Consider this scenario: An entity seeks support from Gov. Paul LePage’s administration. The governor believes in its mission. The entity seeks — and receives — taxpayer support, cheered on by Gov. Paul LePage. But later, seeing certain decisions this entity makes, the governor loses confidence in it and stops future taxpayer funding.
Is the entity Good Will-Hinckley’s public charter school? Or the Nova Star Cruise Line?
As the Government Oversight Committee concludes its improvident and unnecessary inquiry into the Mark Eves affair, some call for the Legislature to do something to the governor, while others state there is no impropriety in considering withholding purely discretionary funds and thus nothing to be done.
If you believe the governor’s decision to withhold discretionary funding from Good Will-Hinckley was driven by personal animosity toward Eves, you are probably calling for impeachment. If you think the funds were withheld as retribution for the speaker’s defiance of LePage’s legislative agenda, you likely want to see the governor punished.
Meanwhile, if you believe Eves, an outspoken critic of charter schools, would never have been hired by the nonprofit if his resume didn’t read “speaker of the house,” and that the case involves only the exercise of discretion, you presumably think this matter should be at an end.
The real question is whether the money at issue was subject to the administration’s discretion. The answer to that question informs the legitimacy of the governor’s actions. How can it be grounds even to mention impeachment for a governor to do or fail to do something that is expressly discretionary? From all the information available, the funds were discretionary. This comports with the reports given by senior officials, where the governor sought to withhold funds “not legally required.” This brings us back to the Nova Star parallel.
When the re-establishment of ferry service between Maine and Nova Scotia first arose, LePage was a prominent supporter. At the conclusion of the first year of the ferry’s operation, he was prepared to continue supporting taxpayer assistance. But as more details came to light and it became clear the venture was sinking, the governor reconsidered. Despite his earlier support, he did not commit discretionary funds available to him and refused to submit legislation on the company’s behalf.
While Canadian partners and the Nova Star itself were not happy with this reversal, no one believed for a moment this was beyond the scope of LePage’s authority. Nor did anyone question it as an abuse: the state’s chief executive made a decision based upon his judgment and the information available. So why is Good Will-Hinckley different?
The major variable is Eves. But it can’t be that he is a prominent Democrat, as the governor worked closely with former Speaker Glenn Cummings when he was president of the organization and with Portland Mayor-elect Ethan Strimling at LearningWorks. Some claim that the governor’s motivation was personal animus, retribution or a desire to prevent Eves from working. Those arguments must fail. If that’s true, why did the administration never threaten state funding for Sweetser, Eves’ former employer? Why wait until he was offered a job by Good Will-Hinckley to attack the speaker’s livelihood?
What then was the motivation? The only explanation that stands is the original one offered: LePage did not believe Eves was qualified to lead the organization. People have rightly noted the governor does not get a vote on leadership of private institutions. Private organizations can make decisions without government interference, but not necessarily with government support.
When private organizations ask for taxpayer money, it behooves public officials, acting in the public interest, to scrutinize their decisions. Such exercises of discretion enjoy near absolute deference.
LePage believed Nova Star was failing and refused to continue supporting it. He lost confidence in the leadership of Good Will-Hinckley and said he would no longer support it.
People are free to disagree with those opinions. But the remedy for legislators who disagree with a governor’s opinion on a matter of pure discretion is not impeachment, it is lawmaking — they could have directly appropriated funds to the school. Should future legislatures try to impeach every governor with whom they disagree on matters of discretion?
The remedy for Eves as a private individual is different, as we watch him pursue his meritless federal civil rights lawsuit against LePage, despite having received some $30,000 when Good Will-Hinckley terminated his contract. If I were the governor’s lawyer, I would immediately demand they dismiss the case. Eves is fortunate litigation provides cover for libel.
Bryan M. Dench of Falmouth has been in private practice of law in Maine since 1975.