In September, Mayor-President Josh Guillory appropriated $22 million of coronavirus relief funds against the wishes of the City Council — with the stroke of his veto pen. For students of civics, that might sound strange. Legislative bodies have the power of the purse. How can the executive branch spend money without legislative authority?
Well, according to a pair of attorney general opinions, it can’t. Two cases, one in West Baton Rouge Parish and another in West Feliciana Parish, presented similar circumstances to the Louisiana Attorney General’s office. And in both cases, the AG reasoned that veto power can only be used to remove spending, not add it.
The legal argument rests on the separation of powers enshrined in most governments, including Lafayette’s. Legislative bodies appropriate money, not the executive branch. But that’s exactly what’s been happening at LCG for more than a decade.
The AG opinions
In 2002, the West Baton Rouge parish president proposed funding for a partial enclosure of a pavilion. The parish council removed that funding by amendment. The president then vetoed the amendment, claiming he restored the funding. The AG’s opinion was that “the parish president has no authority under the Parish Home Rule Charter to veto the absence of an appropriation that was properly deleted by the council.” Notably, Lafayette has the same language in its charter.
In 2014, it was more or less the same story. The West Feliciana parish president proposed funding in the parish budget for economic development. The parish council removed the funding by amendment. The president then vetoed the amendment, claiming he restored the funding. The AG’s opinion was that the veto had “no effect” in terms of appropriating funds. The second opinion cited and reaffirmed the first.
The basic principle grounding both opinions is that a veto can delete funding but can’t restore funding the council removed. Essentially by custom, Lafayette has gone another direction, with three consecutive mayor-presidents claiming the ability to appropriate by veto.
Lafayette’s parallel history
In 2009, Mayor-President Joey Durel proposed spending $395,000 to equip LCG vehicles with GPS trackers. The City-Parish Council removed the funding by amendment. Durel vetoed the amendment and “restored” that funding. The council failed to override the veto, and the money was thus appropriated without the council’s approval.
In 2019, Mayor-President Joel Robideaux proposed spending $7.1 million for stormwater diversion. The City-Parish Council removed the funding by amendment. Robideaux vetoed the amendment and claimed that by doing so he was restoring that funding. The council then failed to override the veto, and the money was appropriated without the council’s approval.
Now, in 2021, Guillory has attempted two line item vetoes he claimed would restore funding to appropriations the councils didn’t authorize.
In the first, he proposed a plan to spend all $85.7 million of the city and parish’s allotment from the American Rescue Plan Act. The City and Parish councils both voted unanimously to remove funding from 69 of the 70 projects he proposed. He then claimed the right to selectively veto parts of the amendment to restore funding to seven city-funded projects. The councils failed to override the veto, and $22 million worth of city money was appropriated without the City Council’s approval.
In the second, he claimed that his veto could restore $250,000 to the North Lafayette Redevelopment Authority. After some procedural confusion, LCG’s legal department quietly clarified that, despite Guillory’s claims, the veto would not restore funding. This issue became doubly moot when the councils voted unanimously to overturn this veto.
How could this happen?
The first step to understanding how Lafayette got into this situation is to consider the language in the charter that grants the mayor-president veto authority:
“All ordinances vetoed by the Mayor-President shall be vetoed in full, except that the Mayor-President shall have authority to veto individual appropriation items in the ordinances adopting the operating and capital improvement budgets and amendments thereto.”
So the mayor-president can veto an entire ordinance. Or, in the ordinances adopting the annual budget and mid-year budget amendments, he has the ability to veto line items — individual appropriations within an ordinance — that have been approved by the councils.
There are some nuanced but important differences between Guillory’s vetoes and those of his predecessors. But they share a simple legal theory: The mayor-president can delete an amendment to restore funding to a line item he’s proposed even if the council hasn’t authorized that appropriation.
Guillory’s application of this theory goes further. Since the councils didn’t pass 69 separate amendments to remove funding from 69 ARPA projects, Guillory couldn’t use his red veto pen to delete entire amendments like Durel and Robideaux did because the councils only passed one amendment that reads: “Amendment approved by both Councils to zero out all projects…”
Instead, Guillory claimed even more authority, using his veto pen to essentially rewrite the amendment the councils passed, cherry-picking the projects he wanted to restore funding to without the councils’ approval. That’s how the $22 million of Downtown and drainage projects were ultimately “approved.”
Again, the AG’s opinions argue the executive branch does not have the ability to veto appropriations into existence against the will of the legislative branch.
While AG opinions don’t carry the weight of law, they do call into question whether any of the aforementioned money was legally appropriated, given that none of it was approved by the bodies with the legislative authority to appropriate funding.
Basically, what’s happened is that three consecutive administrations have chosen to adopt a maximalist interpretation of executive authority. And this increasingly expensive precedent has gone unchallenged by the councils.
This isn’t what the veto is meant to do
The whole purpose of a veto is to empower the executive branch to force the legislative branch to clear a higher hurdle to appropriate questionable spending. That hurdle being the need for a supermajority vote to override a veto.
For example, if three of five city councilmembers wanted to appropriate $1 million to a line item called “Money Bonfire,” the mayor-president could use a veto to force the council to secure four of five votes before breaking out the matches.
Put another way, the power of the veto is to delete funding, not to appropriate funding.
Three mayor-presidents have essentially used the veto to circumvent the councils’ authority by appropriating funds without their approval.
These appear to be clear violations of Lafayette’s charter that substantially diminish the councils’ ability to protect how taxpayer dollars are spent.
In theory, this interpretation of the charter lowers the guardrails for mayor-presidents to do ridiculous things with public dollars.
For example, a mayor-president could propose LCG spend $100 million on any pet project. Then, after the councils presumably remove that funding by simple majority, the mayor-president could veto the amendment. And, with the support of just two people on either council, appropriate the money anyway since that would preclude the supermajority vote needed from both councils to override a veto on a joint ordinance.
For anyone who cares about the separation of powers and following the law, this is clearly an untenable situation. The question now is whether the councils will do anything about it.
Theoretically, rectifying this should be easy. The councils could just ask the administration to update the budget to reflect that $22 million of city ARPA funds have not yet been legally appropriated. Then, if the City Council decides to spend this money on these projects or others, it could pass a mid-year budget amendment to legally appropriate these funds.
Were the mayor-president to refuse, Lafayette could find itself in the midst of a constitutional crisis that could only be resolved in court.
Such unpleasantness would waste taxpayer dollars while adding unnecessary acrimony to the already deteriorating relations between Lafayette’s executive and legislative branches.
But regardless of the politics, this issue needs to be addressed so that the councils can protect their ability to do their jobs of appropriating taxpayer dollars, which voters gave to them — not to the mayor-president.