory laws that are wholly unrelated to and do not embrace “appropriations for the ordinary expenses” of State government.  Essentially, any provision which creates law through a footnote.

2) My concerns continue when provisions of this act create select committees or task forces or generally require agencies to study and provide reports to the Legislature on specific topics that are unrelated to and do not embrace an appropriation for the “ordinary expenses” of State government.

3) When this act directs the Governor or other agencies to request or not request specific funds in future budget cycles, taken literally, these directives could be construed to foreclose the Governor from using his or her office’s constitutional authorities found in Article 4, Section 4, which provide that the Governor shall “recommend such measures as he shall deem expedient.”

4) Where the act makes staffing and workforce/resource allocation decisions for the executive branch, these directives would seem to conflict with Article 2, Section 1.

In each of these examples, I am confident it was not the intent of the legislature to offend the Constitution but rather was simply a practice born of recent convention.  Accordingly, in reviewing this act, at this time, rather than adhering to the concept of “a bright red line,” I have sought to find a practicable approach which recognizes what I believe is the generous intent of the legislature to offer advice as well as the proper form of appropriation envisioned in Article 3, Section 34.  I do look forward to our upcoming budget efforts, wherein we might migrate to a more traditional approach.

Recognizing that legislators are knowledgeable about the Constitution, I will take the 26 examples of the use of “shall” or “shall not” that are contrary to Article 4, Section 4 encompassed in this bill to be reasoned suggestions as I cannot imagine any legislator intentionally meant to infringe on the authority of the executive branch.  I have attached a list of the 26 examples. I imagine reviews of future budgets will avoid this sort of awkward vocabulary.

Secondly, there are many instances in this act where the Legislature includes provisions or footnotes which are not related to the “ordinary expenses” of State government as required in Article 3, Section 34 of the State Constitution. The Constitution envisions single-topic pieces of legislation and where these footnotes appear to be more appropriate as their own bills, I have attempted in this review to be forbearing, objecting to only the most grievous examples of “legislating from within the budget.”

Moreover, I have sought to appreciate where the Legislature might desire additional transparency and accountability from agencies of the executive branch and thus have sought to concur with the reports or legislation where necessary.  But I do not agree that this practice is proper or should continue in future budget cycles. Where the Legislature’s intent can be accomplished by bringing separate, single-topic pieces of legislation or by asking for reports outside of the budget bill, my administration will comply.  I intend to have strong cooperation between our branches of government. That makes for good and transparent government.

I did take action in several instances, where absolutely needed.  There are 29 footnotes with provisions that are unrelated to and not embracing an appropriation.  Since these are not tied to the budget or a specific appropriation the footnotes should be placed in single-subject bills and not included in the budget acts in the future.  I look forward to discussions with all of you about these matters and I strongly state my position so there will be a clear understanding that I will veto these footnotes containing this type of language in coming years.

The line item vetoes are as follows:

Section 001 Footnote 8. Office of the Governor.

This provision is not related to the “ordinary expenses” of State government as required in Article 3, Section 34 of the State Constitution and should be a single-topic piece of legislation and not be included in an appropriations bill.  In fact, this was a single-subject piece of legislation that did not pass. However, I appreciate the concept and have interest in inflation-proofing permanent funds as does the Treasurer. Any work on this front will be done in coordination between the two offices and not in isolation.

Section 006 Footnote 3, Administration and Information.

Footnote 3 provides that the Department shall prepare standard procedures to complete a cost benefit analysis on all future State leases.  This provision fashions substantive law by creating new requirements that the Department must follow before entering into any new State lease.  As a result, this enactment is unrelated to and does not embrace appropriations for the “ordinary expenses” of State government as required in Article 3, Section 34 of the State Constitution.  Because these types of provisions are substantive lawmaking, they should be placed in single-subject bills and not included in the budget act. Nevertheless, I take your suggestion constructively and will bring this approach to the attention of the Department of Administration and Information and the State Building Commission which is already engaged in this approach.

Section 037, State Engineer.

The State Engineer’s Office is not requesting additional funding and is prepared to have one position eliminated, however this budget cuts two positions instead of one and there is a person currently in the other position.  I will not allow the State Engineer to use the empty position and plan to propose eliminating one position in the next budget. I must, however, preserve the one filled position otherwise there could be an unintended riff of an employee.

As this footnote is not related to the “ordinary expenses” of State government as required in Article 3, Section 34 of the State Constitution and should be a single-topic piece of legislation and not be included in an appropriations bill. That said, if a legislator would like to have a public meeting please ask, these are good conversations and a budget footnote is not needed.  I do commit to having the new State Engineer travel the state getting to know the public, gathering input and explaining the agency’s mission.

Section 045 Footnotes 4 & 5, Department of Transportation.

Footnote 4. This footnote raises a separation of powers issue because the Legislature, by specifically requiring the Commission to consult with one member of the Senate and one member of the House in selecting and negotiating the long-term contract arguably is controlling and managing the day-to-day operations of the executive branch — a practice that encroaches upon the inherent prerogatives of the executive branch.

Footnote 5. This provision is unrelated to an appropriation for the “ordinary expenses” of State Government because it is not tied to the budget or a specific appropriation — the provision instead requires the Department to retain a consultant to conduct a cost benefit analysis for the Department to report the findings to a legislative committee.  The subject and directives in this provision are beyond appropriations for “ordinary expenses” of State government and should be “made by [a] separate bill[s],

[each]

embracing but one subject.” Considering there was a separate bill contemplating the same intent that could not pass the Legislature I used my line item veto authority.

Section 085 Footnotes 1,3 & 4, Wyoming Business Council.

I acknowledge that there is much needed reform across the spectrum of economic development and have stated my intent to start a comprehensive review of our disparate efforts.  I understand that the motivation for several of these footnotes reflect frustrations with needed reforms. Accordingly, I take each of these suggestions as meaningful advice for the Business Council.  Still, specifically, I have vetoed the following footnotes:

Footnote 1 mandates additional marketing of Wyoming’s agricultural products in Asia; there is nearly $2 million available for this mission in the ENDOW account and I believe that is the right funding source.  My veto is based on legislative overreach into the affairs of the executive branch. Nevertheless, I recognize our economic diversification and economic development efforts must be better addressed and am committed to improving how the Business Council and ENDOW can better integrate and improve their endeavors in conjunction the state’s agricultural business community.

Footnote 3 withholds the use of certain monies appropriated for operations and for the Business Ready Community Program, an “ordinary expense[s]” of State government. The funds reserved are conditioned “upon further legislative action.”  Thus, as drafted, this restriction limits an appropriation already given. As such this footnote constitutes a violation of Article 2, Section 1 by infringing on the normal conduct of the executive branch.

This footnote further mandates a report which, while valuable, I have already begun to bring together. I take the suggestions as to the content of these reports to be helpful and respectfully submit that having an entity other than the Business Council report on how the state advances economic development might be more instructive.

Footnote 4 is too prescriptive and uses investment ready community funding in a manner which is outside of the normal process.  The goal of advancing the aerospace and defense industries is sound but the process is not, as marketing is not the only need of companies growing in this space.  The spending direction in this section of the budget bill is narrow in scope and overrides well-established processes for economic development by directly instructing the outcome.

Section 206 Footnote 5, Department of Education.

After consultation with, and upon the advice of, the State Superintendent, I saw several flaws with including this footnote in the budget act.  I appreciate the concept offered in establishing a pilot principal education program and appreciate the achievements of Sheridan County School District #2.  I believe school districts already have access to aspects of this program. I suggest that the Joint Education Committee consider this topic in the interim. Specifically, this footnote creates a significant disconnect to the collaborative and comprehensive Department of Education led process that has been developed during the past 4 years. It bypasses the multi-professional team which works on state and federally funded school support programs. Additionally, this footnote is inconsistent with the State Board of Education advisory process.

Section 313, Footnote 4, School Capital Construction.

This footnote is a provision that will help make our children safer in their schools.  I appreciate the intent and the language, which directs spending to maximize safety of students and staff and directs the Commission to consult with local districts to understand the facts on the ground.  I believe my line item veto clarifies that this consultation of local districts can happen and that the Commission will utilize its authority, which includes the priorities submitted; but does not limit spending to only the specified priorities.

Section 346, Wyoming’s Tomorrow Task Force.

This provision is not related to the “ordinary expenses” of State government as required in Article 3, Section 34 of the State Constitution and the creation of a task force should be done with a single-topic piece of legislation and should not be included in an appropriations bill.  In fact, this was a single-subject piece of legislation that did not pass. However, I appreciate the concept and it seems prudent to have the topics outlined in this footnote discussed in conjunction with the higher education study. I look forward to working with legislators to plan for the future of higher education in Wyoming.

Section 348, Flood Mitigation Public Facility Grant.

This provision is not related to the “ordinary expenses” of State government as required in Article 3, Section 34 of the State Constitution and should be a single-topic piece of legislation and not be included in an appropriations bill.  Additionally, the Abandoned Mine Land funding the State receives has been paid for years by the mining industry. It has well established guidelines for how it can be spent and a process for its allocation. While I agree that Bitter Creek is a deserving project, I am opposed to the precedent of including AML funding in the budget bill acts. As the project has not been vetted by the State Lands and Investment Board a letter from the Legislature noting your recommendation to the entire Board would be appreciated.

Section 351, Military Housing.

This project has been reviewed by both the Business Council’s Board of Directors and the State Lands and Investment Board, receiving $3 million in a Business Ready Community Grant and a $1.3 million loan. As I did elsewhere in the budget bill I have used my veto authority on provisions that go outside of the established process for economic development proposals. The project proponent should return to the Business Council with an updated proposal for subsequent review by the Board of Directors and the SLIB.

Section 352, Higher Education Study.

This provision is not related to the “ordinary expenses” of State government as required in Article 3, Section 34 of the State Constitution and should be a single-topic piece of legislation and not be included in an appropriations bill.  In fact, this was a single-subject piece of legislation that did not pass. However, I appreciate the concept and the need for improved interaction between UW and the community colleges, with a focus on how they serve the citizenry and industries of the state.  I fully plan to have robust and open discussions among these entities in the coming months.

As I have said on many occasions I will work to make the budgeting process more transparent and accessible to the public and to lawmakers.  My work on this starts now and I will have the next standard budget finished and to you at an earlier date in 2019. I hope lawmakers and citizens alike will gain from this additional time to review the proposed budget, and as the budget is being developed I hope to find ways to make information about spending requests and about revenue forecasts easy to access and  understand.

Sincerely,

Mark Gordon

Governor

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