Gov. Perdue, legislators still at odds over ferry tolls April 21, 2012 


Gov. Bev Perdue will readily comply with any new legislation that orders her to start collecting higher tolls on North Carolina ferries, her legal adviser says.

Mark A. Davis, the Democratic governor’s general counsel, said Perdue used power given her by state law when she announced a one-year moratorium on new ferry tolls that were ordered last year in the state budget. Davis disputed arguments by Republican legislative leaders and Attorney General Roy Cooper that Perdue acted illegally.

“We were not defying the law,” Davis said in an interview last week. “If they think we’re wrong, they can fix it. They can tell us they don’t like the moratorium and they want it ended. Or they can amend the statute.”

Republicans blasted the governor in February when she blocked the new tolls, and again this month when Cooper, a Democrat, endorsed opponents’ position. But some coastal legislators who approved the tolls are hearing more protest about them than they had expected from voters who will decide whether to re-elect them this year.

And as they prepare for a new legislative session in May, Republicans appear in no hurry to take action – a lawsuit or legislation – that might force Perdue’s Department of Transportation to start collecting the unpopular tolls right away.

Sen. Phil Berger, the Senate leader, said it was up to the governor now to drop her moratorium.

“They can rationalize through these explanations, but I think her argument is not with the General Assembly,” said Berger, a Rockingham County Republican. “Her argument is with the law. We have passed something she has a constitutional obligation to carry out.”

Two House Democrats – Reps. Tim Spear of Washington County and Bill Owens of Pasquotank County – voted for the budget last year after Republicans agreed to keep two ferries in their districts toll-free. At a House-Senate oversight committee meeting last week, Republicans from both chambers said they would consider a plea from Spear and Owens to postpone the other ferry toll changes for two years.

A committee vote is expected Monday.

Perdue cited economic hardship in ferry-dependent coastal communities when she blocked the new tolls. Spear and Owens did not defend the governor’s moratorium, but they echoed her concerns.

“We still have a severe economic impact from Hurricane Irene in Eastern North Carolina, and in these coastal counties that have been affected by it,” Spear said.

Rep. Phillip Frye, a Mitchell County Republican who co-chairs the oversight committee, expressed sympathy for residents who commute to work on two river ferries that would lose their toll-free status. He suggested that Perdue’s action to delay the new tolls could give the legislature time to rethink the best way to generate more revenue from ferry passengers.

“We just want to make sure we do this right,” Frye said in an interview.

Discretion or not

The budget enacted last year amended state law by ordering DOT to “establish tolls” for all but two of the state’s seven ferry routes. But it left intact language in the same statute that Perdue cites as her authority for delaying collection of the new tolls.

“There is a disconnect between what several legislators seem to think they enacted and what they did enact,” said Davis, the governor’s counsel. “They seem to think what they passed took away the discretion of the agency, and it didn’t.”

While the statute tells DOT where to “establish” tolls, Davis said, it still gives DOT the authority to “collect such tolls ... as may, in (DOT’s) discretion ... be expedient.”

Gerry Cohen, an attorney who oversees the staff that drafts legislation for the General Assembly, rejected Davis’s rationale.

He pointed to another section of the budget law that spells out the legislature’s revenue targets for the new tolls. That language explains that the budget “raises tolling on existing routes and adds tolls to two untolled routes” and increases toll revenues by $2 million in the fiscal year that ends June 30, and $2.5 million next year.

“That couldn’t happen if DOT somehow had discretion not to raise the tolls,” Cohen said. He interpreted the budget law as ordering DOT to collect the new tolls, and so did Cooper, the attorney general.

“It is our opinion that the state law as passed by the legislature must be followed,” Cooper said April 13, responding to Mitchell County’s Frye’s request for an opinion. “It was the legislature’s decision to collect tolls, and the legislature has the authority to remove them.”

Murky language

This isn’t the first time the General Assembly has squabbled with a governor over how to interpret murky legislative language. In 2004, the legislature added a line to the state budget directing then-Gov. Mike Easley to give “the land on which the Currituck County Airport is situated” to Currituck County for $1.

Easley transferred 205 acres, but legislators maintained that another 326 acres should have been included. Cooper’s office supported their argument, and Currituck County sued Easley to get the rest of the property.

But Easley won the argument. A judge ruled that the legislation was so vague that no one could tell what land was involved. Currituck County eventually got what it wanted after the legislature voted in 2005, using clearer language, to turn over all 531 acres.

Some of that clear language might have helped lawyers and political leaders avoid this standoff over new ferry tolls, said Norma Houston, who lectures on public law and government at the UNC School of Government in Chapel Hill.

“If they wanted to make their intentions crystal clear,” Houston said, legislators could have removed DOT’s discretion over toll collection when it ordered the new tolls. She previously served as counsel and chief of staff to former Sen. Marc Basnight, a Dare County Democrat who preceded Berger as the Senate president pro tem.

Houston said Cohen makes a good argument about the legislature’s intention to generate more toll revenue, but she also appreciates how Davis interprets Perdue’s discretion to collect – or not collect – the new tolls.

“You know, she might win on this one if she were challenged in court,” Houston said. “In my opinion now, it is not clear whether the governor exceeded her authority or not.”

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