Why the governor’s appointment powers should be limited.

View the original article in The News and Observer by clicking here. 

Six proposed constitutional amendments are on the ballot. Two are controversial within the Republican Party, which authored them. One shifts the power to nominate members of the state Board of Elections and Ethics to the legislature (the governor would choose from a list provided by the legislature); the other gives the legislature a role in filling judicial vacancies.

If I had not chaired a commission that was at the vortex of former Gov. Pat McCrory’s blitzkrieg to preserve executive powers, I would vote differently on the Board of Elections amendment. Having served in the executive branch in Washington for President George H.W. Bush, my inclination would be to leave things the way they are. But my experience in North Carolina is testimony as to why a single person, with tentacles in political matters that can impact them personally, should not control independent boards and commissions.

In 2014, Gov. McCrory appointed me chairman of the N.C. Coal Ash Management Commission, not an enviable position. It is a role I did not seek and accepted entirely as public service.

The legislature created the Coal Ash Commission to save the governor from himself. McCrory had spent essentially his entire career working for Duke Energy; he was clearly not the person to oversee what was projected to be up to a $10 billion initiative that had the potential to significantly impact Duke’s financial stability and stock price.

So lawmakers created an independent commission of nine people to oversee the cleanup process. The House and Senate were each allotted three seats, as was the governor, who had the authority to select the commission chair.

The night before the commission’s first meeting, in a strategically timed legal maneuver, McCrory filed a lawsuit against the commission and the six commissioners he did not appoint, seeking to abolish the Coal Ash Commission and two other commissions.

During the time the Coal Ash Commission existed, I never once got the sense the governor’s motivation was good governance. His handlers seemed to be driven by a desire to manage a politically explosive issue, given the reelection campaign on the horizon. The Dan River spill had been a featured story on 60 Minutes, and coal ash was McCrory’s greatest vulnerability (until his ill-fated embrace of HB2.)

It was clear the governor’s office wanted to control — not support — the “independent” commission from the start. They offered up someone from the Department of Public Safety, who didn’t know the first thing about the subject matter, to be my chief of staff. Instead, I selected a very highly regarded member of the state Department of Environment and Natural Resources staff who was a former student of mine; I knew she would do a superb job of managing the Commission staff and interfacing with Duke and DENR.

Then I chose as my general counsel a talented lawyer who had previously worked in the environmental section of the Attorney General’s office. She was extremely well respected and trusted by environmental groups, who were a key stakeholder.

I asked each of the six commissioners appointed by the legislature which lawmaker had sponsored them and what expectations, if any, had been communicated. To a person, every commissioner said they were not selected with any conditions whatsoever.

The commissioners and staff were both independent and competent. Over the 18 months the commission existed, we received full support and cooperation from Duke Energy, most environmental groups, and the legislature, but not from the governor’s office. Commissions and boards that are supposed to be independent should not be under the thumb of a single individual.


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