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AG: Superintendent bill doesn’t violate separation of powers

A bill seeking to give the Senate confirmation authority over the next state schools superintendent does not violate the separation of powers in the Maryland Constitution, according to an advisory letter written by an assistant attorney general assigned to the General Assembly.

The Senate is scheduled Tuesday morning to take up the issue, which would end a century-old policy in which the state schools superintendent was hired solely by the

Paul Pinsky

Sen. Paul G. Pinsky, D-Prince George’s, (The Daily Record/Bryan P. Sears)

state school board. The vote on Senate Bill 404, sponsored by Sen. Paul G. Pinsky, D-Prince George’s County, was put on hold after some opponents and supporters of the legislation raised concerns about whether such a change would violate the Maryland Constitution.

Sandra Brantley, counsel to the legislature, wrote in an advisory letter that the law would not violate the separation of powers between the Senate and governor.

“Providing for the confirmation of the Board’s appointment does not usurp the appointment power of the Board or subject the Board’s appointment to the legislature’s control, in my view,” Brantley wrote. “By confirming an appointment, the Senate is not exercising an executive function.”

Under current law, the governor appoints members of the state school board. Those appointments are subject to the confirmation of the Senate. In turn, the board hires a superintendent to oversee the state Department of Education – a policy that has been in place since 1916.

Supporters of the change say the legislation will give the legislature a voice in ensuring the next superintendent is well-qualified. Opponents call the effort another attempt by Democrats in the legislature to limit the power of a Republican governor.

Pinsky, the sponsor of the bill, said Monday night that there are other examples of where the Senate confirms both the members of a board and the board’s choice to run a department including the Maryland State Board of Elections.

Brantley compared the change to the appointments process governing the Maryland Higher Education Commission where the members of the board are appointed by the governor. The board in turn sends the governor a list of names of three possible secretaries.

“Senate Bill 404 does not change the removal authority of the board, nor confer that power on the legislative branch,” Brantley wrote. “Therefore, in my view, modeling the Superintendent appointment process after MHEC’s appointment process for the Secretary is not needed from a constitutional perspective. Moreover, doing so would arguably give the Governor authority to remove the superintendent.”