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Judge orders state treasurer to pay Hogan appointees

Dennis Schrader and Wendi Peters

Dennis Schrader and Wendi Peters

Two of Gov. Larry Hogan’s more controversial appointees must be paid despite budget language denying them paychecks, a judge ruled Thursday in a decision that will be appealed by the state and the state treasurer.

Acting Health Secretary Dennis R. Schrader and former acting Planning Secretary Wendi Peters are to receive their salaries and benefits, Anne Arundel County Circuit Judge Ronald Silkworth wrote. The judge also denied a motion for summary judgment filed by the Office of the Attorney General.

“This is a case that will be decided in the appellate court,” said Raquel Coombs, a spokeswoman for Attorney General Brian E. Frosh.

Silkworth’s ruling represents an initial victory for Hogan and his appointees, who have criticized the Democratic controlled legislature for violating the Maryland Constitution and refusing to pay the two legally appointed aides.

“The court very thoughtfully concluded that Secretary Schrader and Secretary Peters were entitled to receive their lawful salaries,” said Timothy F. Maloney, a lawyer for the appointees. “Cabinet officers shouldn’t have to work for free.”

Similarly, a spokesman for Hogan praised the decision and called the legislature’s efforts a “sordid affair.”

“It is unfortunate that it took a court order to do it, but justice, common sense, and the rule of law have finally prevailed in this case,” said Douglass Mayer. “It is far past time for the Senate president, attorney general, and treasurer to stop this sad political game, do the right thing, and accept the court’s decision.”

Sen. Bill Ferguson, D-Baltimore City and chair of the Senate Executive Nominations Committee, said he was not surprised by Silkworth’s decision, which he said could have dire consequences if not overturned on appeal.

“Judge Silkworth suggested a radically different interpretation of the legal effect of budget language than the state has accepted for over 100 years,” Ferguson said. “A circuit court opinion has no value as precedent, but were this ruling to stand, the legislature’s constitutional powers over the state budget would be eviscerated.”

Budget language

At issue is the constitutionality of budget language meant to prevent Hogan from paying Schrader and Peters after the governor withdrew their nominations earlier this year before the full Senate could vote on either. The legislature responded in the waning days of the 90-day session by using the budget to restrict payment of any appointment subject to Senate confirmation that had been withdrawn before a vote could be taken.

Only Peters and Schrader are subject to the language.

“There can be little doubt (the budget language) was narrowly tailored to inhibit the governor from appointing these two particular plaintiffs, and to force the plaintiffs, once appointed, to leave their offices by depriving them of their lawful salaries and benefits,” Silkworth wrote Thursday after hearing arguments in the case last month.

Lawyers from the attorney general’s office, representing the state and Treasurer Nancy K. Kopp, argued unsuccessfully Hogan violated the constitution by withdrawing the nominations of Schrader and Peters before a vote by the full Senate and then re-appointing them to their positions once the 90-day session ended.

The appointments, they argued, represented an end-run around the Senate’s advice and consent powers and set up the possibility of a governor avoiding confirmation by appointing and withdrawing a nomination before a vote and then reappointing when the legislature was out of session.

Separation of powers

But Silkworth, in his 35-page opinion, ruled the budget language used by the General Assembly to deny payment to Peters and Schrader is a violation of the separation of powers.

“If the governor cannot pay his recess appointees, then he has sustained an extraordinary intrusion on his constitutional authority to appoint them and obtain their continued service,” Silkworth wrote. “This intrusion violates… the governor’s discretion to appoint ‘some suitable person’ to a recess appointment…provided their nomination was not rejected by the full Senate.”

The legislature is barred from using the budget to legislate, Silkworth added, as it is not subject to a veto by the governor.

“This is not an appropriate use of budget language,” Silkworth wrote. “It seeks to amend the plaintiffs’ entitlement to their appropriated salaries…which it plainly cannot do. It also seeks to limit the governor’s recess appointment authority, which it cannot do.”

Addtionally, Silkworth found that Kopp had no legal authority to deny payment to either appointee.

“It is not the treasurer’s role to look behind the appropriation or to recalculate the warrant,” Silkworth wrote. “The comptroller enjoys the exclusive authority to ‘adjust and settle public accounts.’”

Schrader has not been paid since July 1. Peters’ salary as acting planning secretary was similarly denied. She began receiving a paycheck in late September after Hogan transferred her to a new position.

“I hope wisdom prevails and the attorney general declines to appeal,” Maloney said, a principal at Joseph Greenwald & Laake P.A. “This entire exercise has been a huge waste of public money.”

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One comment

  1. boyd20707@yahoo.com

    It all started when the governor withdrew his appointments knowing they would be rejected by the legislature because of their qualifications and what was disclosed to them about their history. No surprises here about the judge’s radical interpretation of the law. The court is stacked witg Republicans.