So let’s start with a serious question — if Sheriff Christopher is the Sheriff of Nuttingham, what character would we assign to Chip Flowers?
Today, the Attorney General’s office rendered an opinion based on questions that the Cash Management Policy Board asked the AG to weigh in on. Those questions are:
1. As between the Office of the State Treasurer (the “State Treasurer”) and the CMPB, who has the power and legal authority to make investment decisions regarding the State’s $2 billion cash management portfolio?
2. Does the power and authority include decisions regarding asset allocation between short term and intermediate term investments, and decisions regarding asset allocation among fund managers?
The AG’s office has concluded that it is clear that the CMPB is invested with the legal authority to make investment decisions for the state’s cash and that they also make decisions on asset allocations. It is hard to see otherwise, if you read the appropriate statute. ALL of the appropriate statute. This is an interesting document and looks familiar if you read the AG’s opinion regarding the power and authority of the office of elected Sheriff some years back, responding to Sheriff Christopher’s ambitions to operate as a sworn police officer. They’ve gone through the history of the office — from colonial times to the formulation of the first constitution through now.
Delaware’s current Constitution was ratified in 1897. In the 1897 Constitution, the State Treasurer, like other state offices, was reorganized under the Executive branch and made an elected rather than an appointed office. The 1897 Constitution, like all prior Delaware
Constitutions, does not expressly grant the State Treasurer any power with respect to the investment of State funds. Under Article II, the State Treasurer has no express constitutional powers and just one constitutional duty- namely, to settle accounts annually with the General Assembly. The constitutional restriction on the State Treasurer’s ability to withdraw funds and make payments from the treasury only when expressly permitted by the legislature remains in place to this day.
Interestingly, the recent clarification of the duties of the Sheriff comes into play in defining the duties of the Treasurer:
While no Delaware court has addressed whether the State Treasurer has inherent constitutional powers, the Delaware Supreme Court recently acknowledged that constitutional officers have certain inherent or “core” duties and powers that may not be abrogated without amending the Delaware Constitution. In Christopher v. Sussex County, the Delaware Supreme Court examined the “substance” or core functions of the sheriffs office, a constitutional office, as it developed in Delaware. The Court looked to the role of Delaware sheriffs under colonial governance, the common law as it existed in 1776 (when the office of sheriff first became a constitutional one), and statutory enactments leading up to the adoption of the 1897 Delaware
Constitution in concluding that sheriffs have no constitutional law enforcement powers.
Then, finally, the authority of the Cash Management Policy Board vs. the authority of the State Treasurer:
While the General Assembly has explicitly granted expansive authority to the CMPB as the administrative agency empowered to make investment decisions, it has simultaneously expressly limited the authority of the State Treasurer. In 1981, the General Assembly enacted Section 2716(e)(l) of Title 29, which states in relevant part that “[t]he investment of money belonging to the State shall be made by the State Treasurer in accordance with policies established by the Board and subject to the terms, conditions and other matters, including the designation of permissible investments relating to the investment of the money belonging to the State …. ” Last year, the General Assembly reiterated this restriction with the insertion of the
following epilogue language in the fiscal year 2013 budget bill: “[F]unds under the custody of the State Treasurer shall be invested consistent with [the CMPB] guidelines.” As a substantive measure enacted by the General Assembly in an appropriations bill, the epilogue language has the full force and effect of law. 36 Section 2716( e)( 1) and the 2013 epilogue language explicitly direct the State Treasurer to invest State funds only in accordance with the CMPB investment policies and the Guidelines.
So now the AG makes clear what pretty much everyone else understood — that the CMPB directs the investments of the State’s cash accounts and the Treasurer executes on the consensus decision. Chip Flowers has lost this critical round — largely because he thought that he could ignore what the statute said and just bully his way into some additional authority. It is a shame, really, because better political chops might have helped here. This was always a problem that needed the help of the Governor and the GA and Chip Flowers sought the help of neither. Not exactly forward looking politics, much less the kind of consensus-building this kind of major policy change would need to happen.
Flowers talks to WDEL and tells them that the AG’s decision is “non-binding”, “peculiar” and “corrupt”. Odd characterizations from someone who can’t quite figure out how to 1) manage his travel budget and 2) abide by the State’s travel policy. I suppose he could take the State to court, much like Sheriff Christopher did, to get another opinion — but I’d bet he won’t. He is at the end of the utility of his bluster and unless he can figure out a better path forward, probably at the end of this crazy usurpation of power. The continued insistence that somehow he is a bulwark of cronyism is completely dead — especially since the cash managers prior to Flowers is pretty much the same as those after Flowers. The cronyism might be there — but the way to address it certainly was not to just claim authority the legislature and the Constitution never gives you. This works for Tea Partiers and certain left-leaning Democrats who fancy themselves aligned with those who are “fighting the power”. They’re never going to care whether you are *effectively* doing that or even doing that within the law.
I’m betting that this (and the Travel business) has gone too far for Chip to learn something and readjust his approach or position. The bluster and the posturing is just too deeply baked in the cake for genuine lessons learned. He’s been arguing with the Governor and now it looks like he is expanding the field to the Attorney General. I do think that this decision ought to give the GA some genuine comfort that they are absolutely in the clear in taking up last year’s legislation clearing up the role of the CMPB. Not that Chip Flowers will get it, but he’ll have much less room for the bluster in the room.
And I still think he ought to resign over not being able to manage his travel budget.
Thanks to Anonymous Tipster.