Senate panel questions legality, costs of governor’s plan to create Agency of Public Safety

Tucker Anderson, legislative counsel for the Office of Legislative Council, told the Senate Government Operations Committee on Jan. 23 that Executive Order 01-25 would reorganize the Department of Public Safety into a new Agency of Public Safety and, in doing so, “purports to grant authority to the governor to propose the reorganization of an administrative agency in the executive branch.”

The order relies on 3 V.S.A. § 2002, Anderson said, a statute that authorizes the governor to issue executive orders changing the organization of executive-branch agencies. Anderson emphasized the statute allows these executive orders to be “lawmaking” in effect — that is, to supersede existing statutes — and described legal fault lines over whether the General Assembly’s power to disapprove the order can be exercised by either chamber alone or must be bicameral.

Why it matters: If an executive order can change statutory structure without a full legislative bill, it raises separation-of-powers and budget questions. Several senators said they felt the changes described in the order were substantive enough to warrant a full legislative process, or at least more committee review, rather than being enacted by executive order alone.

The committee’s discussion focused on three legal and practical points: the statutory process under 3 V.S.A. § 2002; the constitutional concerns about unicameral disapproval versus bicameral action; and fiscal and personnel implications from converting a department into an agency. Anderson warned the EO’s whereas clauses — which assert that disapproval must be expressed by both houses — conflict with the statute, which says disapproval may be adopted by either house within 90 days of submission. He also said there are “colorable arguments on both sides” about delegation of legislative authority and whether the legislature may lawfully delegate power that effectively changes statute to the governor.

Multiple senators pressed for concrete costing information. One senator noted pay-act implications: changing department division directors to commissioners or creating cabinet-level secretaries would have “huge pay implications,” and another urged the Joint Fiscal Office (JFO) be asked to prepare or confirm a fiscal note. Several members said they were not opposed to the policy aim of reorganizing public-safety functions but were uneasy about the method and the ticking 90-day window that would allow the order to take effect unless a resolution disapproving it is passed.

Committee action and next steps: The panel did not vote on any resolution. Members directed staff to: (1) ask JFO whether a fiscal note exists or should be produced; (2) invite the administration’s commissioner and other affected division heads to testify about operational and personnel impacts; and (3) schedule a longer follow-up hearing (the chair said the item is on the committee docket for the following week with additional time requested).

What remains unsettled: Anderson said there are no controlling judicial decisions about this precise statutory exercise and that the statute contains ambiguities — for example, whether it lawfully authorizes reorganization that affects independently elected constitutional officers. He recommended the General Assembly consider whether to disapprove the order by resolution, and he noted that even if the EO is disapproved, the legislature could subsequently introduce a bill to accomplish a similar reorganization through the legislative process.

Ending: Committee members expressed a range of views — some favoring more study and hearings, others prepared to pursue a disapproval resolution if warranted — but agreed to obtain a fiscal analysis and additional testimony before deciding whether to advance formal action.