State Politics

Roy Cooper threatens to sue as legislature moves to secure more power

Legislative Republicans clashed fiercely with Gov.-elect Roy Cooper Thursday as the House and Senate voted to sharply limit his appointment powers – and Cooper vowed to sue them over any law he deems unconstitutional.

The legislature is holding a hastily called special session to restructure many aspects of state government after Cooper, the state’s attorney general and a Democrat, defeated Republican Gov. Pat McCrory in November. Thursday’s action featured party-line votes, hundreds of protesters and about 20 arrests.

Final votes on the most controversial bills are scheduled for Friday, when the legislature could adjourn for the year. Then the bills would go to McCrory, who hasn’t said if he’ll sign or veto them before he leaves office at the end of the month.

Responding to the General Assembly’s actions in a news conference Thursday morning, Cooper said it’s time for lawmakers to go home.

“Major changes in the way state government operates should be done deliberately, with input from all parties, particularly something as important as elections and making sure people have the opportunity to vote,” Cooper said. “They shouldn’t be pushed through in the dark of night.”

A bill that passed the House Thursday calls for making Cooper’s Cabinet appointments subject to approval by the state Senate and drastically cutting the number of state employees the governor can hire and fire. The Senate approved a bill that would evenly split election boards between the political parties rather than keep them under control of the governor’s party.

“Most people might think that this is a partisan power grab. But this is more ominous,” Cooper told reporters.

Republicans defended the moves, arguing that governors have amassed too much power that should instead belong to the legislature.

Rep. Jeff Collins, a Rocky Mount Republican, dismissed criticism from former Govs. Jim Hunt and Jim Martin, who he said persuaded the legislature to give them more authority decades ago. He said the current power balance in state government is “way out of kilter.”

Collins said the legislature should have more power because its members are more accountable to citizens than the governor. “They don’t get to see the governor pumping gas in Rocky Mount,” he said. “Our legislators are the closest state officials to the electorate. I think anything we can do to balance the scales back in that direction is a good move.”

Many legislators, including Collins, were elected from districts drawn to strongly favor one political party, and many of the current legislative districts were recently struck down by a federal court as unconstitutional racial gerrymanders. The court has ordered the General Assembly to redraw the districts and hold special elections in 2017.

Cooper said he’s willing to compromise with the legislature. He mentioned the possibility of using incentives to keep people employed who are losing jobs at factories in Senate leader Phil Berger’s district, including the Ball Corp. beverage packaging factory in Reidsville and the MillerCoors plant in Eden.

He tied the session to a frequent target, House Bill 2, saying that trying to force proposals through quickly and without debate is how the state ended up with HB2, the law limiting anti-discrimination protections for LGBT people.

So much has been proposed in the special session so quickly, Cooper said, that he hasn’t had time to read it all.

“It’s time for them to go home,” he said. “It’s time for us to get ready for the long session,” the legislative session that starts next month.

Democrats in the legislature said they’ve been deluged with calls and emails protesting the special session. Rep. Philip Lehman, a Durham Democrat, said he’s heard from about 3,000 people.

“People feel that they were not given notice, that these bills were not given due process,” Lehman said. “It has all the appearance of a vendetta against a newly elected governor.”

Cooper declined to say if he thought the session itself was unconstitutional – as some Democratic legislators had said – but he said lawyers are looking over every bill that was introduced. And he promised to challenge any law that appears unconstitutional.

“They will see me in court,” he said. “And they don’t have a very good track record there.”

Press Millen is a Raleigh lawyer who has studied the state Constitution and has used it to argue against some of the election law changes adopted by the General Assembly in 2013. He says opponents of the legislature’s moves could have a strong case in court.

“The state Constitution is a little-read and less understood document,” Millen said Thursday. “In my view, it contains a lot of landmines for a legislature that seems bent on reconfiguring 250 years of North Carolina governance kind of by personal pique.

“It’s going to have ramifications beyond what they’re considering. Typically, when you see laws being made, they’re deliberated more extensively, then tweaked and deliberated again.”

One of the special session bills, a proposal to limit Cooper’s appointment powers, passed the House Thursday evening in a 70-36 vote along party lines, despite objections from a state employees’ group and Democrats.

House Bill 17 would make the governor’s Cabinet appointments subject to approval by the state Senate and cut his ability to appoint members to UNC schools’ boards of trustees.

Another provision would cut the number of employees who serve at the governor’s pleasure from 1,500 to 300, reversing an expansion that legislators approved for McCrory at the start of his term. It would prevent the governor from having any such employees in the state’s budget office and human resources office.

“We have worked to modernize state government and the high number of exemptions, not used by the current governor, are being restored to a number and level that is consistent with the authority granted to past administrations,” said House Rules Chairman David Lewis, who sponsored the bill.

The 300-employee cap is less than the 400 state workers that served at the governor’s pleasure under Democratic Gov. Bev Perdue. And McCrory has actually used much of his current appointment power, with about 1,400 positions currently designated as exempt from civil service protections.

Michael Byrne, a state personnel law attorney who spoke during the public hearing, said the change in exempt positions goes too far.

“For principles of sound personnel administration, whether the person is a Democrat or Republican, the governor needs sufficient people who report to him or her to support his or her agenda,” Byrne said. “I submit that 600 is a more reasonable number – 1,500 was frankly too many.”

The State Employees Association of North Carolina, or SEANC, is also opposing the bill. The group’s lobbyist said the legislature shouldn’t strip the governor’s powers to appoint employees at the Office of State Human Resources.

“I think it would be terrible precedent and have disastrous consequences for employees,” Ardis Watkins told House members at the public hearing. “The employees rely on the governor to appoint (HR leaders).They can hold that governor accountable.”

Rep. Darren Jackson, a Knightdale Democrat, said he’s particularly concerned about a provision in the bill that could reclassify workers who serve at the governor’s pleasure to career state employees.

“Technically, (McCrory) could appoint someone in one of these jobs today and they could serve until the end of the year, and then they’re treated as a career state employees,” Jackson said.

Jackson also said the GOP’s plan for Cooper’s cabinet appointees to face Senate confirmation is confusing. Cooper takes office on Jan. 1, but the legislature won’t return to Raleigh for several weeks after that – so would appointees tentatively take office or would agency leadership posts stay vacant for weeks?

“Unfortunately a lot of things, we were told by staff, are not addressed in the bill and are subject to legal opinions down the road,” he said.

Lewis defended the proposed Senate confirmation process, noting that the state constitution specifically allows it, but legislators ended the practice years ago. He said the process would help the legislature “work with and communicate with the governor and the governor’s cabinet selections.”

HB17 also strips the governor of the ability to appoint members to the UNC system schools’ boards of trustees. Currently, the governor appoints two of the up to 30 board of trustees members at each of the UNC system’s 17 campuses. Under the bill, the House speaker and the Senate leader would each get one more appointment to each board.

The bill includes a number of changes to education oversight authority, shifting more power to the superintendent of public instruction. Starting in January, that position will be held by Republican Mark Johnson, who defeated longtime incumbent Democrat June Atkinson in November’s election.

One provision transfers administration of public schools and the state Department of Public Instruction from the State Board of Education to the state schools superintendent.

HB17 now heads to the Senate, where it will likely get a vote on Friday. McCrory’s office has not responded to questions about whether he’d sign the bill before leaving office.

Colin Campbell: 919-829-4698, @RaleighReporter

What happened Thursday

▪ Senate Bill 4: The Elections and Ethics Enforcement Act concerns elections, ethics and lobbying oversight, appellate court and the Industrial Commission. It passed two Senate committees and was approved by the full chamber along party lines. The bill was sent to the House.

▪ House Bill 17: Limits the power of appointments that the governor has. Requires the legislature approve the governor’s Cabinet officials. The bill includes several education provisions, including transferring the administration of public schools and the state Department of Public Instruction from the State Board of Education to the state schools superintendent. The bill cleared a committee and was sent to the floor, where it passed after lengthy debate.

▪ Both chambers named Andrew Conrad and Andrew Heath as a special superior court judges assigned to business court. Heath was Gov. Pat McCrory’s budget director.

▪ House Bill 10: Clarifies the state has a duty to maintain roads leading to public schools, including charter schools. Was approved in the appropriations and transportation committees, and is waiting for a floor vote.

▪ House Bill 12: School boards could set the opening date for schools to coincide with the opening date of a community college serving their city or county. The bill has been referred to the House Rules Committee.

▪ House Bill 13: Eases upcoming changes in school class sizes that were made in this year’s state budget. It cleared the House Education Committee.

What happens Friday

Bills that originated in the one chamber and were approved could be taken up by the other chamber. The Senate has scheduled committee meetings in the morning to take up HB17. The General Assembly could adjourn the special session. It is scheduled to convene its long session Jan. 25.

Craig Jarvis: 919-829-4576, @CraigJ_NandO

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