This post appears here courtesy of the Carolina Journal
. The author of this post is CJ Staff
A state senator tried without success Wednesday to get Gov. Roy Cooper's nominee for state controller to answer "yes"
on three questions. Each stemmed from the same query: Would he go along with a court order to transfer money out of the state treasury in the Leandro school-funding legal dispute?
Questions from Sen. Ralph Hise, R-Mitchell, arrived near the end of an hourlong confirmation hearing for Nels Roseland, who serves now as Cooper's deputy state budget director. The governor has nominated Roseland to replace current State Controller Linda Combs. Combs retires on June 30 after serving for eight years.
Combs has been fighting a trial judge's order to transfer money from the state treasury to fund part of a court-ordered comprehensive remedial plan tied to the Leandro lawsuit.
"For specificity, if the [state] Supreme Court were to order a transfer of money from the treasurer in Leandro - a transfer that would not be made in consequence of an appropriation made by law - would you make the transfer: Yes or no?"
"Sir, I am not a lawyer. I am not a constitutional law expert,"
Roseland answered. "I am a student of government and effective fiscal models. I support the current fiscal model."
"I'm required to follow the law. I will follow the law,"
"At some point, you would be forced to make the decision to make the transfer or not,"
Hise responded. "Would you make the transfer?"
"The questions presented to the Leandro case ... The struggle involves the legislative branch has a disagreement with the judicial branch,"
Roseland answered. "When I look at Chapter 143 [of the N.C. General Statutes] and the duties of the state controller's office, being the mediator between two branches of government is not a core function of that office."
"I respect ... and I've always, in my training and my financial acumen in government public finance, ... the driving force for the financial transactions is the legislative appropriations process,"
Offering Roseland "one final opportunity"
for a yes-or-no answer, Hise asked, "As an officer of the state, you do and would take an oath to uphold the constitution of the state of North Carolina. As an officer of the constitution, would you make the transfer if ordered to by the courts?"
"Sir, I would follow the law. I'm required to follow the law,"
Roseland answered. "It is my position and the position of the current state controller to not be a party to a fight to try and mediate the legislative branch and judicial branch disagreements."
Hise followed Roseland's answer with his own assessment of a court-ordered money transfer. "I would submit to all that such an order by any court would be a sweeping expansion of the judiciary authority,"
Hise said. "For the first time in our history, we would have a court claiming for itself the power of the purse."
"I am proud that to this point our controller has stood for the constitution and ... stood up in court and refused to make those transfers,"
Hise said. "It would be my expectation that you would do the same."
Roseland did not completely avoid Hise's Leandro-related inquiry. Before the sequence of specific yes-no questions, Hise asked, "If confirmed, do you intend to carry on Dr. Combs' legal position on Leandro?"
Hise had started his eight minutes of questions for Roseland by declaring, "The North Carolina Constitution states that no money shall be drawn from the state treasury but in consequence of an appropriation made by law."
Hise asked the nominee for his reaction to that statement.
"The daily work of the state controller's office is driven by the legal parameters of your annual appropriations bill and your supplemental appropriations bills,"
Roseland said. "The legislature, with the power of the purse, is critical to the effective running of state government. The governance business model where the legislature establishes appropriations - and the executive executes, disburses, manages those appropriations - is a highly effective business model that I fully support."
Roseland said he had discussed the Leandro case with Combs. Hise asked whether the nominee also had discussed the case with Cooper.
"The governor has given me no specific direction on this case, sir,"
Roseland said. Asked whether Cooper had an expectation that Roseland would take a particular stance on the Leandro case, Roseland responded, "Absolutely not."
Combs has played a leading role in the most recent skirmish of the 28-year Leandro case. When Superior Court Judge David Lee ordered the controller last November to take part in the transfer of $1.75 billion from the state treasury for education-related spending, Combs objected.
She secured a rare "writ of prohibition"
from the N.C. Court of Appeals. The writ blocked Lee's order. Appellate judges had agreed with Combs' argument that a judge could not order her to move money without legislative approval.
That issue sits now with the N.C. Supreme Court. A later trial court order whittled the size of the potential transfer down to $785 million. But the state's highest court could decide whether Lee had the power to force the controller, state treasurer, and Office of State Budget and Management to move money without legislative input. Oral arguments in the case are set for the week of Aug. 29.
Senators took no vote Wednesday on Roseland's confirmation.