Bruce Rauner
Bruce Rauner
Lisa M. Madigan
Lisa M. Madigan

SPRINGFIELD — Without an annual spending roadmap as a new fiscal year begins, the governor this week said he would work to make sure public employees’ paychecks are not delayed.

But the state’s top lawyer countered that message Monday, saying the Illinois Constitution and statutes “severely constrain” payments in the absence of a state spending plan.

The debate among executive branch officials comes as legislators were slated to hold hearings today on the effects of a partial state government shutdown, set to take effect with the start of a new budget year at midnight.

Republican Gov. Bruce Rauner, who has insisted lawmakers approve business-friendly elements of his agenda before he accepts a budget, told state workers in a memo Monday his legal team is working to make sure they don’t miss any paydays.

“The precedent already exists. This is the right thing to do and I will work with union leaders to fight any legal attempts to overturn existing precedent,” Rauner said in the memo.

“If certain parties take action to temporarily block pay for state employees, we will explore every option, including asking local financial institutions to extend temporary bridge loans to employees.”

Today, Rauner said the precedent occurred during a similar stalemate in 2007 during the Rod Blagojevich administration.

“There was an agreement among the unions, the administration, the attorney general to have folks paid their full salaries,” he said at a news conference. “We want to have the exact same thing happen again as it did in ’07 where everybody’s paid so we can minimize the disruption to the people of Illinois while we work through our budget issues and our reform issues.”

But Attorney General Lisa M. Madigan issued a statement that contradicts Rauner’s stance.

She said in 2007, payments were authorized to state employees with respect to the federal Fair Labor Standards Act.

The law mandates some employees — “blue-collar workers” such as mechanics and electricians, first responders such as police and firefighters and clerical workers, among others that can be designated as such by various agencies — must be paid on time at the federal minimum wage level, even without a budget in place.

But state offices were not ready to divvy out that amount to that limited category of employees at the time, so a court temporarily allowed full payments for offices that couldn’t comply with the federal law.

Rauner said today his staff is meeting with the attorney general’s staff to see if they can pay employees in full anyway.

“I believe we’ll work this out,” he said.

But there are other legal dimensions to consider, Madigan noted.

“While there are limited payments that the comptroller is authorized to make in the absence of a state budget, Illinois law is clear that the state cannot continue to fund all government operations and services in the absence of a budget passed by the legislature and signed into law by the governor,” Madigan’s statement said.

Madigan cited Section 9 of the State Comptroller Act, which prohibits the comptroller from writing checks that are not “pursuant to law and authorized,” as well as Article 8, Section 1 of the constitution, which says the state shall make payments from public funds “only as authorized by law or ordinance.”

Madigan also invoked a 4th District Appellate Court case from 1991 that said any effort by a comptroller to dispense funds without an appropriations bill signed by the governor “would create obvious problems under the separation-of-powers doctrine.”

That case was AFSCME v. Netsch, in which a budget impasse that year compelled the state’s largest public employee union to file a mandamus action that would force then-Comptroller Dawn Clark Netsch to pay employees — even without appropriations bills.

The employees in the case sought to tie the State Comptroller Act and the constitution’s Article 8 together, saying the administrative guidelines on paying employees in the statute qualify as the authorization for payments referred to in the constitution.

But in a per curiam decision, the appellate court justices wrote that they didn’t read the statute that broadly.

“Stated simply, when [s]tate money has once been received by the [s]tate [t]reasurer, the constitution prevents its withdrawal except in pursuance of an appropriation made by law,” the opinion states.

Madigan’s office said the decision had clear implications for the current budget situation.

“As the Netsch court clearly stated, the Illinois Constitution and statutes prevent the comptroller from continuing to pay expenditures, including the state’s payroll, without a budget, and even a court cannot order all of these payments to be made,” Madigan’s office said.

The Netsch decision may be familiar to observers of recent state government history. The case was also invoked by former comptroller Judy Baar Topinka in 2013 when she reluctantly went along with then-Gov. Patrick J. Quinn’s veto of legislator salaries. Topinka died unexpectedly in December.

She didn’t hide her displeasure toward having to effectuate Quinn’s salary veto.

“Threats, blackmail and inertia may be good theater, but it makes us look ridiculous and takes away from our ability to get things done,” she said at the time.

Quinn, whom Rauner defeated in November, was trying to force legislators to send him reforms of the state’s pension systems.

Cook County Associate Judge Neil H. Cohen ultimately ruled the maneuver unconstitutional and ordered the comptroller to send checks to lawmakers.