"Members of gaming panel face uncertain future" is the headline to Lesley Stedman Weidenbener's Sunday column in the Louisville Courier Journal. She writes:
Gov.-elect Mitch Daniels, who takes office tomorrow, said last week he expects that Hoosiers serving on state boards and commissions will resign — without his having to ask. That's thousands of people, serving on high-profile boards like the Indiana Utility Regulatory Commission and obscure ones like the Indiana Corn Marketing Council.A Dec. 4, 2004 Indiana Law Blog entry made a similar point. I wrote, near the end of the entry:If members don't tender their resignations, Daniels says he'll ask for them. Not all of them will be accepted, Daniels said. And in some cases, he's seeking to eliminate the boards anyway.
But there's one agency where the request is already causing some fireworks. Daniels wants members of the Indiana Gaming Commission — which oversees the state's 10 casinos and is contracting the operation of an 11th in French Lick — to resign so he can have his own appointees.
But unlike many of the state's boards, gaming commission members don't by law serve at the pleasure of the governor. That means the governor can't just remove members because he doesn't like them, or because he's found other people he'd rather have fill the spots.
State law specifically establishes four-year terms for members of the gaming commission and says they can be removed for the following reasons: neglect of duty, misfeasance, malfeasance or nonfeasance. Essentially, that means failing to follow state laws.
Contrast that with the law establishing the Indiana Utility Regulatory Commission. It says members "may be removed at any time by the governor for cause." It doesn't define cause, leaving the door wide open for a governor to use just about any reason to remove a member.
Looking at another "commission" for contrast with the gaming commission, the Indiana Utility Regulatory Commission (URC) (IC 8-1-1) has 5 full-time commissioners, no more than three of whom may be of the same party. The members of "shall be appointed by the governor from among persons nominated by the nominating committee in accordance with the provisions of IC 8-1-1.5." The members are appointed by the governor for four-year staggered terms, and "members may be removed at any time by the governor for cause." * * *To expand on that, the basic model in Indiana, as established by the Indiana Constitution, is that the Governor alone heads the executive branch, he/she appoints the people who heads the various agencies of government, and they serve "at the pleasure of the Governor."Essential, in my opinion, to any effective reorganziation of state government is assuring that the constitutional responsibilities of the governor: (1) in administering the executive branch of state government and (2) in taking care that the laws are faithfully executed, are adequately reflected in the statutory framework.
Over the years, there have been efforts to circumscribe the power of the Governor. This would seem to be an inevitable result of the dynamic tension between the executive and legislative branches of government.
The most notable occurred in 1941, when the General Assembly took away the power of the Governor to appoint the heads of most state agencies, distributing the authority instead among other state elected officials such as the Auditor, Treasurer, Secretary of State and Lieutenant Governor (who was separately elected under the constitutional provisions then in force). In a 1941 decision called Tucker v. State, the Supreme Court threw out the challenged statutes. Tucker and subsequent decisions define the role of the governor and prohibit the Indiana general assembly from encroaching upon the executive branch of state government by (1) appointing its own members to perform executive functions or (2) by enacting laws that dilute the powers of the governor.
In the 60-plus years since Tucker, however, the General Assembly has tried out a number of variations on the basic model, aimed at sharing the Governor's executive power, or limiting it.
The most recent example of an effort at both is found in the Indiana Economic Development Commission (IEDC) law, as originally drafted in 2003. The IEDC was to be headed by the Lieutenant Governor and run by a 23 member board, with twelve board members to be appointed by the General Assembly, and a number of others to be appointed by state university heads. The Governor was given three appointments.
Many of the problems with the IEDC were corected in the 2004 session of the General Assembly, and additional changes are being made this year. (See the ILB entry, "Economic Development and the Indiana Governor," from May 17, 2004.)
Rather than directly removing the Governor's appointment powers, many laws try to circumscribe it. Here are some of the ways this has been done, in no particular order. Some of these examples, either clearly or arguably, limit a governor's authority in making appointments, or otherwise dilute his/her right to select his own people, or dilute the powers of a governor.
Readers may be able to provide other examples. There is currently much variation in the law. The question is - how far, if at all, may the Governor's appointive power be circumscribed without running afoul of the Indiana Constitution?Requiring that the Governor make his selection from people nominated by a panel, or from recommendations made by the General Assembly, or from nominees submitted by a university or a trade group. By provisions that set a fixed term for an appointment, rather than service "at the pleasure of the Governor." By provisions that provide that the appointee may only be removed by the Governor "for cause" or for certain described reasons (thereby defining "for cause" -- the gaming commission is an example).
[More] This morning's Indianapolis Star has a front-page story by Kevin Corcoran headlined "Kernan rejects request to seek resignations: Daniels' aides sought predecessor's help replacing members on boards, commissions." Some quotes:
"I anticipate asking members of boards of all kinds to tender resignations," said Daniels, who will be sworn into office today. "We think that would be appropriate in the case of very important policymaking bodies. We'd like to be able to change these bodies, just like the rest of state government.Perhaps. The story goes on to report:"We hope that current appointees will do the right thing and at least tender those resignations," he said. "Not all will be accepted. I think that if I were a board member under these circumstances, I would offer up my resignation."
Even if Daniels asks, however, nothing in state law requires members of these boards and commissions to comply. Most state boards and commissions involve fixed terms. The new governor can't fire members if their terms aren't up.
Kernan filled vacancies on full- and part-time state boards and commissions at an unprecedented pace last year, meaning his influence over state government could continue for some time. In all, Kernan appointed and reappointed 1,242 people to more than 300 boards and commissions, Kernan spokeswoman Lisa Sirkin said.Posted by Marcia Oddi at January 10, 2005 07:24 AMThe total number of people serving on state boards and commissions is 2,428. Under state law, these board and commission members generally serve terms that overlap those of the state's governors to ensure some continuity. Kernan did not want to disrupt this pattern.