Who can spend N.H.'s $1.25 billion stimulus funds: the governor or the legislature?

  • New Hampshire Governor Chris Sununu (right) and House speaker Steve Shurtleff after the governor's State of the State address on Thursday, February 13, 2020. GEOFF FORESTER

Monitor staff
Published: 4/8/2020 1:07:47 PM

New Hampshire is set to receive more than $1.25 billion dollars this year as a result of a federal COVID-19 stimulus package – the biggest lump sum in the state’s history.

To put that in perspective, that’s about 10 percent of the state’s two-year total budget. 

But how state officials plan to dole out this federal money and who in Concord has authority to decide who gets what has touched off a profound legal dispute.

Democrats, who control the House and the Senate, say any spending of the money must go through the Legislature, and specifically the powerful fiscal committee that approves all major state financial requests.

“The swiftest means of effectively and constitutionally spending federal stimulus funds is through the Joint Legislative Fiscal Committee,” wrote House Speaker Steve Shurtleff and Senate President Donna Soucy, both Democrats, in a letter to Gov. Chris Sununu Tuesday.

Sununu, a Republican, says otherwise. That money, accepted under a state of emergency, may be spent without the Legislature’s sign off, he said, pointing to other different areas of statute.

So far it’s a disagreement in theory, not practice. New Hampshire has not yet received the money, and even basic details from the U.S. Treasury Department on how the funds must be spent have not been released.

But at a time when the Fiscal Committee has recently clashed with Sununu when it rejected federal funds to expand the state’s charter schools, the unresolved question of who has authority to approve expenditures could hang over the process in the coming weeks.

The dispute has played out in a series of letters between top New Hampshire politicians.

On Tuesday, Sununu announced the creation of a new office to help disperse the funds: the Governor’s Office for Emergency Relief and Recovery, following a template by Gov. John Lynch during the 2009 recession. 

This year, the office of emergency relief will include an advisory committee comprised of Democratic and Republican lawmakers, Sununu said. But their decisions would not be binding on the governor, and the urgency of the coronavirus crisis necessitates that the money be spent quickly, he added.

Democrats objected. In their own letter, Shurtleff and Soucy insisted that while the advisory committee was a good idea, major spending should still be approved by the Fiscal Committee.

That committee consists of senators and representatives from both parties, but is dominated by Democrats.

“We are pleased that the advisory committee you have outlined would complement an already established legislative process,” the lawmakers wrote. “As you know, the Fiscal Committee is a bipartisan joint legislative committee which is designed especially to accept and expend federal funds and plays a crucial role during times of crisis.”

Leaders of the two branches have pointed to competing state statutes to lay out their claims. Democrats say RSA 9:13-d – which allows the governor to spend any money necessary in a state of emergency “with the advice and consent of the Fiscal committee” – should take precedence.

That would allow Sununu to bring forward requests to the panel and give those lawmakers an up-down vote of approval. 

But the Sununu argues that that statute is superseded by two others that allow a governor to spend money in a state of emergency in specific areas without approval.

“Pursuant to RSA 4:45 and RSA 21-P:43, Fiscal Committee approval is not technically required for the acceptance and expenditure of these funds,” Sununu wrote. “However, we appreciate the legislature’s role in addressing this epidemic in a unified manner.” 

RSA 4:45 allows the governor to “transfer, receive, or deliver materials … for emergency management purposes” without legislative input and “without regard to the limitations of any existing law.” 

RSA 21-P:53, meanwhile, gives the Department of Health and Human Services the authority to purchase and distribute “anti-toxins, serums, vaccines, immunizing agents, antibiotics, and other pharmaceutical agents that the commissioner deems to be in the interest of public health.”

The Fiscal Committee has its next meeting Friday morning at 10 a.m., set to be conducted via a conference call open to the public. 

But the $1.25 billion is not presently on the agenda. It can be brought forward as a late item by any of the agencies before Friday. 

Still, both sides said they were willing to work together – in their own ways.

“The Fiscal Committee is committed to meeting as quickly and as often as necessary to accept and expend emergency appropriations so our constituents are provided with the critical relief and economic assurance they need and deserve,” Soucy and Shurteff wrote.

“We are creating a bipartisan Legislative Advisory Board within (Governor’s Office for Emergency Relief and Recovery) to ensure transparency and input to the process,” Sununu countered. “It is important that this process has as much accountability, transparency, and integrity as possible, and I look forward to having legislative leadership advise this critically important office.”

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