Governor concedes lack of authority

JEFFERSON CITY, Mo. -- "Will I or won't I be forced to pay service fees to a union I choose not to join?" asks Cliff Coan, a Missouri state corrections officer.

The administration of Gov. Bob Holden has yet to answer that question.

And a recent motion filed by Attorney General Jay Nixon makes the issue even more ambiguous.

On June 29, Holden issued Executive Order 01-09, which, he claimed, "established collective bargaining" for state employees working in agencies under his direct control.

In various Web postings and press releases, the governor and his agencies also informed state workers that the executive order established such collective bargaining.

In response, a group of concerned organizations, elected officials and affected state employees filed suit, contending that the governor did not have the constitutional authority to establish collective bargaining for state employees, and that only the Missouri Legislature can set wages and terms of employment for state workers.

That lawsuit, which named Holden as the defendant, sought to have Executive Order 01-09 declared to be unconstitutional and unenforceable.

On Oct. 24, the attorney general's office filed a response to the lawsuit on behalf of Holden, asking the court to dismiss the proceeding.

Amazingly, the primary basis for the governor's requested dismissal is a claim that the executive order does not actually establish collective bargaining after all.

Rather, the brief claims that, despite the earlier statements from the governor's office, the executive order was merely an internal memorandum from the governor to his agencies, indicating the governor's desires as to how the agencies should operate if the existing laws would allow it.

The governor's brief says that Executive Order 01-09 is merely an "executive branch directive," which is not a law and which is not legally enforceable.

Thus, the governor now concedes that he did not have the authority to impose or establish public-employee collective bargaining through Executive Order 01-09, despite what he told the employees of the agencies under his control and the citizens of our state.

The governor's current legal position raises some disturbing questions.

Why would the governor take a public position in the media and on his Web site that misconstrues his executive order?

Did the governor know all along he was making promises he had no power to keep?

In this instance, the actions of the administration are much like those of a magician. It's all smoke and mirrors.

But which statements are we to believe?

The original statements, which said that the executive order has the force and power to establish a new program that permits public employee collective bargaining?

Or the new statement, which says the opposite?

Now, more than ever, Missourians need and deserve clarification of the governor's executive order.

It is up to the courts to make it clear.

Kelly Gillespie heads up the Coalition to Repeal Executive Order 01-09 and is vice president of governmental affairs for the Missouri Chamber of Commerce. Members of the coalition are the Missouri State Teachers Association, Missouri Farm Bureau, Associated Builders and Contractors, National Federation of Independent Business, Missouri Merchants and Manufacturers Association, Associated Industries of Missouri and the Missouri Chamber of Commerce.