Separation-of-powers question stalls Md. state superintendent bill

ANNAPOLIS — The Maryland Senate has delayed a vote on a controversial bill that would give it confirmation oversight over the hiring of a new state schools superintendent in order to seek advice on whether such a law would violate the Maryland Constitution.

Some Democrats say it is time to make adjustments to the 100-year-old law that gives board members the ability to independently hire a superintendent. But lawmakers who support the bill pressed the pause button Friday and called for an advisory letter from the Maryland Attorney General’s office because of concerns about the separation of powers between the legislative and executive branches.

Sen. Jamin B. “Jamie” Raskin, D-Montgomery and chairman of the Senate Executive Nominations Committee, said the concerns raise “a whole series of questions that could open a Pandora’s box.”

Sen. Robert G. Cassilly, R-Harford, said the bill “offends the separation of powers” under the three tests established by the Court of Appeals.

Cassilly called the bill “an effort by the legislative body to usurp the powers of the governor.”

Raskin said the advice is necessary.

“We don’t want to go down the road where we end up in court over separation of powers,” he said.

The proposal is one of several bills that Republican legislators and Gov. Larry Hogan say are an effort by Democrats to limit executive authority at a time when a GOP governor shares power with Democrats, who have long controlled the legislature. Other such bills include giving lawmakers increased oversight of the hiring of a new university system chancellor and imposing a new ranking system on transportation projects funded by the governor.

Currently, the governor appoints the 12 members of the state school board with the advice and consent of the Senate. Hogan so far has appointed five, including a student member who has voting privileges. He can appoint three more members later this year.

The board is expected to select a permanent replacement to succeed Lillian Lowery, who left the position in August.

Sen. Paul G. Pinsky, D-Prince George’s County and sponsor of the bill, said the intent of the measure was not about intruding on the authority of the governor but about “having another voice to work collaboratively, to give the Senate a voice in ensuring the person has the credentials and the expertise — as we do with hundreds, maybe thousands of other appointees — does seem appropriate.”

Some states employ a system in which the state Senate has a role in confirming the appointment. In most of those cases, those states allow the governor rather than a school board to appoint the head of the state department of education.

Only one state — Mississippi — uses the same model as proposed in Pinsky’s bill.

The model used by Maryland has been around since 1916 with one minor change in 1969.

“I’ve listened to a lot of commentary on the bill over the past few days and haven’t heard one word that convinced me that we need to change what we’re doing at the present time,” said Sen. George C. Edwards, R-Western Maryland.

Edwards said the current law seems to have worked since 1916 “because since that time we’ve had seven superintendents. I guess you could say it works or doesn’t work depending on whether you think the superintendent did a good job or didn’t do a good job but it would imply to me that they’ve done a pretty good job if we’ve only had seven over that time frame.”

Sen. Joan Carter Conway, D-Baltimore City and chairwoman of the Senate Education, Health and Environmental Affairs Committee, said the time has come to update the state law governing how the head of the state department of education is selected.

“A hundred years doesn’t work for me,” Conway said. “A hundred years ago, women couldn’t vote. African-Americans couldn’t vote. So, because it has not been changed for 100 years doesn’t necessarily mean we should not be changing things. We should be making things better.”

Conway said while some don’t believe there is a need for change, she disagrees.

“I think we should change a lot of things,” Conway said. “I think we should remove a lot of hurdles.”

Hogan, in a Thursday interview on The C4 Show on WBAL, said the various changes amounted to “a temper tantrum” by the legislature.

“There’s certain people in the legislature that’s just very frustrated that they no longer have a monopoly, that they don’t control everything and now they’re trying to change all the rules — things that worked fine for 50 or 100 years all of a sudden have to be changed,” Hogan said. “It’s a naked power grab.”