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.
1 comment:
I must quarrel with you. Local governments should NOT BE MADE to achieve state objectives.
Also, I see where Commissioner Kristy Nicholls has publicly asked where to spend one-time (non-recurring) money if not in the general operating budget.
Do these people think we are all idiots to be manipulated?
A simple suggestion for Ms. Nicholls: READ THE CONSTITUTION, which clearly sets forth where such monies can be spent.
Opps, I forgot. That's right; they don't have to follow the Constitution when they disagree with it. Sorry.
(By the way: How's that working for them in Court these days.)
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