One Of Our Readers Makes A Great Case For Vetoing HB 355

To me, his logic, and grasp of Delaware Constitutional Law, is unassailable:

I write to you about House Bill No, 355 that will soon be on your
desk for approval. HB 355 – in its central part – changes the
composition of the members sitting on the Board of Directors of the
Fort DuPont Redevelopment and Preservation Corporation (FDRPC).
The FDRPC is the governmental instrumentality (created in 2014) that
is charged by law with managing, overseeing, and implementing the
redevelopment of the State-owned Fort DuPont lands into a “mixed
use community.”

HB 355 passed both Houses with almost no nay votes. But I
urge you to veto the bill. My objections are not about whether the
Fort DuPont redevelopment goals are good or bad, or whether the
FDRPC is the right vehicle to achieve them. Instead, HB 355’s fatal
flaws are in the bill’s provisions changing the membership of the
FDRPC’s Board of Directors. Those new provisions:

(a) run counter to the plain text of Article II, § 14 of our State’s
Constitution;
(b) ignore that Constitution’s directions that the General
Assembly can only exercise its legislative powers (including
the appointment power) under the procedures set forth in
Article III, § 18; and
(c) transgress the separation of powers principle that
“exists in this State as a fundamental in our Constitutional
law.”

But the second clause of Article II, § 14 of our State Constitution
prohibits sitting members of the General Assembly from concurrently
holding any ”office under this State.” State ex rel. Corley v. Biggs,
172 A. 415, 419 (Del Court en banc 1934); Advisory Opinion, 722 A.2d
at 317-18. The underlying purpose of this “Incompatibility Clause” is
“to take care that those chosen to represent the people in the
Legislature should be representatives and nothing more,” Corley, 172
A. at 419 (emphasis added). Or as the Advisory Opinion said more
than twenty years ago: the Clause “is intended to maintain that
tripartite balance of power among the branches of government by
precluding more than one of those separate sovereign functions to be
performed by the same person.” 722 A.2d at 318-19.
Here there is no question that, despite its corporate name and
facade, the FDRPC is not a private entity but a government instrumentality exercising governmental sovereign authority.
Subsection 4733(a) of the FDRPC’s enabling act says just that: the
FDRPC Is “established within” DNREC, not just a “body corporate and
politic,” but as “a public instrumentality of the State,” “created for the
purpose of exercising essential governmental functions.” 7 Del. C. §
4733(a) (emphasis added). FDRPC is not just a component of
DNREC but that cabinet-level agency is FDRPC’s sole member. 7
Del. C. § 4733(a). In addition, the FDRPC’s corporate charter cannot
be changed without approval from the General Assembly. 7 Del. C. §
4733(a). And the whole purpose of the FDRPC is to manage,
oversee, and implement the redevelopment and preservation of the
State-owned property and lands in the Fort Dupont complex in a
manner consistent with the legislatively-ratified “Redevelopment Plan”
and the legislative instructions set forth in the enabling act. 7 Del. C. §
4731(4).

Even without this declaration in the enabling act announcing the
FDRPC’s bona fides as a governmental agency, the whole structure of
the FDRPC (now augmented by HB 355) reflects its governmental
status. Under HB 355, twelve of the thirteen directors on the Board of
Directors will either be State executive officials, legislative members,
or persons appointed by legislative members or by the Governor.
New 7 Del. C. § 4733(b). The Controller General – an agent of the
General Assembly – will be the FDRPC’s Treasurer, overseeing its
finances. New 7 Del. C. § 4733(h). FDRPC (and its Board) will be
“public bodies” for FOIA purposes. New 7 Del. C. § 4733(h). And a
host of other statutory amendments made by HB 355 impose specific
restraints on the actions of the FDRPC, its Board, and its directors.
New 7 Del. C. §§ 4733(e)(1)-(3); 4736. Finally, each year the FDRPC
will have to submit a detailed annual report and audit to both the
Governor and Bond Committee chairs reporting on the instrumentality’s finances and some of its particular activities. New 7
Del. C. § 4738. Compare Dept. of Transp. v. Ass’n of Am. Railroads,
575 U.S. 43, 50-54 (2015) (for purposes of the federal Constitution’s
separation of powers provisions, the Amtrak corporation acts as a
governmental entity because it was “created by the Government, is
controlled by the Government, and operates for the Government’s
benefit.”).

So too, the directors of the FDRPC Board are State “officers;”
their “powers and duties of position are conferred and defined by law.”
Advisory Opinion, 722 A.2d at 311. As said before, the FDRPC is
charged with managing, overseeing, and implementing the
redevelopment of State property. And, by law, the “power and
management” of the FDRPC is “vested” in the Board and its directors.
7 Del. C. § 4733(b). And in making decisions about the ultimate use
of the State owned lands in the Fort DuPont complex, those directors
are – independently – exercising “some portion of the State sovereign
power.” Advisory Opinion, 722 A.2d at 312 & nn. 23-25. As such, the
directors on the Board – including the two Bond Committee chairs –
easily fall within the scope of persons holding “office under this State”
as that term is used in the Incompatibility Clause. Compare Ass’n of
Am. Railroads Amtrak, 575 U.S. at 64-66 (Alito, J., concurring)
(acknowledging that President of Amtrak is a “federal officer” and
noting problems with applying the federal constitutional Appointment
Clause to that position). Compare also Free Enterprise Fund v.
Public Co. Accounting Oversight Bd., 561 U.S. 477, 510 (2010) (“independent” PCAOB corporation was a government entity and its
Board members were federal officers).

As such the new provisions in HB 355 which add the Bond
Committee Chairs as directors on the FDRPC Board run directly
counter to the prohibition imposed by the Incompatibility Clause. In
fact, the violation is an even more troublesome violation of the
separation of powers principles underlying our State constitution. If
the executing agency – the FDRPC – were to decide to seek funding
from the General Assembly, presumably its Board – including the two
Bond Committee chairs – would have to decide whether to sign-off on
pursuing such a funding request. But if the Board pushed ahead, then
those same two legislators would likely then sit in judgment in the
General Assembly on whether to exercise the legislative branch’s
power of the purse, grant the request, and open up the State’s
pocketbook to the FDRPC. Such “combination of those two
sovereign functions in one person is antithetical to separation of
powers between the three branches of government in Article II, III, and
IV of the Delaware Constitution of 1897.” Advisory Opinion, 722 A.2d
at 318.5

The provisions of HB 355 appointing the Bond Committee chairs
as directors of the FDRPC Board directly transgress the plain text of
Article II, § 14.

Article III, § 18 and the Separation of Powers: Appointment of
FDRPC Directors by Legislative Leaders

HB 355 also will now empower the Speaker of the House and the
President Pro Tempore of the Senate to each appoint a member to the
FDRPC Board of Directors. New 7 Del. C. § 4733(b)(10), (11).
Of course, the General Assembly holds – exclusively – the
legislative power. And (in contrast to its federal cousin) the Delaware
Constitution includes within such legislative power the ability to
appoint particular persons to fill statutory offices in State executive
agencies. See State ex rel. Craven v. Schorr, 131 A.2d 158, 162-64)
(Del. 1957).
But it is also a given that the General Assembly can only exercise
any of its legislative powers by one particular regime: passage by both
Houses and presentment to the Governor. Del. Const. Art. III, § 18.
Outside its own chambers, the General Assembly can only speak via
such bicameral and presentment process. Compare Metropolitan
Washington Airports Authority v. Citizens for the Abatement of Aircraft
Noise, Inc., 501 U.S. 252, 274 (1991) (“CAAN”) (“And, when
[Congress] exercises its legislative power, it must follow the ‘single,
finely wrought and exhaustively considered procedures’ specified in
Article I.”). The necessary corollary to that constitutional requirement
is that the General Assembly cannot delegate any component of its
legislative powers to its individual members or any group of its
individual members. Compare CAAN, 501 U.S. at 274 (“. . . Congress
may not delegate the power to legislate to its own agents or to its own
Members.”)

That’s the flaw with the new subsections 4733(b) (10) & (11).
They delegate to the two legislative leaders the General Assembly’s
legislative power to make appointments to statutory executive offices.
Under the new subsections it is not the General Assembly appointing
directors, using the specific process set forth in Article III § 18. Rather
those subsections delegate to two individual members of the General
Assembly the power to appoint. But just as with any legislative power,
the legislative power to appoint held by the General Assembly cannot
be doled out to the legislature’s individual members, even if they might
hold leadership positions.
Nor can the subsections be saved by viewing them as
permissible delegations of the executive power of appointment to the
two legislative members to be exercised by them – not as agents for
the General Assembly – but rather as simple “State officers” granted
the same delegated appointment power routinely given to others in
executive branch agencies. The problem with that construct, as
explained initially, is that Article II § 14 bars sitting legislative members
from acting as “State officers” exercising any such executive
appointment function.

The provisions in HB 355 appointing the Bond Committee Chairs
as directors of the FDRPC and delegating to the legislative leaders
the executive power to appoint two further directors run afoul of the
separation of powers restrictions written into our State Constitution.

To protect the prerogatives of the Executive Branch which you head,
you should veto HB 355.

Sincerely yours,
Gary Myers

I’ve eliminated some case citations and footnotes that are also part of the letter. Also, contact information.  Kids, here’s the dirty secret:  If Carney wants to sign a bill, he will either sign it or have his lawyers find a justification to sign it.

If he wants to veto it (you know, let’s say legalized marijuana), he’ll have his lawyers find a legal pretext to do so. 

Carney has frequently railed against ‘intellectual dishonesty’.  He will be engaging in it if (actually, when) he signs this legally-flawed legislation.