Yesterday Governor Malloy vetoed a bill that would have given a legislative committee (as opposed to an Executive Branch agency) the ability to evaluate the state’s tax incentive program for recruiting and retaining businesses. The bill had strong support from state Comptroller Kevin Lembo, who issued a statement calling the veto “deeply troubling” and a “terrible loss of transparency.”
The current dispute between Mr. Lembo and Governor Malloy reminded me of an article I wrote several years ago about the structure of our state government, particularly how the constitutional officers outside of the Governor’s office play an important “watchdog” function in overseeing the Executive Branch. (Notably, the Comptroller’s website describes the Comptroller as “Connecticut’s fiscal guardian — committed to help eliminate wasteful spending, strengthen budget transparency, deliver government services more efficiently and address the state’s growing health care crisis.”) I think my article is relevant to the present dispute. I’ve taken the liberty of reposting it below.
The Connecticut Constitution, like the federal constitution, divides government into three branches. I love the language of Article Second of the state constitution:
The powers of government shall be divided into three distinct departments, and each of them confined to a separate magistracy, to wit, those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.
It couldn’t be simpler, right? Three branches or departments: executive, legislative and judicial. Period. End of story.
However, after watching the latest in a series of, shall we say, “disagreements” between the state comptroller (Kevin Lembo) and the Malloy administration over the size of the state deficit, I’m no longer certain the issue is so simple. In fact, I’m inclined to believe that our state government is really divided into seven branches: the three expressly referenced in Article Second, along with the comptroller, treasurer, secretary of state and attorney general.
My argument is largely functional, not textual, in nature. Textually, Article Fourth of the state constitution places the comptroller, treasurer, secretary of state and attorney general squarely within the executive branch. Yet that same article also provides for the direct election of those officials. Thus, unlike in the federal system, where the president appoints individuals to comparable positions, the occupants of these state offices do not owe their allegiance to the head of the executive branch, i.e., the governor. Thus, they are functionally independent of the executive branch, even if legally they are part of it. Recently, that functional independence is becoming clearer and clearer.
Whether the functional independence of the comptroller, treasurer, secretary of state and attorney general is a good thing or a bad thing is a matter worthy of debate. Historically, at least since the Constitution of 1818, the treasurer and secretary of state have been elected, not appointed. Notably, the Constitution of 1818 expressly gave the legislature, not the executive branch, the right and responsibility to appoint a “Controller of the public accounts.” That changed in 1836, when an amendment to the state constitution made the comptroller an elected officer. (The Attorney General did not become a constitutional officer until 1970.)
I suspect that the framers of the Constitution of 1818, and of subsequent amendments to that constitution and the Constitution of 1965, did not want the officials holding these important offices to be beholden to the head of the executive branch. Although calling these offices “watchdogs,” like the Freedom of Information Commission or Office of State Ethics, is probably a stretch, the framers certainly seemed to value their independence.