May 7, 2011
Utah State Senate
Utah State Capitol, Suite 320
Salt Lake City, UT 84114-5115
Dear Senators,
As
you meet this evening to discuss HB 328, I want to share two thoughts
with you. First and foremost, let me reaffirm my support for providing
enhanced services to the public. Providing the best for the citizens of
Utah is a goal we all share and I agree that making critical,
public-facing services available on Friday is part of that goal. My veto
of HB 328 is based on the simple fact that opening state office
buildings an additional day per week has real costs, such as electricity
and maintenance. Although a fiscal note of approximately $820,000
annually was submitted to HB 328, this fiscal note was not included with
the bill as it passed through the legislative process. Since no funding
was appropriated when the bill was passed, I did not feel I could sign a
bill putting an unfunded mandate on the state (which we all certainly
do NOT like to receive from the federal government). Because I agree
with the concept of enhanced service, I worked with the bill sponsor to
create an Executive Order directing critical, public-facing services to
be available on Fridays by person, online, or by phone. The purpose of
the Executive Order is to continue to provide excellent customer service
within budgetary constraints.
Since yesterday morning when the
potential for a veto override of HB 328 was unexpectedly raised, I asked
the analysts in GOPB to begin working with analysts in LFA to identify
their collective best estimate of the associated cost of HB 328. After
working yesterday and today, I understand the identified fiscal impact
is approximately $790,000. I have also been informed that because
funding for these particular costs come from the Internal Service Fund,
that the funding would not necessarily be appropriated with passage of
the bill (or in this case a veto override). Rather, the money will be
appropriated to the Fund as needed, as the actual costs are realized. As
long as the Legislature recognizes there is a cost associated with
opening buildings an additional day, and that cost will be funded one
way or another, then the Executive Branch will continue to provide the
best service we can for the funding we receive.
Second, let me
address some constitutional comments raised during the House debate on
HB 328. Before I do so, however, please know that I do not believe that
the
discussion around HB 328 should be about the constitutionality
about the original “Working 4 Utah” Executive Order. As I stated above
the discussion and the reason for my veto is and should be about
funding. Nevertheless, since the question of constitutionality was
raised (specifically that the Order violates Article XVI, Section 6 of
the Utah Constitution) let me share with you that my General Counsel has
informed me that the courts have not interpreted this provision outside
of the context of factories, smelters and mines. Common understanding
of this provision is that it does not forbid the state from establishing
flexible work schedules or from asking employees to work more than
eight hour days. It is difficult to believe that a court would construe
this language to mean that the state and its subdivisions are
constitutionally forbidden from asking employees, be they a public
safety officer, a firefighter, a doctor at the University Hospital or an
agency head, to work more than eight hours in any given day.
This
interpretation comports with the apparent Legislative understanding of
this provision. Until 1969, Utah Code Sections 34-3-1 and 34-3-2
provided for an eight hour work day. In that year, the Legislature
repealed that section and added Utah Code Section 34-30-8 which provides
“forty hours shall constitute a working week on all works and
undertakings carried on by the state, county, or municipal governments,
or by any officer of the state or of any county or municipal
government.” In light of this history, there is no reason to conclude
that a court would find the four day, ten hour schedule to be
constitutionally infirm.
Some comments suggested that the
Governor lacked the authority to implement a four day work week. Article
VII, Section 5 of the Utah Constitution invests the Governor with the
power to “see that the laws are faithfully executed.” Utah Code
recognizes that authority and echoes that the Governor “shall supervise
the official conduct of all executive and ministerial offices.” See Utah
Code Section 67-1-1(1). In light of the Constitutional power to execute
the laws, and statutory authority to supervise all executive offices,
there can be no doubt that the Governor possesses the authority to issue
an Executive Order regarding the hours of operation for state offices.
Thank
you again for your consideration as you deliberate on this important
matter. I look forward to working with you to keep Utah the “Best
Managed State”.
Very Truly Yours,
Gary R. Herbert
Governor, State of Utah
