Tuesday, February 11, 2014

The staff for no one — a legal analysis of who's in charge of Darr's Dead Wood

Posted By on Tue, Feb 11, 2014 at 7:03 AM

WHO MADE HIM KING: Sen. Lamoureux explains.
  • WHO MADE HIM KING: Sen. Lamoureux explains.
I appreciate the situation in which Sen. Michael Lamoureux finds himself. He's working to pass the most significant public policy measure in years. (And, by the way, where does ASA HUTCHINSON, would-be Republican governor, stand on the private option?)

He's agreeable and enjoys some appreciation on the Democratic side of the aisle.

But he blundered in taking it upon himself to save the dead-wood jobs of four Republican political hacks who are sucking $267,000 a year off the teat of Arkansas taxpayers for doing less than nothing. They had some nominal, if minor, toil when Mark Darr was lieutenant governor, but now that he's resigned they have none.

Lest you think I'm being too harsh, find a tape of last week's Arkansas Week in which Steve Brawner appeared. Brawner was on the staff of the office in 2006, when Win Paul Rockefeller died in July. He said the staff had some correspondence to clear up, but they soon had little to do for the final months of that term. An even longer period stretches for Darr's Dead Wood, led notably by a perennial public teat suckler, Bruce Campbell, whose son-in-law  happens to be co-chair of the Joint Budget Committee, Republican Duncan Baird.

Legislation has been introduced not to call a special election to fill the office this year. Fine. But if the office is valueless, a staff for a non-existent officeholder is even less valuable. 

The legislation to pre-empt the election must not be allowed to pass without companion budgeting that provides NO money for the office for the first six months of the fiscal year beginning July 1 and a dramatic reduction in the allotment for the remainder of this fiscal year. Six months' severance pay is a slap in the face to real working people of Arkansas.

It should be a public outrage that a Republican majority legislature that hates the minimum wage of $6.25 an hour; that resists the expansion of health insurance under Obamacare; that is talking about depriving transportation for the very poorest people to reach their primary care doctors; that hates meaningful workers compensation; that hates unemployment compensation is fighting to the bitter end to finance $267,000 worth of do-nothing jobs. GOPocrisy, I call it to pay $16 to $36 an hour and sweet state health insurance, plus lots of days off, for cronies while working poor suffer under their more-efficient-government policies.

UPDATE: Great editorial by Ernie Dumas in the Arkansas Leader on this same point.

The Arkansas Democrat Gazette, which would be demanding the dismissal of the four if they were Democrats, editorialized Friday that they needed to stay on the state payroll so they could answer the phone and letters and maintain the lieutenant governor’s archives. Say again! Who will be calling and writing the lieutenant governor now, and whom will they be calling and writing, and why? The lieutenant governor’s archive? Who knew Mark Darr kept an archive? Is he already compiling his papers for posterity, like Churchill? Did he not take that folder with him when he left?

This is not, as the governor said, retribution or meanness. The employees did nothing wrong, unless they actually did misguide their boss. But their work has disappeared and the taxpayers should not foot the bill. There are enough Republican officeholders who can take them in and give them something to do—and leave the world of government with a slightly better appearance. 

To get finally to the point: I asked Lamoureux a series of questions about the legal basis for his announcement that the lieutenant governor's staff would henceforth answer to him and that he intended to keep them on board for his needs. He provided a memorandum he'd been provided by one of his Senate employees, counsel Steve Cook. He chooses to follow it rather than the contrary legal advice of Attorney General Dustin McDaniel.

It follows FYI:

On the question “where does the Constitution make you President of the Senate”….

Before the adoption of Amendment 6 to the Arkansas Constitution, which created the office of the Lieutenant Governor, Article 5, Section 18 of the Constitution provided that the PRESIDING OFFICER of the Senate would be called THE PRESIDENT OF THE SENATE. In Section 5 of Amendment 6, the Lt. Governor is called the PRESIDENT OF THE SENATE and in that role presides over the Senate. The Senate, by rule, has designated its leader as the PRESIDENT PRO TEMPORE….which means “for the time being”. Note that the Constitution does not use the term PRO TEMPORE. Under Section 5 of Amendment 6, it states that if the Lt. Governor is impeached, displaced, RESIGNS, dies, or becomes incapable of performing the duties of the office and the Governor is vacant (out of state), the office of Governor shall be passed to THE PRESIDENT OF THE SENATE and if THE PRESIDENT OF THE SENATE is incapable of performing the duties, the Speaker of the House becomes Governor. As you can see, the Constitution still refers to the person who is the leader of the Senate as THE PRESIDENT OF THE SENATE in Amendment 6. When the Senate is in session, the PRESIDING OFFICER of the Senate is the Lt. Governor, who, while presiding is THE PRESIDENT OF THE SENATE. By Senate rule, we create the title of PRESIDENT PRO TEMPORE….who shall perform the duties of the PRESIDENT OF THE SENATE….DURING HIS ABSENCE. We have a permanent absence in the office of Lt. Governor…..the person who presides over the Senate and who is called the PRESIDENT OF THE SENATE when he is presiding. With such a permanent absence, the presiding officer of the Senate is Michael Lamoureux. Amendment 6 (Section 5) calls this person THE PRESIDENT OF THE SENATE.

In the case of Walls v. Hall, 202 Ark. 999 (1941), the Arkansas Supreme Court stated…..”Power and authority vested under the Constitution in the Governor, in case of absence from the state, devolves upon the Lieutenant Governor and if he is also absent, upon THE PRESIDENT OF THE SENATE (my emphasis), and in case of his absence, upon the Speaker of the House”. The Arkansas Supreme Court called the leader of the Senate the same title the Constitution calls this person in Amendment 6….THE PRESIDENT OF THE SENATE ….not the PRESIDENT PRO TEMPORE.

It can be argued that you are now THE PRESIDENT OF THE SENATE because that is what the leader of the Senate is called in the Constitution. At the very least one could make a persuasive argument that you are the ACTING PRESIDENT OF THE SENATE while the vacancy is in place. In this role one could argue that even though there is a large hole in the Constitution and there is nothing one can directly point to in the Constitution….you as the PRESIDING OFFICER of the Senate are filling the Constitutional job of Mr. Darr and can step into this constitutional vacuum and play a supervisory role of the present staff. A supervisory role means nothing more than checking on the staff and playing the role of letting the public know that that the staff is reporting for work and maintaining the office. In my opinion the present staff is very independent. They answer to nobody. You cannot fire them. There is nothing you or anyone else can do to them. You can “supervise” them….whatever that means to you and them. The only remedy to any staffing changes is a legislative response through the appropriation process. Until this happens, I would think that the public would like some official to fill this role. The Governor has no such authority nor does the Attorney General or any other state official. You, as Senate President, or acting Senate President, at least have a nexus to that office per the Constitution (better than anyone else) to “supervise” the staff…..which really has no legal meaning.


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