SADOW: Nevers’ Bill Plays Around With Constitutional Roles Of Government

While on the surface a constitutional amendment to prohibit foisting unfunded mandates onto all local governments in Louisiana may sound appealing, it’s better public policy not to hamstring state policy-making in this fashion.

Currently, the Louisiana Constitution prohibits the state from saddling local governments from certain kinds of these unless the local government approves and it is willing to pay for them. However, a number of exceptions exist, separated by school districts and all others; for examples of the latter, increased pension contributions to pay off the state’s unfunded accrued liabilities may be passed along because the Constitution applies this part only to legislation passed essentially after 1991, and the amendment to pay down the UAL became part of the Constitution in 1989. Other civil service legal changes that affect local governments also are exempted regardless of date enacted, and there are several others.

School districts get a different set of exemptions; for example, if an unfunded mandate comes down, as often happens, the Minimum Foundation Program does not have to pay for it. Also included is anything having to do with implementing accountability, if there is a cost increase, and there are several others. This part of the Constitution applies for matters passed essentially only after 2006.

However, state Sen. Ben Nevers has proposed with SB 22 an amendment not only to extend the protection to all government units at the local level, but to eliminate all but two exceptions, of legal instruments affecting school districts essentially after 2006 and for all other units those essentially after 1991. Among other things, it would allow local governments to request the Legislature to pass laws to their benefit and then pay for them and prevent the Legislature from using the escape hatch to the current restriction, a two-thirds vote to override the inability to force an unfunded mandate.

A limited ability to shunt away unfunded mandates is a useful thing to have. By having these restrictions along with the supermajority vote to override, this requires the Legislature to consider carefully the wisdom of new laws and executive branch agencies the same in regards to regulations (these, unlike with the Legislature, do not have an override procedure to impose them, meaning they would have to petition the Legislature to make them laws). It stops state policy-makers from unthinkingly chipping away at local government resources regarding the less-important areas of policy that do not feature important statewide objectives. Ultimately, it encourages better policy-making from the state.

But we cannot forget the nature and purposes of local government relative to the state. This is conditioned by Dillon’s Rule, affirmed nearly a century-and-a-half ago and reaffirmed since, that local governments serve as objects of state policy. Unlike the U.S. Constitution, which grants limited sovereignty to states, state constitutions are not designed to convey the same to local government. Instead, the state acts as the principal, making policy towards its ends, while local governments serve as the agent, implementing that policy. The relationship does not change even when a state (as can Louisiana) may grant home rule powers to certain jurisdictions.

Thus, the state must retain wide latitude in its ability to enact policy through the use of its instruments, local governments. If this means having the option to have them pay costs of state actions, after careful deliberation as evidenced additionally by the present supermajority requirement to override, so be it. If enough of the people object, the political solution remains available: petition policy-makers to prevent or to reverse forcing an unfunded mandate, and if that does not succeed, vote them or those who appoint them out of office and replace them with compliant policy-makers.

The suggested amendment loses sight of this basic fact that local governments are creatures of the state, made to achieve state objectives. It would give local governments an autonomy that belies their very purpose and could be used as a tool to thwart the very purpose of the state as a governing instrument in our system of government. For example, in reference to schools educational reforms and to other local governments pension reforms would become more difficult to achieve (although Nevers has indicated he might tinker with elimination of the civil service exemption in another bill filing). Or, if the state’s policy-makers perceive that generally local governments are not operating efficiently and not setting priorities properly, this amendment would take away a tool the state could use to force them to work better.

Optimal governance requires understanding the roles that the various parts of a governing system play. This amendment forgets that, producing no good reason to put it into the Constitution.



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