Jim Gibbons vs. Legislature

Gov. Jim Gibbons, removed as administrator of the federal stimulus funds headed for Nevada, last week tried to deal himself back in.

On Aug. 3, Republican Gibbons asked the Nevada Interim Finance Committee, one of two bodies that handle legislative business while the full Legislature is out of session, for permission to create a new job in the governor’s office to administer the stimulus. It would have paid $122,000. On a party-line vote, the IFC put the post in the state controller’s office and lowered the pay to a range of $60,000 to $90,000. The state controller, like the governor, is an executive branch officer.

Some officials suspected that Gibbons might sue to get the position in his office, but he went even further—on Aug. 14 he issued an executive order supposedly putting his original proposal to the legislators in place without their permission. He said he was acting under the authority of the federal American Recovery and Reinvestment Act of 2009 (ARRA), better known as the stimulus program. He said its language makes reference to state governors. He also cited the Nevada Constitution.

Gibbons all but dared the lawmakers to take him to court: “Let them sue me.” He was contemptuous of the IFC: “Their only job when they’re in this Interim Finance Committee is to sign and approve checks.” (In fact, IFC or other legislative officials do not sign checks—the state controller does.)

“Last week, I submitted a work program to the Legislature Interim Finance Committee detailing the need for a director and the appropriate support for that position,” the governor said. “The IFC created a convoluted reporting procedure. The IFC ignored the need to expand and implement our use of ARRA funds. … To accomplish that end we need much more than someone just simply reporting the use of ARRA funding.”

But State Controller Kim Wallin, while saying she would work cooperatively with the governor and his staff, said her function is far wider than the governor characterized it. She said her office will assist and coach state agencies on how to obtain federal grants and work with them on accounting and federal reporting requirements. She said she will proceed to do the job assigned her by the IFC.

Gibbons said, “There is no authority in the controller to give direction to any state agency.”

Wallin said the governor doesn’t understand how the process works.

Gibbons seemed to be ordering state agencies under his control not to cooperate with the controller. His order to state agencies says that the ARRA director in his office shall “serve as the single point of contact in Nevada relating to the ARRA, track grants and awards and ensure timely and compliant reporting by executive branch ARRA recipients.”

To make his case against the lawmakers, Gibbons adopted stances he has never taken before—pitting the federal government against the state with himself on the side of the feds and describing the stimulus package as the work of the angels.

“That funding is going to put Nevada back to work and jump-start the economy of the state of Nevada,” the governor said of the federal stimulus money.

“The federal law supersedes state law, in this case,” he said.

Gibbons never explained what was “convoluted” about putting the position in the controller’s office instead of across the hall in the governor’s office, but he used the term repeatedly.

“It’s not a convoluted process,” Wallin said. “They [legislators] haven’t slowed it down one bit.”

She said she has been meeting and working with state budget and agency officials all along, so it’s not like she needs to create a whole new operation, nor will there be any delay in distributing funds.

Gibbons’ staff sent material on his extraordinary action to Attorney General Catherine Cortez Masto but decided not to wait for her advice on whether he was acting legally. The material was sent to the attorney general two days before the governor issued his order.

Gibbons accused the IFC of violating the open meeting law and said he was prepared to defend in court the establishment of the stimulus position within his office instead of the controller’s by taking the Interim Finance Committee itself down.

“The constitutionality of the IFC has been in question from the day it was created,” Gibbons said in a prepared statement. “If the Legislature decides to use taxpayer dollars to sue me, they will have to prove the constitutionality of the IFC. I don’t think it can be done.”

Gibbons could be on fairly solid ground if he took on the IFC in court.

In 1969, after a decade in which four lengthy special sessions were required, the Legislative Commission and the Interim Finance Committee were created to deal with legislative business when the lawmakers were not in session. As a result, the number of special sessions of the legislature declined, and when they did happen, they were brief.

There have long been questions about whether a body smaller than the Legislature itself, which represents all districts in the state, can allocate public funds while representing only certain districts. IFC is made up of the memberships of the two legislative houses’ budget committees.

In the 1980s, Andrew Grose—then director of the Nevada Legislative Counsel Bureau, the staff arm of the Legislature—was asked if he thought the Legislative Commission and Interim Finance Committee could withstand a court challenge. “It would be tough for Interim Finance,” he said, “because they hand out money.” In 1982, former Clark County district attorney George Franklin ran for state attorney general with the announced intention of issuing a formal legal opinion holding the IFC unconstitutional. On one occasion, a mention of the IFC was put into a legislative-proposed ballot measure, which would have given it stronger legal standing, but the measure was defeated.

If Gibbons succeeded in overturning the existence of the IFC, it would change the structure of state government, cause more special sessions, and enhance his own authority since special sessions can only act on matters put before them by the governor.

One GOP legislator said, “I don’t support the position the Democrats on IFC took [empowering the state controller], but it’s not that far out of the mainstream. There is a lot of nervousness about the governor on budget matters. He didn’t—before he became governor—he had no budget experience, and two legislatures of budget writing has not really improved things. The vetoes showed some detachment from money matters.”

During the news conference when he announced his order, the governor frequently deferred on administrative and fiscal matters to state budget director Andrew Clinger, his chief of staff, Robin Reedy, and even his deputy chief of staff, Stacy Woodbury.

Asked if Gibbons’ fiscal aides like Clinger could make up for the governor’s lack of budget experience, the Republican legislator said, “Absolutely. Andrew is very good at what he does. Will he be there in a year?” There has been heavy turnover among the governor’s staff and agency chiefs.

Some legislators also believe the governor is not to be relied on in stimulus matters because he was against the stimulus before he was for it.

In February and March, Gibbons spoke of rejecting stimulus funding and when he said he might turn back federal money for extended jobless pay, U.S. House members Shelley Berkley and Dina Titus took him to task. He responded that they were willing to “bow down to the federal government and give up its own state sovereignty in a mad grab to claim every last penny of stimulus dollars. … As it is, these two [Berkley and Titus] are now griping about an unemployment program that doesn’t have federal strings attached; it has federal chains attached. I will not sell out our state’s sovereignty.” Gibbons, while saying he might not accept the stimulus money, also said Nevada was not getting enough of it. He eventually agreed to take the funds.

State legislators long ago set up procedures for their oversight of federal funds because of disputes in the 1960s when Gov. Grant Sawyer’s administration used federal money to set up programs not authorized by the legislature. By the time the lawmakers came back into formal session, programs were already up and running with their own constituencies, and the legislators had never had any say about whether the programs should exist in the first place.