California May Be Heading to Constitutional Standoff on Schwarzenegger’s Plan for Payment of Less Than Full Salaries to State Employees With Unanswered Questions: Thursday May Be D-Day

July 25, 2008

Honorable Dean Florez
Room 5061, State Capitol
EXECUTIVE ORDER: PAYROLL WARRANTS - #0823887

Dear Senator Florez:

This is to confirm an oral opinion that we conveyed to Mr. Alvarez of your office on Friday, July 25, 2008.

You asked us to address a draft executive order that the Governor is proposing to issue. The order would direct that, pending the enactment of a Budget Act for the 2008-09 fiscal year that contains an appropriation for the payment of state employee salaries, the Controller issue state payroll warrants in an amount that, in specified cases, would not exceed the amount of the federal minimum wage, based on the California Supreme Court ruling in White v. Davis (2003) 30 Cal.4th 528 (hereafter White). You asked specifically whether the Governor is authorized, by executive order, to require the Controller to comply with that direction.

The Governor's authority to issue an executive order derives from the constitutional provisions conferring the supreme executive power on the Governor and providing that the Governor shall see that the laws are faithfully executed (Sec. 1, Art. V, Cal. Const.; see also Secs. 11150, 12010, and 12011, Gov. C.). The Constitution also provides for the statewide election of the Controller (Sec. 11, Art. V, Cal. Const.), and vests in the Controller the power the draw warrants for the expenditure of state funds (Sec. 7, Art. XVI, Cal. Const.), although it primarily leaves to the Legislature wide discretion to define the Controller's duties and function (Tirapelle v. Davis (1994) 20 Cal.App.4th 1317, 1327; see, for example, Sec. 12410 and 12440, Gov. C.).

The issue raised by your question is whether the Governor's authority includes the power to direct the Controller as to the manner in which the Controller exercises his or her constitutional and statutory authority over the drawing of warrants from the State Treasury.

While California case law does not address this issue directly, the courts of this state have generally held that the authority to supervise a public officer does not include the power to direct the manner in which that public officer performs his or her duties (see People v. Brophy (1942) 49 Cal.App.2d 15; see also Pius v. County of Kern (1998) 17 Cal. 4th 340, 368; Hicks v. Board of Supervisors (1977) 69 Cal.App.3d 228; but see People ex rel. Deukmejian v. Brown (1981) 29 Cal.3d 150, 157-158, in which, as to a matter involving overlapping powers of the Governor and the Attorney General regarding the execution of the laws, the court held that the Attorney General may act only "subject to the powers” of the Governor). Courts have also held, in this respect, that the establishment of a public office in a state constitution impliedly grants certain inherent powers and responsibilities (Love v. Baehr (1874) 47 Cal. 364, 367-368), and that the constitutional requirement that a public officer be elected by the people reflects an intent to grant autonomy to the officer in the performance of his or her duties (Brown v. Barkley (Ky. 1982) 628 S.W.2d 616).

With respect specifically to the office of Controller, there is little direct case law, although California courts have ruled in certain circumstances that the Controller is empowered to exercise his or her authority independent of the direction of the Governor (see Madden v. Riley (1942) 53 CaLApp.2d 814, 820-821; Lukens v. Nye (1909) 156 Cal. 498, 504; see also Tirapelle v. Davis, supra, at p. 1330-1331, fn. 20).

Based on these authorities, it is our conclusion that the Governor is not authorized, by executive order, to direct the Controller in the manner in which the Controller exercises his or her constitutional and statutory authority over the drawing of warrants from the State Treasury.*

Very truly yours,
Diane F. Boyer-Vine Legislative Counsel

By Kirk S. Louie
Principal Deputy Legislative Counsel

*We do not address, in this opinion, the validity of the manner in which the Controller may be issuing state payroll warrants, in light of the Controller's constitutional and statutory authority and the ruling in White v. Davis. The Controller's actions with respect to the payment of claims are generally subject to challenge in the form of mandamus actions brought against the Controller (see Veterans of Foreign Wars v. State of California (1974) 36 CaLApp.3d 688, 697).