A panel charged with making recommendations on nearly $114 million in state aid for local school construction projects was unable to vote Thursday after Gov. Larry Hogan ordered his two representatives to stay away in protest.
The absence of Planning Secretary-designee Wendi Peters and Department of General Services Secretary Ellington Churchill from The Interagency Committee on School Construction meeting reflects a squabble between the governor and the legislature over the role of the Board of Public Works in approving $285 million in state aid for school construction. The protest has also raised the specter of a legal brouhaha between the state’s executive and legislative branches.
“The governor instructed the secretaries on the IAC to not participate as a direct protest to the unconstitutional action that the legislature took to remove the Board of Public Works’ legal and proper oversight over the distribution of hundreds of millions of dollars in school construction funds,” said Douglass Mayer, a Hogan spokesman. ”
The protest by Hogan and legislature’s budget language are the latest turns in a struggle to define the powers of the Board of Public Works and curb the ability of Gov. Larry Hogan and Comptroller Peter Franchot to use the panel as a bully pulpit on education issues.
“If the General Assembly believes they can remove the legal authority of three constitutional officers and give it to an unelected, largely unaccountable group of people, they are sadly mistaken,” Mayer said, adding that the budget language was “smuggled in.”
“If they wanted to do it, they should have the guts to do it in the light of day but they didn’t have the guts to do that,” Mayer said. “They wanted to sneak it in.”
Sen. Richard Madaleno, D-Montgomery County and vice chair of the Senate Budget and Taxation Committee, called the budget language “a cooling-off period.”
“We continually hold out the olive branch,” Madaleno said. “We continually try to get him to work with us in the norms of Maryland governing traditions. It’s the governor who wants to be the bull in the china shop. This is a cooling-off period and see if we can come back to a collaborative approach rather than a permanent solution that might have unforeseen consequences.”
The absence of the two department heads delayed a final vote to allocate the remaining state school construction money. Former Sen. Barbara A. Hoffman, the Senate representative on the committee, said she was unable to attend the meeting after being hospitalized for pneumonia.
With three of the five members absent, the committee was unable to meet or vote on any issues. The panel has rescheduled a meeting for May 2.
Robert Gorell, executive director of the committee, said the panel will decide the final portion of school construction and renovation aid. The decisions by the committee in May would then be final, based on the language placed in the capital budget by the General Assembly, he said.
The three-member Board of Public Works was established in the Maryland Constitution as the state’s top administrative body. The IAC is an arm of the board established in 1971 for the purpose of making recommendations on how the board should divvy up hundreds of millions of school construction dollars each year.
Even though the board is established in the state constitution, much of its power are assigned by the legislature.
David W. Stamper, an assistant attorney general assigned to the General Assembly, wrote in a five-page advisory letter that the board’s authority “is quite narrow.”
“In general, the board’s authority, including the authority it exercises now over the state’s school construction program, has been conferred upon the board by statute and is thus subject to modification or rescission by the legislature,” Stamper wrote.
The legislature, for the second consecutive year, attempted to restrict the board’s role through budget language. Lawmakers this year added language that is meant to end the historical role role of the board in approving final funding recommendations for school construction projects around the state.
Madaleno said the legislature worked closely with legislative counsel to craft language that would stand up to a court challenge.
“We try not to act like the Hogan administration,” Madaleno said. “We try to make sure the steps we take are legal.”
Attorney General Brian E. Frosh, in a letter to the governor, declared the capital budget constitutional.
Frosh called the legislature’s language “a condition or qualification” placed on the state school construction aid and said it was not subject to a line item veto by Hogan.
Frosh’s letter, however, is not legally binding. Some Republicans question whether it would stand up to a legal challenge.
“While this may not violate the constitution directly it violates the general intent and the concept of the taking rights and responsibilities of the BPW that only they can abrogate,” said Sen. Andrew. A. Serafini, R-Washington County.
This is not the first squabble between Hogan and the legislature over how the board handles school construction issues.
The legislature in 2015 added language that was meant to end the annual appearances in Annapolis by the state’s school systems seeking school construction money that came to be known as Beg-a-thon. Hogan ignored the language and said school systems that did not make an appearance would risk their requests being cut.
Lawmakers also established a commission to examine school construction in the state and potentially recommend changes to the Interagency Committee on School Construction and the role of the Board of Public Works.
Last summer, Hogan and Franchot — acting through the board — withheld $5 million from Baltimore City and $10 million from Baltimore County over complaints that neither jurisdiction was moving fast enough to address the lack of air conditioning in classrooms.
The decision forced the resignation of David Lever, then the executive director of the interagency committee. The departure capped a rocky relationship between Lever and Hogan and Franchot.
Mayer, Hogan’s spokesman, questioned the legality of it but refused to speculate on whether the issue would land in court.
“All options are on the table and being looked at,” Mayer said.