June 22, 2018
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Shutdown over, but Maine’s ‘civil emergency’ still in effect, for now

Mario Moretto | BDN
Mario Moretto | BDN
Gov. Paul LePage speaks with reporters outside his office at the State House on Thursday, Oct. 10.
By Mario Moretto, BDN Staff

AUGUSTA, Maine — Congress may have come to a deal to end the 16-day partial federal government shutdown and avoid a scenario that could have led to a national default, but the “civil emergency” declared last week by Gov. Paul LePage is still in effect.

The governor’s emergency authority is “still being used as an administrative tool” in an effort to ensure an orderly transition back to normal government operations, LePage spokeswoman Adrienne Bennett said Thursday morning.

But the Maine State Employees Association, the largest union representing state workers, said continuing the state of emergency is unnecessary. Top Democrats also called for LePage’s emergency declaration to be rescinded.

About 100 state employees were laid off during the shutdown because their salaries were funded by federal dollars that had stopped flowing from Washington. LePage has said he declared the civil emergency in an attempt to aid state workers by circumventing a union contract that did not anticipate a government shutdown.

The governor’s office announced Thursday evening that all laid-off or displaced federally funded state employees would be back on the job Friday, but their return is not a result of a deal with the state workers’ union.

“It is unfortunate that we were unable to execute an agreement with the union, but they were dragging their feet, and we couldn’t wait any longer,” said LePage in a prepared statement. “The most important thing is to get Mainers back to work in their original jobs, and that’s what we’re doing.”

LePage said he made the decision to call back all affected workers after receiving confirmation that the federal government would reimburse Maine for all affected workers.

Bennett said the continuation of the civil emergency is still necessary because things wouldn’t go back to normal immediately.

“We don’t automatically have the ability to draw down [federal] funds,” she said. “We need to be certain we can make these [laid-off] employees whole, that they get any benefits they’re entitled to.”

But Chris Quint, executive director of the MSEA, says maintaining a state of emergency now is “perplexing and confusing.”

Democratic leaders in the Legislature also called on the governor to rescind his emergency declaration.

“Since Day One we have asked Gov. LePage to narrow the scope of his civil emergency so that his scope of power was transparent to all of us. Today, his civil emergency is unnecessary and to continue with it is perplexing,” said Senate President Justin Alfond of Portland.

All parties say their goal is to return to the state government as it was before the shutdown, with all employees back in their original positions. The sticking point has been whether the union’s current collective bargaining agreements will facilitate that return to normalcy, as the union says it will, or whether a separate, temporary agreement must be struck, as the administration claims.

Part of the deal struck Wednesday night by Congress includes a provision to provide full back pay to state employees displaced by the shutdown, and reimburses states for expenses incurred during the shutdown that would normally have been paid by the federal government.

Quint said that’s reason enough to end the civil emergency. The union’s contract includes provisions for recalling laid-off workers to their original positions, he said.

“This is why we have a collective bargaining agreement,” he said. “Our collective bargaining agreement allows people to return to their job. You don’t need a civil emergency declaration to do that. The federal government didn’t need a civil emergency and their workers are back at work today.”

Quint said that 55 workers in the Department of Health and Human Services who were laid off because of the shutdown were already back at work Thursday. He said those workers being back on the clock shows the state of emergency is no longer necessary.

It’s unclear, though, exactly when the states will be made whole. A spokeswoman from the U.S. Office of Personnel Management said that federal employees — such as Acadia National Park rangers — would be reimbursed for back pay in the Oct. 25-29 pay period.

However, it’s not clear when other revenue streams — grants that fund state employees, for example — will resume their flow.

Julie Rabinowitz, spokeswoman for the Maine Department of Labor, which is 97 percent federally funded, said different revenue streams are drawn down on different schedules. So, an exact reimbursement date is up in the air. Either way, she said it would be at least 24 hours before the computers that process disbursement in Washington, D.C., are back online.

“We can’t draw until the system is online with the budget allocation there,” she said. “Hopefully it will be as soon as possible. Everyone I know is working on this.”

Another question involves the practice of “bumping,” a provision in the union contract that allows state employees with seniority to revert to a position they held earlier in their career rather than being laid off, which causes the person currently holding that position to be “bumped” out of a job, taking the layoff instead.

It gets complicated when such displacement cascades — if senior employees bump the person under them, who bumps the person under them, and so forth. Quint said the union’s current contract can address displacement.

“There has been some bumping, but it’s been very minimal,” he said. “There is language in our collective bargaining agreement, which the governor and we agreed to this year, that establishes a process for recall rights.”

Bennett said that under the current contract, more than 10 employees — employed in the state’s departments of labor, veterans affairs, and health and human services — would not have been allowed back into their previous positions under the union contract, and would be stuck in their “bumped” job.

Plus, she said, the existing process to recall employees can take up to a week, which isn’t fast enough, she said.

“Our proposal is to let them go back to their jobs immediately,” she said. That’s what we need.”

Follow Mario Moretto on Twitter at @riocarmine.

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