Judge says governor can decide how to spend COVID funds without legislative approval

  • Gov. Chris Sununu Courtesy photo

Monitor staff
Published: 10/14/2020 5:28:52 PM

A Superior Court judge sided with Gov. Chris Sununu over Democratic legislators Tuesday in a long-running dispute over who gets authority to spend federal COVID-19 stimulus dollars.

In an order issued Tuesday morning, Judge David Anderson of the Hillsborough District Court denied an attempt by two top Democratic lawmakers to force Sununu to get legislative approval before spending $1.25 billion in COVID-19 federal relief money.

That sum of money came from the CARES Act, a bill passed by Congress and signed by President Donald Trump in March, in the early days of the COVID-19 pandemic. Each state was given a minimum of $1.25 billion to spend on programs to fight the coronavirus and the economic impact of shutting down many businesses in the state.

The money came with broad flexibility as to how states could spend it. Quickly, Sununu formed the Governor’s Office for Emergency Relief and Recovery (GOFERR), comprised of a team of state officials that would make spending decisions for how to allocate the money.

Democrats, who have majorities in the state House and Senate, tried early on to insert the Legislature into the spending process, arguing that the joint House and Senate Fiscal Committee shoud have approval power over the spending of the money.

But Sununu, a Republican, rebuffed that effort, arguing the money needed to be allocated quickly and that because the money is federal grant money at a time of emergency, the executive branch was authorized to spend it unilaterally. The governor set up a bipartisan panel of lawmakers to hear from stakeholders and make recommendations. Those recommendations were not binding on the GOFERR office.

In April, before the $1.25 billion had officially arrived, two Democrats sued to attempt to establish legislative oversight over how the money would be distributed: Manchester Sen. Lou D’Allesandro, chairman of the Senate Finance Committee and Concord Rep. Mary Jane Wallner, chairwoman of the House Finance Committee and the Joint Fiscal Committee. They argued that the traditional process for spending or transferring federal grant money – executive branch agencies bring it to the Fiscal Committee and sometimes the Executive Council for approval – should be followed for the COVID relief.

But the Democrats’ hopes for a quick court order were dashed early on. On April 22, Anderson dismissed the case for lack of standing, holding that the alleged harm was connected to the institution, not the individuals.

On Tuesday, Anderson went further, holding that the Sununu administration was within its rights to spend the money unilaterally due to an existing statute, RSA 21-P:43, that allow the state political bodies including the governor’s office to spend “gifts grants, and loans” from the federal government.”

In a statement reacting to the order, Sununu said that the court’s decision not to force legislative input had allowed the aid money to flow out much faster.

As of October, six months after the creation of GOFERR, about a billion dollars of the $1.25 billion has been spent or allocated into programs, with tranches going toward initiatives ranging from rental assistance programs to relief for business, non-profits, hospitals and farms.

“Had the Democrats won this case six months ago, our COVID relief efforts would have stalled, negatively impacting every citizen of our state,” Sununu said in a statement, calling himself “thankful” for the ruling Tuesday.

But the Democratic lawmakers who brought the lawsuit called the court order “a blow to our Constitution’s promise of balanced government which guarantees that the Legislature, as the people’s representatives, transparently decides how taxpayer dollars are spent.”

“New Hampshire is stronger when we all work together; that’s why it is disappointing that Governor Sununu continues to cut the Legislature out of New Hampshire’s recovery efforts,” they said.

Lawmakers on the GOFERR advisory panel are now working to recommend how the final amount gets spent before Dec. 31, when all CARES act money not yet spent will revert back to the federal government.

On Tuesday, the legislative advisory board appeared to lean towards spending some of the remaining funds toward schools to help plug budget holes in response to a loss in funding from the Federal Emergency Management Agency.




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