A potential state constitutional showdown between Gov. Larry Hogan and the General Assembly looms with the start of the new fiscal year over two Cabinet secretaries who will remain in their jobs despite never being confirmed by the Senate.
Hogan’s decision to reappoint and continue to pay Health Secretary Dennis Schrader and Planning Secretary Wendi Peters beginning with the new fiscal year starting Saturday flies in the face of budget language passed this year meant to prohibit those actions. In addition to raising the specter of a rare court battle between the branches, it could also potentially have financial ramifications for the two appointees.
Amelia Chassé said the governor intends to stick with the two secretaries despite withdrawing their names earlier this year before the Senate could take up confirmation votes.
“Secretary Schrader and Secretary Peters will continue to serve the state in their current roles, and like all employees of the state, they will be paid for their work,” Chassé said. “It is entirely within the governor’s purview to withdraw and reappoint cabinet secretaries, particularly when the Senate fails to act in good faith during the confirmation process. Whoever wrote the unconstitutional language that was inserted into the budget likely knows it won’t hold up to legal scrutiny.”
But the decision had triggered concerns of a looming collision between the legislative and executive branches. And while lawmakers are seeking advice from the attorney general, Hogan’s staff maintains that restricting the governor’s ability to retain appointees and pay them for their work is unconstitutional.
Both the governor’s office and the Senate are claiming the constitutional high ground.
Sen. William C. “Bill” Ferguson, D-Baltimore City and chair of the Executive Nominations Committee, said lawmakers are expecting a final advisory letter from the attorney general next week. A preliminary draft supports the Senate, he said.
“My biggest takeaway is that the language in the budget is constitutional and an appropriate protection of the powers granted to the Senate,” Ferguson said. “My expectation is the governor will comply with the letter and the laws of this state.”
In April, lawmakers suggest that they might seek an injunction to prevent Hogan from paying the secretaries.
Ferguson on Thursday stopped short of such language.
“It’s unfathomable to me that (Hogan) would not comply with the law,” Ferguson said.
If the conflict ends up in court, if could be the first time in recent memory for the state’s executive and legislative branches.
“I’m not aware of a time when two branches have gone to court,” said Bonnie Kirkland, an assistant attorney general who advised the legislature from 2003 to 2013. “I’m not aware of an instance where a governor has not complied with a budget restriction in budget language.”
Kirkland, who is no longer a lawyer for the state, did not comment directly on the conflict over the appointments of Peters and Schrader.
Kirkland said most disputes are worked out between the attorneys assigned to each branch or state agency. Those that couldn’t be resolved were “kicked up” to the chief counsel of opinions and advice. She said there were only two or three times in a decade where those disputes required the involvement of attorneys in the Baltimore office.
“We’re all lawyers,” Kirkland said. “We all know how to read the constitution and statutes. We’d all try to work through it.”
Peters and Schrader were interim appointments to the departments of Planning and Health, respectively. Hogan later submitted their names to the Senate for confirmation but for different reasons later withdrew them.
“The partisan games that were played with the confirmation and budgetary process did a disservice to the people of Maryland, particularly as Secretary Schrader works to protect health care coverage for Marylanders at this critical time,” said Chassé.
History of the nominations
Peters’ nomination was the first to run into trouble. The Senate Executive Nominations Committee voted to recommend that the full Senate reject her appointment. Hogan withdrew her name an hour later but gave no indication he would seek to replace her.
In response, the Senate added language to the budget a week later that restricted the governor from retaining appointments, even in an acting capacity, if the nominee was withdrawn before the Senate could hold a vote. It was language that at the time was clearly focused on Peters.
The state constitution gives the legislature broad powers to cut the budget and restrict funds. When a conflict arises, the budget amendments typically supersede most other considerations.
Sen. Edward J. Kasemeyer, D-Howard and Baltimore counties and chairman of the Senate Budget and Taxation Committee, expressed disappointment at the time for needing to resort to the budget tactic.
“I think it was something that had to be done to meet the specific situation that we were facing,” Kasemeyer in March.
Schrader found himself in the same legislative boat as Peters after Hogan withdrew his nomination before a Senate vote could be considered, even though it appeared the health secretary would be confirmed.
The budget language used by the legislature is neither uncommon nor likely legally problematic, according to some observers.
Bruce Martin, an assistant attorney general who worked for 34 years for the state, including advising the Office of Budget and Management during the term of Republican Gov. Robert L. Ehrlich Jr., declined to comment specifically on the issues surrounding Peters or Schrader. But he acknowledged the legislature has broad powers to craft the budget after it is submitted.
“They can strike or reduce many appropriations,” said. “That’s what’s happened here.”And while the legislature and governor sort out the conflict, Peters and Schrader will likely be paid — an act that could result in both having to repay the state should the courts step in.
Joseph Shapiro, a spokesman for the Office of the Comptroller, didn’t comment specifically on either Peters or Schrader, but he said payroll checks are generated automatically based on information provided by the Office of Budget and Management and individual departments.
“Our job in the Office of the Comptroller is to make sure that state employees receive their paychecks in a timely manner,” Shapiro said. “Until we’re informed that someone should not be paid or is no longer a state employee, we’ll get those checks out.”