An 11th-hour effort in the Maryland Senate could resurrect Gov. Larry Hogan’s pick to run the Department of Health and Mental Hygiene.
Senate President Thomas V. Mike Miller Jr. hinted at the deal Friday.
“We’re trying to work with the executive with regards to his appointments and so we walked around the tally sheet with regards to the secretary of Health and Mental Hygiene,” Miller said. “It’s going to be between the chair of Executive Nominations (Committee) and the administration. If we can work something out, we’re going to take it up on Monday.”
As of yet, no final agreement has been reached. Failure to reach an accord could set up a rare court battle between the legislature and the governor.
Hogan unexpectedly withdrew Schrader’s name on he belief that the acting secretary would not get a confirmation vote before midnight Monday night — a contention the chairman of the Senate Executive Nominations Committee said was unfounded.
Driving the resurrection of the nomination, according to sources, was a concern about how a fight over Schrader’s continued presence at the Department of Health and Mental Hygiene might affect ongoing discussions with the federal government over the Medicaid Waiver program — a $3 billion federal aid package that Maryland would be hard-pressed to pay for should the funding evaporate.
Doug Mayer, a spokesman for the governor, couldn’t immediately comment on the proposal when reached Sunday night.
Sen. William C. “Bill” Ferguson, D-Baltimore and chairman of the Senate Executive Nominations Committee, confirmed the existence of a possible deal to move Schrader forward but the governor needs to agree to not re-appoint other withdrawn nominations without Senate confirmation.
“In my mind, it is very problematic to withdraw a candidate and bypass the (state) constitution,” Ferguson said.
Topping the list of withdrawn nominations that is a concern for Ferguson and others is Wendi Peters, the embattled acting secretary of the Department of Planning. Peters’ nomination was withdrawn less than an hour after the Executive Nominations Committee voted to recommend she not be confirmed.
But Peters continues to serve in the role. The Senate later added language to the budget that would prevent a secretary in Peters’ situation from being paid. The language also appears to apply to Schrader, though a spokesman for the governor said they disagree and planned to re-appoint Schrader even without Senate consent.
That same spokesman would not say if Peters would continue in her position beyond June 30, saying only that she continued to have “the confidence of the governor.”
Ferguson said that the concern isn’t just about Peters. Hogan withdrew the names of five other nominations — two to the state Health Care Review Commission and three state board of education appointments. Prior to that, Hogan withdrew Day Gardner, who was nominated to the state Board of Physicians, because of concerns about her views on abortion, and Brandon Cooper, a state board of education appointment, who had a number of tax liens and other legal issues.
“If a withdrawal doesn’t mean a loss of the governor’s support it throws into question what is real and what is fake about the governor’s appointment decisions,” Ferguson said.
An informal vote tally was taken on Friday in an attempt to show Hogan that Schrader had support for confirmation. Ferguson said he was only aware of four votes against.
Sen. J.B Jennings, R-Baltimore and Harford counties and Senate minority leader, said he and others worked late last week to revive the Schrader nomination.
“I think there is a realization that the Medicaid waiver issue could become a big issue for the state and that we need to address it and have the right person in there,” Jennings said.
Both the Hogan administration and the legislature have examined a potential legal battle should the issue not be resolved.
Mayer, in earlier comments, said the governor has legal advice that the language in the budget that prevents him from keeping a recess appointment that was withdrawn before final Senate action is a violation of the state constitution.
Similarly, Ferguson said the legislature might seek an injunction to bar Hogan from continuing the problematic appointments.
“It’s a violation of the constitution and we would pursue it as such including seeking an injunction to bar those nominations,” Ferguson said.
“I hope that’s not the path that has to be taken,” Ferguson said.
For now, Ferguson said he and the Senate await word from the governor.
Hogan and Miller, the Senate leader, were at an event Saturday. Ferguson said he expected to hear something over the weekend.
“It could come up today,” Ferguson said. “We’ll see.”
Other than the midnight deadline, there is no hard timeline for completion of such a deal. Ferguson said it might not even be necessary for the full Executive Nominations Committee to meet in advance but instead the vote could be taken up by the full Senate through a procedural vote.
“It could be a late night, Sine Die surprise,” Ferguson said.