What happens when a governor issues an executive order but doesn’t let anyone in state government — or the public — know of its existence? Since there can’t be a secret regime on the second floor of the Maine State House, the answer should be that those orders are invalid.
Regarding executive orders, state law says: “The governor shall maintain in his office a file containing a copy of every executive order issued by him or by previous governors, which is currently in effect. This file shall be open to public inspection at reasonable hours.”
In addition, “a copy of every executive order must be filed with the Legislative Council and the Law and Legislative Reference Library, and the executive order must be posted in a conspicuous location on the state’s publicly accessible website, within one week after the governor has issued that order.”
According to Gov. Paul LePage spokeswoman Adrienne Bennett, the governor issued seven executive orders between February and April, but none were posted on the governor’s website. Similarly, the Legislative Council and Law and Legislative Reference Library didn’t receive copies as prescribed by state law.
Bennett earlier this week called this an “oversight.” The orders were posted on the Governor’s Office website on Tuesday. The Legislative Council and library received the orders Wednesday, months — not a week — after the governor issued them.
This is a clear violation of state law. But since there are no sanctions outlined in the law, it appears there are no consequences for this violation.
“I don’t know the consequences or the validity of the orders,” said Grant Pennoyer, executive director of the Legislature.
Just as the governor can’t set his own timetable for vetoing bills, he can’t ignore the process established in state law for issuing executive orders. Democratic government requires transparency, which is in short supply in the LePage administration. Just as school boards and selectmen can’t meet — or make decisions — without notifying the public and meeting in public session, a governor can’t order the creation of review panels or change state policies without letting the public know. That’s the reason state law requires that executive orders be shared with the Legislature and posted online within a week.
Media attention over the secretly issued executive orders has focused on an April order establishing a committee to investigate the Maine Human Rights Commission, after it refused to heed a request from LePage to reopen a case involving Moody’s Diner in Waldoboro. The commission’s director, Amy Sneirson, learned of the review panel in August, months after LePage ordered its creation. The investigation still has not begun, and it’s questionable whether the order is even valid.
Six other orders are in the same situation. One rescinds a 2011 order calling for cooperation and communication with the state’s tribes. Another rescinds previous orders regarding chemical use. In February, LePage created a civil service review panel to “modernize employment practices” and exempted it from the state’s open records laws. Another February order says that state employees can be fired for accessing pornography using state resources. An April order creates a State Emergency Response Team, and a March order adds a representative of the governor’s office to the Governor’s Select Committee on Judicial Appointments.
The governor has great leeway to change policy through executive orders. But he can’t do it in secret, and he can’t simply ignore a law he took an oath to uphold and expect his actions to carry legal weight. That’s why this “oversight” is so egregious and requires more than just belated online posting of executive orders issued months ago.
