Thursday, August 25, 2011

Separation of powers at play in regional superintendents' court case

By Jamey Dunn

Regional superintendents will have to wait at least one more day to find out if they can expect pay checks in the near future.

In June, Gov. Pat Quinn used his veto pen to slash the funding for their salaries from the budget lawmakers sent him, saying he believes the administrators should be paid at the local level. As a result, the superintendents have yet to receive a pay check since the new fiscal year started on July 1. Quinn’s administration is working on legislation to draw the salaries from a local tax, and lawmakers could vote to override the veto. But neither of those things would likely take place until the legislature's veto session, scheduled for October. The superintendents have asked a Sangamon County judge to force the state to pay them until a solution can be found. They are not seeking back pay through their request.

“They provide a very important cog in the machine of public education,” Charles Schmadeke, who is representing the superintendents, argued in court today. He said that the Illinois State Board of Education (ISBE) could pay the administrators from a fund used to pay board personnel, which he said is described in the law as money to ”pay the people who do the job for the Illinois State Board of Education, and that’s what these [superintendents] are doing.”

He acknowledged that it was Quinn’s right as governor to veto the funding for the salaries. “We are not suggesting that the governor doesn’t have the power he engaged here; he clearly does.” However, he said, because the General Assembly created the positions and wrote the regional supeintendents'  pay scale into law, Quinn's action of taking away the funds does not mean he can simply not pay them. Schmadeke said that the law allows the state to pay them, even from the original funds that Quinn vetoed, regardless of the governor’s budget action. He said a change to the law would be needed to stop paying the administrators with state dollars.

Assistant Attorney General Terence Corrigan said that while lawmakers may have wanted the superintendents to be paid through state funds, the governor used his veto pen to remove the line item. He argued that without an appropriation, there is simple no authority to spend the money. “The fact that the legislature intended that they be paid doesn’t mean that the court can pay them with no appropriation.” Corrigan said that using personnel funds from ISBE would throw the agency into chaos because it could potentially run out of money to pay its staff. “In 60 days, the state board would basically cease to function.” Schmadeke countered that going to ISBE would only be a temporary fix and would not sink ISBE’s staffing budget. “Let’s have a hearing on the merits, but get these people paid in the meantime.”

Sangamon County Circuit Judge John Schmidt said he is concerned that his ruling could have a profound impact on the separation of the powers among the branches of government. He questioned whether the state’s argument could lead to a scenario where “basically the governor could do away with a statutorily created office” by vetoing the pay for the job. However, he questioned whether he had the authority to order the executive branch to spend funds. “There are no easy answers here,” Schmidt said. He said he was “aghast” that the state downplayed the hardship faced by the superintendents, who have gone months without pay. But he questioned what he could do to force Quinn to pay the administrators if he ruled in their favor and Quinn refused to comply. “I don’t issue orders I can’t enforce.” Schmidt said. “The lack of hardship is not my holdup here.”

He said he expects to issue an order by noon tomorrow.

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