Below is a summary of the research found addressing the power and authority of

Governor LePage to intervene in Milas child protective services case ordering that
DHHS substantiate abuse of Mila by her father based on the Spurwink finding and
enforce all of all Spurwink's strongest recommendations.
I.

EXPERT OPINIONS ON EXECUTIVE AUTHORITY GENERALLY

A number of authorities on executive power and authority, including professors at various

universities, some of whom have published on the subject, all have agreed that a
Governor, like a President, may dictate actions to be taken by an agency within the
executive branch. One such expert said that it is a well known principle that the
Governor is the CEO of the Executive and can order anyone in the executive branch to
do their job. In particular, because governors have the power to fire their appointees, it is
implicit in that power that they may tell them what to do. See Myers v. U.S., 272 U.S. 52
(1926)(upholding Presidents power to fire executive appointee).
One professor stated that in the federal context, so long as the agency is within the
executive branch and not treated as an independent agency, the president could simply
order the agency head to take the desired action, adding that this principle was not
really controversial nowadays. Another professor emphasized that the power to fire or
remove contains the power to require specific action, and was surprised to hear there was
any doubt about the matter.
Thus, in Executive Orders and Administrative Control, Professors Ferguson and Bowling
state: As chief executives, governors must have control of the executive branch in
order to effectively administer state government. Ferguson and Bowling, Executive
Orders and Administrative Control, Public Administration Review, Dec. 2008, Special
Issue, p. S20. They note that the Winter Commission calls for stronger leadership by
governors. Id.
The National Association of Governor's issued a brief, "Nine Things Governors Can Do
to Build a Strong Child Welfare System" - which underlines how important improving
CPS practices and protecting children from abuse is to governor associations and
governors generally.
The Council of State Governments Book of the States (2004) discusses the use of
executive orders as the exercise of Governors responsibility to see that the laws are
faithfully executed. Id. at S22. Of particular relevance here, the above study found that
13 percent of executive orders in 2004 and 2005 directed state agencies to
perform particular tasks, add to an existing programs responsibilities, or
otherwise conduct the states business. All states in our study exhibited some
evidence of this administrative practice. . . . executive orders may be a very
common way for new governors to accomplish some level of administrative
reform or control.

Id. at S26. In short, the authors of the study concluded, after studying the use of
executive orders in 49 states over two years, that most such orders are substantive in
nature, including directing particular executive action. Id. at S27.
II.

MAINE LEGAL AUTHORITY

The Maine Constitution (available at http://maine.gov/legis/const/), Article V, Section

10 states, in pertinent part, The Governor may require information from any military
officer, or any officer in the executive department, upon any subject relating to the duties
of their respective offices. Article V, Section 12, states, in pertinent part, The Governor
shall take care that the laws be faithfully executed.
It is clear from these provisions that the Governor has the duty and responsibility to
ensure that laws shall be faithfully executed. Without the right to intervene in individual
cases such as Mila's, this duty would be difficult to fulfill. Moreover, the Governor has
an explicit right to require information regarding any matter in the executive
department, and this right would be meaningless if he is unable to act on the information
he receives by instructing the agency regarding action.
A leading Maine legal commentator has stated that anything pending before an executive
department is also pending before the governor," Tinkle, The Maine State Constitution:
A Reference Guide 104 (1992)
In State v. Simon, 149 Me. 256 (Me. 1953), the Defendant, who was charged with bribing
the Governor, argued that the charges in his indictment were not offenses under the
bribery statute because "(1)...the Governor had no official or executive capacity,
authority or legal duty, either at common law or under the bribery statute, over the matter
concerning which the bribe was allegedly offered; and (2) [t]hat if he did have such
official capacity and legal duty, it is not properly alleged in any count in the indictment."
The Maine Supreme Court held that [e]ach count stands as a valid and sufficient count
on the general principle that everything pertaining to the executive department of the
State, and more particularly in this instance to the maintenance of our highways, is at all
times a matter pending or a matter which may legally come before the Governor in his
official capacity. Id. at 265, emphasis added. The Simon court also stated, [t]he eyes of
the Governor are at all times open upon the activities of the executive department.
Nothing officially escapes his attention. Id. at 264.
Another example of Maines grant of broad powers to its governor can be found in its
grant of gubernatorial power to remove judges by address of two thirds of both houses of
the legislature.
www.judicialselection.us/judicial_selection/methods/removal/of/judges.cfm?state .
Other states providing this authority to the governor include Texas, South Carolina, New
Hampshire, Michigan, Massachusetts, Maryland, Connecticut, and Arkansas. Id.

The breadth of the governors power as the chief executive of the executive branch was
recently affirmed in Maine in the case concerning the Governors removal of a mural
from the department of labor, ruling that it was a permissive exercise of gubernatorial
authority. http://www.pressherald.com/news/removal-of-mural-was-legal-judgesays_2011-04-23.html
III.

THE SUPREME COURT

The constitutionally-based principle that the executive has the authority to remove (and
control) executive officers stems from the Supreme Court case Myers v. U.S., 272 U.S. 52
(1926). The Court stated:
...The ordinary duties of officers prescribed by statute come under the general
administrative control of the President by virtue of the general grant to him of the
executive power, and he may properly supervise and guide their construction of
the statutes under which they act in order to secure that unitary and uniform
execution of the laws which Article II of the Constitution evidently contemplated
in vesting general executive power in the President alone. Laws are often passed
with specific provision for the adoption of regulations by a department or bureau
head to make the law workable and effective. The ability and judgment
manifested by the official thus empowered, as well as his energy and stimulation
of his subordinates, are subjects which the President must consider and supervise
in his administrative control. Finding such officers to be negligent and inefficient,
the President should have the power to remove them....
Myers v. United States, 272 U.S. 52, 135 (1926)(emphasis added).
CONCLUSION
For all the reasons described above, it appears uncontroversial that the Maine Governor
may order an executive officer to take specific action, a power which is encompassed in
the unquestionable power to fire and remove executive officers, and which is implicit in
the responsibility to take care that the laws be faithfully executed. Where, as here, the
agencys discretion has been abused, the Governor, as the executive branchs CEO, has
the power and arguably the responsibility to supervise its actions and correct its mistake,
in this case protecting a small child from ongoing abuse by her father, including sexual
abuse at the age of two which was substantiated by Spurwink, Maine's leading authority
on such matters.

###