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Yes, the precedent exists, but not the way the governor claims

Tuesday, Jun 30, 2015

* From Gov. Bruce Rauner’s e-mail to state employees yesterday

Our lawyers are working hard to ensure that all employees will be paid on their scheduled pay dates. The precedent already exists. This is the right thing to do and I will work with union leaders to fight any legal attempts to overturn existing precedent.

* But take a look at this summary of AFSCME’s 2007 suit to force the state to make payroll. It was posted by the SJ-R back in the day. Click here or on the pic for a larger version…

“The Agreed Order was not precedent for any other lawsuit, issue or claim.”

Indeed, as I recall, the Christian County judge told the union not to come back to him ever again. And two years later, in 2009, when AFSCME tried again to force the state to issue pay checks, it did so in St. Clair County.

* The issue in 2007 was the state’s problems complying with the federal Fair Labor Standards Act. Comptroller Dan Hynes and the union argued that state agencies simply did not have the time to figure out who was eligible to receive federal minimum wages under the FLSA.

In 2009, Comptroller Hynes issued a memo to all state agency fiscal officers telling them that they needed to make contingency preparations in case appropriations weren’t approved. The governor’s office balked because of this particular language

In addition to the traditional certification required by Section 9.03 of the State Finance Act (30 ILCS 105/9.03), the Office of the Comptroller will require additional certification to accompany each FLSA payroll voucher certifying that lawful expenditure authority for the voucher exists in the absence of appropriations. The certification shall be signed and dated by the agency’s chief executive officer, the chief legal counsel, and the chief fiscal officer. The certification shall be as follows:

    “I certify, based upon review of applicable law and facts, that lawful expenditure authority exists for the attached voucher(s).”

This additional certification will ensure the proper identification and timely processing of lawful payments. Please be reminded that knowingly and intentionally executing a false certification under Section 9.03 of the State Finance Act shall result in removal from office if done by an officer or discharge if done by an employee (30 ILCS 105/9.06). [Emphasis added.]

The suit was rendered moot when the budget was passed.

* This time around, Attorney General Madigan warned the administration that it needed to start working on this certification process. That warning tipped the governor’s office that Madigan was prepared to oppose AFSCME’s suit like she did in 2009. And that resulted in Rauner’s e-mail yesterday standing in solidarity with AFSCME.

* But that’s pretty much just pure posturing. From the Illinois Constitution

The General Assembly by law shall make appropriations for all expenditures of public funds by the State. […]

The State… shall incur obligations for payment or make payments from public funds only as authorized by law or ordinance.

Yesterday’s announcement by AG Madigan that she would oppose AFSCME’s suit also included this precedent that strongly argues against the governor’s stance

The Illinois Appellate Court has specifically addressed the issue of whether the State can pay employees in the absence of a budget. During the budget impasse in 1991, a number of State employee unions sued the Comptroller and asked the court to issue an order compelling the Comptroller to issue paychecks due on July 15. In AFSCME v. Netsch, 216 III. App. 3d 566, 568 (4th Dist. 1991), the court held that the Comptroller could not pay State employees in the absence of an appropriation and “any attempt by the comptroller to issue the funds in the absence of an appropriation bill signed into law by the governor would create obvious problems under the separation-of-powers doctrine.” The Netsch court determined that an appropriation was necessary “to prevent government operations from being brought to a complete stop.” Id. at 568-69 (citing People ex rel. Kirk v. Lindberg, 59 III. 2d 38, 42-43 (1974)).

…Adding… A commenter pointed to a Daily Herald editorial posted here in 2007

Budget? We ain’t got no budget. We don’t need no budget.

That, with all apologies to the Treasure of the Sierra Madre, sums up Gov. Rod Blagojevich’s view on whether state spending should continue even though Illinois has no budget.

On Tuesday, Blagojevich suggested state Comptroller Dan Hynes keep writing checks regardless of the budget situation, saying the state continues to collect money and it should all work out in the end.

“Refusing to pay state employees for their hard work is tantamount to shutting state government down,” Blagojevich said in a letter to Hynes.

You gotta wonder where the Rauner-leaning editorial boards are gonna land on this one. I’m figuring they’ll just ignore the whole thing.

- Posted by Rich Miller        

56 Comments
  1. - Wordslinger - Tuesday, Jun 30, 15 @ 9:16 am:

    It’s nice to see that the governor is maintainin’ a sense of humor during his manufactured “crisis,” workin’ with the unions, fightin’ alongside them in court.

    How’s about a round of “Solidarity Forever” under the Dome?

    Who exactly is supposed to be buyin’ what he’s sellin’ here?


  2. - A Jack - Tuesday, Jun 30, 15 @ 9:16 am:

    So, extended three day weekend?


  3. - Oswego Willy - Tuesday, Jun 30, 15 @ 9:17 am:

    It has come down to this for Governor Rauner;

    “Listen to what I’m saying, don’t look to see if it’s possible. Hear what I’m saying now, forget what you already know. It’s not that I win at everything, I just choose to be on the popular want. I want what’s best, especially if can put the worst on someone else…

    …I want to be the most popular bully, with the kindest heart while trying to take you down”

    The Democrats, heck even Republicans, have never had to deal with a man like Rauner. Rauner’s beliefs don’t change with the wind, his beliefs change only when an upper hand can be achieved, especially if no one calls him on it.


  4. - girllawyer - Tuesday, Jun 30, 15 @ 9:18 am:

    I know the governor is not a lawyer and also not a very good listener, but didn’t his lawyers explain all this to him?


  5. - walker - Tuesday, Jun 30, 15 @ 9:19 am:

    Well we’re certain to get some new arguments from the out-of-state lawyers on the greater Team Rauner, who would love to challenge the FLSA in any case. Maybe they can get a couple of individuals to claim standing in a Federal Court and go whole hog on this one. (half snark)


  6. - Me too - Tuesday, Jun 30, 15 @ 9:19 am:

    Brilliant! Now they can save the entire state payroll by forcing folks to work for no pay. I know they’ll get paid eventually, but the way “incur obligations” is in there makes it look as though the state can’t be on the hook unless there’s an appropriation. How can they ignore that part of the constitution? They say they can’t pay now because of it but they’ll pay later even though they were forbidden from “incurring obligations”. Sounds to me like they can’t ask employees to work not can employees do so unless they are willing to volunteer their services.


  7. - Salty - Tuesday, Jun 30, 15 @ 9:19 am:

    The GA then should pass a bill that just funds employee’s salaries.


  8. - PublicServant - Tuesday, Jun 30, 15 @ 9:20 am:

    The lawsuit might have been rendered moot, but ” knowingly and intentionally executing a false certification under Section 9.03 of the State Finance Act” still seems in effect to me, and that could potentially render our Governor moot. Wouldn’t that be a hoot!


  9. - Me too - Tuesday, Jun 30, 15 @ 9:21 am:

    *nor instead of not


  10. - Stones - Tuesday, Jun 30, 15 @ 9:22 am:

    This will only be resolved by public pressure. When drivers facilities close and people can’t get their licenses renewed, when there aren’t enough bus drivers because nobody is available to run their fingerprints, when conceal carry applications are backed up because background checks take months. When criminal trials are continued because there is not an available Court Reporter to take the record.


  11. - Mason born - Tuesday, Jun 30, 15 @ 9:27 am:

    So who will blink first. It would seem that either the g.a. or the gov. needs to pass or request a bill covcovering payroll. That will throw the bad guy label onto the other and make first to jump look like the Hero.

    Unless there is something I’m missing and it can’t be done.


  12. - Sangamo Sam - Tuesday, Jun 30, 15 @ 9:30 am:

    From budget negotiations, to museum closings, to withholding union dues to this issue and more, the Governor consistently shows that his operational knowledge of how state government works is lacking. It’s a very long learning curve and you need seasoned advisors to navigate it.


  13. - illinifan - Tuesday, Jun 30, 15 @ 9:30 am:

    Aw come on….we know laws and the constitution are for lesser people. The brilliant minds paid for by Rauner will always confirm this to him….just like the advisers who told the emperor his new threads were the best.


  14. - Oswego Willy - Tuesday, Jun 30, 15 @ 9:31 am:

    If you’re a state employee… or a union… state employee… and believe Rauner is “looking out for you”…


  15. - Norseman - Tuesday, Jun 30, 15 @ 9:33 am:

    Good job - as usual - laying out the issues Rich.

    The big negative goes to the merit comp folks who are exempt from the Fair Labor Standards Act. They get no money during this period without a budget while their expected to continue to make sure things get done.


  16. - JackD - Tuesday, Jun 30, 15 @ 9:36 am:

    The governor’s lawyers were confident about his position on the constitution and pensions too.


  17. - Georg Sande - Tuesday, Jun 30, 15 @ 9:42 am:

    Rauner continues to outplay Madigan, Cullerton, this echo chamber, the mainstream media, et al. #Winnin’


  18. - sss - Tuesday, Jun 30, 15 @ 9:44 am:

    Another precedent:

    In 2007, I received a flyer handed out in the parade from a Blagojevich staffer that said: “Tell Dan Hynes to Pay State Workers!”

    Eeerily similar.


  19. - Oswego Willy - Tuesday, Jun 30, 15 @ 9:47 am:

    - Georg Sande -,

    You heavy mouth-breathing notwithstanding, “how” is the governor in actual governin’… “#Winnin”?

    There’s no budget, the state could shutdown, workers possibly working in hopes of not having to get a short term loan, Rauner will raise taxes, an eventual signed budget becomes Rauner’s beyond the tax hike.

    Where exactly is there a “win”?


  20. - AC - Tuesday, Jun 30, 15 @ 9:52 am:

    “And be careful what you promise, and deliver what you promise.” - Jim Edgar

    Rauner has taken this so far in the opposite direction that he continues to promise things he knows are impossible to deliver.


  21. - GA Watcher - Tuesday, Jun 30, 15 @ 9:59 am:

    With all of the superstars Governor Rauner has hired to be on his team to turnaround our State, it’s pretty disappointing that the approaches they offer lean much more to the political vs. toward innovative policy changes.


  22. - Formerly Known As... - Tuesday, Jun 30, 15 @ 10:02 am:

    Illinois law was clear on the marriage laws the Attorney General declined to enforce or defend.

    Illinois law and Constitution was also clear on the pension theft law she declined to speak up against as she is speaking up here.

    The Attorney General has opened the door to the option of not intervening and defending this law if she chooses not to do so. That would undermine some of the Speaker’s leverage in his standoff with the Governor, however, so it is unlikely we would ever see that.


  23. - Grandson of Man - Tuesday, Jun 30, 15 @ 10:05 am:

    “Where exactly is there a “win”?”

    I agree. Rauner spent too much time on his anti-union agenda that failed with the public and legislators. Late in the game he drops most agenda items. That’s a lot of time wasted. Now we appear to be on the doorstep of a huge crisis. A win to him is governing by crisis.

    Rauner could now back off of his public union fair share fee ending demand, since SCOTUS granted cert to the California teachers fair share ending lawsuit. Why should he get any more political blood on his hands when SCOTUS could accomplish his goal for him?


  24. - Formerly Known As... - Tuesday, Jun 30, 15 @ 10:07 am:

    @GA Watcher - well said. It has been ==disappointing== so far, in spite of the impressive talent he has assembled.


  25. - facts are stubborn things - Tuesday, Jun 30, 15 @ 10:10 am:

    PR stunt….Rauner knows he is going to own this mess and he is trying to position himself. Rauner will not win this “turn around agenda” leverage idea — no revenue until I get what I want on non budget items. Those who doubt MJM are not very good students of history. MJM is many things, some good some not so good, but he is a master of keeping his majority. Everything he does is seen through the lens (at some point) of how to keep a majority. MJM now owns the narrative of problems are solved in moderation and not the extremem and by those that are reasonable. The number one issue facing Illinois is the budget and non budget issues should not hold the state of Illinois hostage. That is a winning hand! MJM has beat Rauner to the correct position to weather the shutdown and this “I will pay state employees” ploy is too little too late and is also a bit flawed when it comes to the law.


  26. - Joe M - Tuesday, Jun 30, 15 @ 10:12 am:

    Kind of ironic that the Governor vetos the appropriation bills that would have paid state workers. But then he says he will champion the cause to get them paid.


  27. - Frenchie Mendoza - Tuesday, Jun 30, 15 @ 10:13 am:

    I’ve asked this question several times — and maybe there’s no one that knows the answer — but is Rauner governing the same way he ran his businesses?

    In other words, in Rauner’s daily work — assuming he did daily work — was this his MO? Throwing whatever project he was focusing on (assuming he focused on one or more projects) into a total crisis, threatening folks that didn’t agree with him, and promising what he legally couldn’t deliver?

    I know he said he wants to run government like a business — but I’m more curious about how Rauner operated with his own businesses. Maybe this kind of process gets you money — but for the life of me I can’t figure out how this is anywhere near “good business” in terms of achieving goals and meeting milestones.


  28. - now wait a minute - Tuesday, Jun 30, 15 @ 10:14 am:

    Lol rauner’s lawyers aren’t very good are they? This is embarrassing. It’s like keystone cops. Not the best and the brightest are they?


  29. - thunderspirit - Tuesday, Jun 30, 15 @ 10:15 am:

    OW: I would presume the “win” is that Governor Rauner is getting exactly what he seems to have wanted all along — a shutdown.

    I don’t see it as a “win,” and I suspect much of the Illinois public will concur. But I could always be wrong.


  30. - Red Dog - Tuesday, Jun 30, 15 @ 10:22 am:

    We will pay 100% of your salary and you will pay 100% of insurance premiums state employee.


  31. - Arthur Andersen - Tuesday, Jun 30, 15 @ 10:37 am:

    Red Dog thinks he’s clever. That “idea” won’t balance the budget either. Jerk.


  32. - VanillaMan - Tuesday, Jun 30, 15 @ 10:39 am:

    If Georg is a “mouth-breather”, no one should be making fun of that. His brain obviously needs oxygen.


  33. - Norseman - Tuesday, Jun 30, 15 @ 10:42 am:

    === I know the governor is not a lawyer and also not a very good listener, but didn’t his lawyers explain all this to him? ===

    Maybe the governor can’t speak Indianan.


  34. - Stooges - Tuesday, Jun 30, 15 @ 10:44 am:

    There is probably a clause that allows the State Police to be paid no matter what, but just wondering if there is any chance they would not be on the job if this drags on too long.


  35. - AC - Tuesday, Jun 30, 15 @ 10:47 am:

    Anyone who thinks Rauner isn’t a billionaire version of Blago needs to re-read from this very website:

    https://capitolfax.com/2007/08/08/constitution-schmonstitution/

    “Refusing to pay state employees for their hard work is tantamount to shutting state government down,” Blagojevich said in a letter to Hynes.


  36. - Langhorne - Tuesday, Jun 30, 15 @ 10:48 am:

    It must be impossible to try and tell rauner he cant or shouldnt do something he is set on doing. First one to give him a twisted rationale to justify his position gets a gold star for the day. Anyone believe he actually is coordinating w unions to pay employees?


  37. - Oswego Willy - Tuesday, Jun 30, 15 @ 10:49 am:

    ===OW: I would presume the “win” is that Governor Rauner is getting exactly what he seems to have wanted all along — a shutdown.===

    Governor Rauner made it clear a shutdown “is worth” the pain.

    “… is worth …”

    Rauner is owning that Rauner wants the shutdown… to teach.

    If that’s a win…

    - VanillaMan -, maybe you’re right, and if that’s the case, I hope - Georg Sande - breathes more. For his sake.


  38. - Me too - Tuesday, Jun 30, 15 @ 10:53 am:

    Sweet. No more obeying speed limits.


  39. - Oswego Willy - Tuesday, Jun 30, 15 @ 10:58 am:

    - AC -,

    Great stuff there. Glad it got added up top.

    ===Anyone who thinks Rauner isn’t a billionaire version of Blago needs to re-read from this very website:===

    Rauner can’t run away from the similarities, and the quote;

    ===“Refusing to pay state employees for their hard work is tantamount to shutting state government down,” Blagojevich said in a letter to Hynes.===

    Eerie


  40. - Formerly Known As... - Tuesday, Jun 30, 15 @ 11:01 am:

    ==The number one issue facing Illinois is the budget and non budget issues should not hold the state of Illinois hostage. That is a winning hand!==

    It would have been a winning hand, had the GA not passed two consecutive unbalanced budgets under two different governors.

    That indicates there is a problem with the GA.


  41. - Rich Miller - Tuesday, Jun 30, 15 @ 11:03 am:

    ===That indicates there is a problem with the GA. ===

    Yep.


  42. - No matter where you go - Tuesday, Jun 30, 15 @ 11:04 am:

    Another “illinois Pride” moment - When do the spiked helmets come out?


  43. - Oswego Willy - Tuesday, Jun 30, 15 @ 11:05 am:

    - FKA -

    With respect;

    Two questions;

    If the passed GA budget was so far out of whack, why did Rauner sign the “sham” Ed Approp bill?

    Was the Rauner budget proposed in February balanced?

    Bonus question - will revenue be needed in the final agreed product?

    With respect, as always.


  44. - Juvenal - Tuesday, Jun 30, 15 @ 11:07 am:

    OW, I await this line with baited breathe:

    “My chief legal counsel got a ‘C’ in Constitutional law.”

    - Governor Rauner


  45. - Juvenal - Tuesday, Jun 30, 15 @ 11:10 am:

    On, “precedent,” a defer again to Inigo Montoya:

    “You keep using that word. I do not think it means what you think it means.”


  46. - MrJM - Tuesday, Jun 30, 15 @ 11:35 am:

    “My chief legal counsel got a ‘C’ in Constitutional law.”

    - Governor Rauner

    “Hiring a tutor really brought his grade up from the first he took it.” #MarketSolutions

    – MrJM


  47. - RNUG - Tuesday, Jun 30, 15 @ 11:43 am:

    == is Rauner governing the same way he ran his businesses? ==

    Rauner didn’t run the businesses he acquired; he hired managers to gut them of anything of value and then dumped them.


  48. - Oswego Willy - Tuesday, Jun 30, 15 @ 11:45 am:

    - Juvenal -,

    ===“My chief legal counsel got a ‘C’ in Constitutional law.”===

    … in Indiana.

    - MrJM -, it’s like what do you call the person graduating last in Med School? - Doctor.


  49. - girllawyer - Tuesday, Jun 30, 15 @ 11:57 am:

    I took Constitutional Law at a fine Illinois law school and I honestly don’t remember the Illinois Constitution being covered. Constitutional Law is about the U.S. Constitution. That being said, if I were to take a job in, say, juvenile court, I would immerse myself in the Juvenile Court Act. If I were to take a job as counsel to the governor of Illinois, I would spend a whole lot of time studying the Illinois Constitution and cases interpreting it. But maybe that’s just me.


  50. - Soccermom - Tuesday, Jun 30, 15 @ 11:59 am:

    I’m kind of fuzzy-brained this morning. So could someone please remind me why we’re not hearing about furloughs in this round?


  51. - Honeybear - Tuesday, Jun 30, 15 @ 12:08 pm:

    Because state workers were sold down the river and told to show up to work. They just don’t know yet they aren’t going to be paid until a budget agreement. Fodder pure fodder. Pray for us.


  52. - Formerly Known As... - Tuesday, Jun 30, 15 @ 12:22 pm:

    As for the bonus question, my guess is we would also agree the state needs both revenue and cuts, even though the 3.75% tax rate is still an increase over the 3% rate Illinois had in 2010. And even at 5%, reports like this from U of I’s IGPA in January are still worrisome

    ==deficit hitting $14 billion by fiscal 2026, assuming no changes in law or spending practices. The report says the fiscal hole is so big that even fully reversing the income tax cut that took effect Jan. 1 would close “only about half” the gap projected for the next several years.==


  53. - dupage dan - Tuesday, Jun 30, 15 @ 1:21 pm:

    === Oswego Willy - Tuesday, Jun 30, 15 @ 9:31 am:

    If you’re a state employee… or a union… state employee… and believe Rauner is “looking out for you”… ===

    As a state employee who has worked under 6 governors, I never believed the governors were looking out for me. That would be naive and ill-advised.


  54. - Retired - Tuesday, Jun 30, 15 @ 2:59 pm:

    If Rauner goes ahead with his pay scheme, who is going to sue to stop him?


  55. - Just sayin' - Tuesday, Jun 30, 15 @ 7:13 pm:

    If the folks processin’ food stamps don’t go to work wait for the yellin’ when folks show up hungry on the 6 oclock news.


  56. - Mama - Tuesday, Jun 30, 15 @ 8:33 pm:

    “workin’ with the unions, fightin’ alongside them in court” Does this mean Rauner is paying the union’s attorney fees?


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