Hogan appointment to PSC in jeopardy

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The appointment to the Public Service Commission of a former deputy chief of staff to Gov. Larry Hogan remains in jeopardy.

Michael Richard appeared before the Senate Executive Nominations Committee for the second time Monday night. This time it was to answer questions about the appropriateness of emails he sent to senior members of the governor’s staff in the days after he was appointed to the independent quasi-judicial board that oversees utility regulation in the state.

Richard told the committee that the emails were not back-channel attempts to work on strategy and that he was merely attempting to ensure a smooth transition for his successors as he moved into a new role.

“I understand there is a large, distinct difference in being on the Public Service Commission,” Richard said. “I thought I was being conscientious.”

“My first reflection is: yes, I am sorry I created a doubt about my independence. I guess the way I saw these activities was I was trying to be very conscientious handing off all my portfolio. These were things I was very involved in over the whole year. Suddenly I had left and there were inquiries about where things stood.”

But some members of the committee continue to have questions about more than 90 pages of emails between Richard and members of the governor’s senior staff. The committee Monday night voted to again delay a decision to confirm or reject the acting commissioner and Senate President Thomas V. Mike Miller Jr. acknowledged that Richard’s confirmation could be in trouble.

Some of the concerns center around whether Richard is capable of leaving behind his job in the governor’s office and taking on a more independent role.

In one email, Richard wrote Feb. 11 that a series of hearings would be “our first opportunity to put our imprint on this significant tax policy.”

In another, Richard asks Adam Dubitsky, Hogan’s policy director, for guidance on community solar rule-making process and messaging he can use to lobby the other four members of the commission.

“The commission will be sitting again next Monday so let’s discuss a possible statement that I can use to vigorously assert the governor’s office position on this,” Richard wrote.

“That sounds to me like you’re coordinating strategy,” said Sen. Jamin B. “Jamie” Raskin, D-Montgomery County and chairman of the committee. “That you’re the governor’s guy on the PSC and you’re working together to move the ball down the field.”

“He did cross a line,” said Miller, the Senate leader, adding that he would vote for Richard but wouldn’t attempt to influence other members of the committee.

“You know it’s one of those situations where I get blamed for whatever happens,” Miller said. “I talked to the governor about it the other day. He said ‘you can sway the committee. They’ll do whatever you tell them to do.’ I don’t tell people how to vote on bills and I don’t tell people how to vote on appointments. I told people I was going to vote for him. He made a terrible mistake.”

Richard said in some cases his emails regarding some issues had been approved by legal counsel to the Public Service Commission.

Richard came under additional scrutiny from Democrats on the committee after emails surfaced as part of a request made by Public Citizen.

Richard served as deputy chief of staff to Hogan from January 2015 until the governor appointed him on Jan. 5 to fill a vacant seat on five-member Public Service Commission. Previously, he served as director of the Maryland Energy Administration under Republican former Gov. Robert L. Ehrlich.

Since his appointment in January, Richard has routinely checked in with senior Hogan staff, including  Dubitsky, Jeannie Haddaway-Riccio, a deputy chief of staff to the governor, and Appointments Secretary Dennis Schrader.

“I was trying to be very careful to make sure all conversation was appropriate,” Richard said. “These were things I felt I had been responsible for and didn’t want to leave people in the lurch. In the future, as time goes on, I won’t be responsible for these issues. Other people have the portfolio so I can’t see that type of circumstance.”

Republicans on the committee defended Hogan’s appointment.

Sen. Stephen S. Hershey Jr., R-Upper Shore, said the emails were not prohibited communications.

“These were in a transition role,” Hershey said. “The communications and the emails do not address policy. These were broader issues.”

Miller in an interview following the hearing, said that Richard “made a huge mistake” but said that he would likely vote for him.

“He’s supposed to be a quasi-judicial appointee and he’s engaging in partisan rhetoric and ex parte communications,” Miller said. “He’s certainly not going to repeat the same mistake.”

Miller said Richard’s actions are not dissimilar to those of other appointees under other governors but added that environmental groups will likely push hard for Richard to be rejected.

“I don’t know that the committee is going to be as generous as myself in dealing with him,” said Miller, who acknowledged his own feelings might be rooted in the recent Easter holiday. “I believe in redemption. You make a mistake — he made a strong mistake, a big mistake. It’s time to move on. He doesn’t compare more adversely to some of the other names the governor sent today.”