July 9, 2018
Good Morning! In this morning’s eBlog, we consider we consider the ongoing governance challenges in Puerto Rico—and how distinct its form of governmental bankruptcy is, before looking at some innovative efforts by Puerto Rico’s elected local leaders to institute new accounting measures.
Who’s in Charge of Puerto Rico’s Physical and Fiscal Future? U.S. District Judge Laura Swain Taylor has granted a motion by the Commonwealth to accelerate the terms of the motions and the aftershocks associated with the lawsuit filed by Gov. Ricardo Rosselló Nevares against the PROMESA Oversight Board, a judicial action which Christian Sobrino, the Governor’s representative before the Board, could be completed the end of this month, noting: “The Judge has a good appreciation of the right which will apply in the case and understands that (the dispute in the lawsuit) is a matter that is not dependent on facts, but rather on an interpretation of PROMESA statute.” In the case, which was filed as an adversarial suit within the government’s quasi bankruptcy cases, Judge Swain is asked to issue an injunction and a declaratory judgment against the Oversight Board for preempting, by means of its fiscal plan and budget aims, to impose public policy decisions, rather than recommend “non-binding” recommendations. Therefore, the motion asserts the Governor does not have to comply, or, as he put it: “I think the judge appreciates how essential it is (the demand) for the government’s operation.”
The motion would appear to set a short time frame: the Oversight Board would have to respond to the demand by Thursday; responses to the motions will continue until July 20th, with the arguments considered as part of an “omnibus” hearing scheduled for July 25th in the District Court of Puerto Rico, in Hato Rey, the most densely populated neighborhood in San Juan. In his complaint, the Governor has argued that the Board is intent upon “micro administering” the government of Puerto Rico—a governing responsibility which belongs to his administration, and not to the body created by the U.S. Congress to control the finances of the government of Puerto Rico—adding that the remedy requested by the government of Puerto Rico does not imply that the fiscal plan approved by the Oversight Board last April is nullified, but rather that the so-called ‘corrective sheets’ issued by the Board, such as the suspension of the Christmas bonus, the reduction of personnel in the public service, or the consolidation of agencies, and the way in which the pension plans will be reformed, are competences of the government—not of the Oversight Board. A key sticking point, as we have noted, has been with regard to Law 80, the Law on Unjustified Dismissal (Law 80). The Board had demanded the preemption or elimination of this law, asserting it would improve the business climate in Puerto Rico—a preemption unsurprisingly opposed by legislative leaders, who had rejected an agreement between Gov. Rosselló Nevares and the PROMESA Board in which, in exchange for the repeal of Law 80, the Board would have granted a series of increases to some budget items for the new fiscal year which commenced this month. Thus, Gov. Rosselló, last Thursday, went to court to challenge the budget imposed by the PROMESA Oversight Board, claiming the Board had overstepped its authority. Moreover,
Puerto Rico Senate President Thomas Rivera Schatz said he supported the Governor’s suit against the both the Board and its proposed preemption budget, while the Board defended its authority, citing the 2016 PROMESA statute enacted, theoretically, to help the Commonwealth manage its economy and restructure its debt. In response, the PROMESA Board issued a statement: “The Financial Oversight and Management Board for Puerto Rico approved and certified a Commonwealth budget for FY2019 in compliance with the certified fiscal plan and in accordance with [the Puerto Rico Oversight, Management, and Economic Stability Act to put Puerto Rico on the road to recovery. The Oversight Board will vigorously defend against any suit attempting to thwart the carrying out of the budget and fiscal plan,” referring to the fiscal plan it had approved on June 30th by unanimous consent and declaring it to be the valid budget for Puerto Rico—a proposed budget which allocated $8.758 billion for the General Fund and $20.664 billion for Puerto Rico’s consolidated budget—a fiscal budget intended to preempt Puerto Rico’s authority and go into effect on July 1.
Gov. Rosselló said that he would ask a court to establish that the Board’s fiscal plan and budget are recommendations—and recommendations only, adding he would seek a “declaratory judgment and an injunction” on the Board’s attempt to usurp the Commonwealth of Puerto Rico’s right to home rule by including components in the budget which control public policy—no doubt referencing the PROMESA Board’s approved budget’s elimination of funding for the government’s longstanding Christmas bonus, for a municipal aid program, and several other purposes supported by the Governor. The PROMESA Board had agreed with the Governor Rosselló to funding these items in exchange for a promise from the Governor that Puerto Rico would adopt at-will employment by rescinding Law 80; however, as we have noted, under the leadership of Senate President Thomas Rivera Schatz, the Puerto Rico Senate refused to rescind Law 80—an action which, while it led to strained relations between the Governor and Senate leader late last month, appears to have dissipated in the face of the preemptive efforts by the unelected PROMESA Board—or, as Sen. Rivera Schatz at the end of last month put it: “We must put a stop to the Napoleonic pretensions of the fiscal control board. We have and must defend the people of Puerto Rico. That’s the right thing, Governor. I congratulate you…Puerto Rico has a democratically elected government: “We don’t accept an imposed and abusive government.”
The federalism challenge came as, on June 30th, the PROMESA Board also approved budgets for the Government Development Bank, the Puerto Rico Highways and Transportation Authority, the University of Puerto Rico, the Puerto Rico Aqueduct and Sewer Authority, and the Puerto Rico Electric Power Authority—approvals upon which the Governor has not yet indicated whether he planned to challenge these budgets in court as well.
Nevertheless, the Governor has called for an extraordinary session of the Legislature in a bid to pass Law 80, the controversial labor reform bill which would modify worker protections in order to make the U.S. territory more attractive for investment—an effort the PROMESA Oversight Board has long insisted upon—a call which, at least so far, has gone begging . Nevertheless, the legislature has balked, including leaders from Governor Rossello’s own political party. Absent the reform, basic assumptions about Puerto Rico’s fiscal and governance future are unclear. The Governor, in a televised address to the Commonwealth, called for a last-ditch session of lawmakers to approve a version of the reform, noting: “I’m confident that this call for an extraordinary session will serve to avert the damage that the failure to fulfill the agreement with the Board causes to the island’s economy, as well as important sectors of our society.” Previously, both Gov. Rossello and the Board had acknowledged, reluctantly, that critical questions for the island’s future may have to be settled by a court—a settlement which the Governor apparently believes the government would stand little chance of winning, as his reading of PROMESA makes clear the Board’s power in matters of the budget, ergo, he said, compromise was critical to create a sense of predictability around Puerto Rico’s future. Nevertheless, he also said that he had signed the legislature’s budget, as opposed to an alternate version advocated by the PROMESA Board, and that, for the time being, that was the version, which is in effect: the PROMESA Board’s budget was unacceptable, he noted.
The Commonwealth has defaulted on its municipal bonds; it is confronted with $120 billion in debt and pension obligations, which it simply cannot fiscally meet. And now the question of ‘Who’s on First,” in the wake of a decade of recession and then the disparate federal fiscal and physical response to the devastation caused by Hurricane Maria—combine with the fiscal hurricane of federal preemption with the imposition by Congress of a fiscal oversight board—has made the path back to self-governance its own fiscal and governance maze.
Natalie Jaresko, the Executive Director of the PROMESA Board, stated: “The Board continues to believe that comprehensive labor reform, including the repeal of Law 80 to make Puerto Rico an at-will-employment jurisdiction, is an essential component of the reforms needed to improve the island’s economy and make the business environment more competitive.” Last Friday, at a press conference, PROMESA Board members said they viewed labor reform as essential to Puerto Rico’s transformation—demonstrating that, as opposed to governance in chapter 9 municipal bankruptcies, where, under most state laws, there is an emergency manager designated to put together a plan of debt adjustment for approval by a U.S. Bankruptcy Court; in PROMESA, it is almost as if there are too many judicial/fiscal cooks in the kitchen.
Accounting for Municipalities Futures. Even as the path to fiscal solvency is conflicted for the Commonwealth of Puerto Rico, the issue of municipal accounting is drawing constructive attention among the island’s municipalities. Mayor Carlos Delgado Altiera of Isabela, a muncipio spread over 13 wards and also known as the “Garden of the Northwest,” for its many wild flowers, and as the town of “Leaf Cheeses,” for its production of white cheese wrapped in banana leaves—and as the City of Fighting Cocks,” as it has served as a home for the breeding of these birds since the 18th century, has indicated that the issue of creating a standardized municipal accounting system “generates many questions,” so that there is an interest to acquire technology to standardize the accounting systems of the municipalities. Thus, Mayors or Alcaldes of the New Progressive Party have urged Gov. Rosselló Nevares to veto a measure (Senate 550) authored by Senate President Thomas Rivera Schatz, which seeks to impose a unique accounting system in the municipalities. The rejection of the so-called Senate 550 Project has also been joined by the popular municipal executives: the consensus is that such a change would represent a setback and an unnecessary and impossible economic investment for most municipalities—or, as Mayor Javier Jiménez of San Sebastian put it: “The Governor was being asked to veto that project, because, definitely, centralizing again (those functions) would create a tremendous problem for us,” noting that, in recent weeks, he has met with some 20 mayors, both popular and penepés (supporters of statehood): all are opposed to the measure. The Mayor argued that each municipality has already developed an accounting system, which meets their needs.
Indeed, it seems that for several mayors, the measure has come as a surprise, even more so when the Senate President had become their ally on other issues, such as the elevation to the constitutional rank of municipal autonomy and the development of measures aimed at having the State consult them with regard to the approval of exemptions and charges that adversely impact their collections. Mayor Jiménez explained that, in the past, the Office of Municipal Affairs was the body in charge of operating the accounting systems for the island’s municipalities. However, given the inability to maintain an updated system and in line with the progress, the mayors had been permitted to contract and use that technology that would meet their needs—or, as Mayor José A. Santiago of Comerío put it: “I cannot understand how, after so many examples of the problems caused by centralization: let us walk in the opposite direction to what should be the strengthening of local governments.” Under the proposal, which would be implemented through a contract with a private company, a requisite, so that the municipalities could access advanced services and reduce the risk of loss of essential services and municipal revenues, such a service would also give them the flexibility they need to adapt to the advances and challenges. The proposed Municipal Revenue Collection Center (CRIM) would become the entity charged, as the founders are of the perception that many “municipalities do not have the way to know with certainty how much money they owe in municipal contributions, the debts between the different funds or their cash balances, or how many businesses have started or stopped operating in recent years.” The effort, the founders note, is necessary, because the “state government does not have the economic resources to develop such a large technology, the immersion of the private sector is of crucial importance,” with Isabel Mayor Carlos Delgado noting that among the island’s 78 municipios, a number simply lack the requisite technology and management experience.
In a letter sent to the Governor signed by the executive director of the Federation of Mayors, Mayor Isabelo Molina Hernandez, and signed by Federation President Carlos Molina Rodríguez, they wrote: “The Federation of Mayors does not endorse the project…It promotes unnecessary centralization and negatively affects the public policy of greater municipal autonomy.”
According to the measure, a September 2016 report from Puerto Rican Office of the Comptroller, the “vast majority of municipios failed to comply” with the criteria considered in the components of computerized systems, such as physical security and environmental controls, logical access control and control of computers, among others.” Mayor Hernández argued that municipios are subject to oversight by the Office of the Comptroller, Government Ethics, the Federal Inspector General, as well as external audits; thus, he added, if the central government wishes to have additional tools to provide greater access to the public, it can develop an information system in which municipalities publish their financial information.