Md. lawmakers push to amend governor’s appointment process

ANNAPOLIS — A tiff over two appointments made and later withdrawn by Gov. Larry Hogan has Democratic lawmakers pushing to close what they say is a loophole that circumvents their advice and consent powers.

Legislation proposed by the chairman of the Senate Executive Nominations Committee seeks to close that loophole following Hogan’s appointment, withdrawal and reappointment of then-Health Secretary Dennis Schrader and then-Planning Secretary Wendi Peters. Hogan’s actions resulted in a battle with lawmakers who placed language in the budget barring the state treasurer from paying either and a lawsuit that will be heard by the Court of Appeals later this spring.

“This bill deals with an issue that got a lot of attention last year but frankly is geared toward what was a presumptive loophole or uncertainty and tries to set some sort of a basic standard for Executive Nominations and how we move forward,” said Sen. William “Bill” Ferguson, D-Baltimore City and chairman of the Senate Executive Nominations Committee.

Ferguson called the legislation “a practical bill.”

“I think it’s better for everybody to have a really clear standard for everybody on what should happen should a governor, in the future, withdraw a nominee,” Ferguson said.

Some top Democrats felt the bill became necessary after a pair of appointments made by Hogan exposed a loophole some lawmakers said allow governors to thwart the Senate’s advice and consent authority. That loophole, they feared, would allow a governor to make high-level appointments, withdraw the nominees before the Senate could act on them, and then reappoint them to the positions after the legislature ends its 90-day session, thus skirting the ability of the Senate to review and approve the appointments.

Hogan opposes the bill.

In a letter to the House Appropriations Committee, Mathew J. Palmer, the governor’s deputy legislative officer, wrote that the bill “seeks to overturn decades of judicial precedent, advice from more than six different attorneys general, and long-standing traditions between the executive branch and Senate on matters involving the Senate’s advice and consent function.”

Under Ferguson’s bill, appointments subject to Senate confirmation would be ineligible for reappointment should the governor withdrawal their names before the Senate can act.

Acting secretaries would also be limited to 275 days of service before the governor would be required to submit their name to the Senate or submit the name of a permanent replacement.

“By the time we get to session, the governor should either name that (acting secretary) or name someone else to serve in that capacity,” Ferguson said. “Otherwise, if someone is left in an acting capacity for an indefinite period it sort of bypasses the Senate advice and consent.”

The hearing in the House Appropriations Committee comes three days after the Senate passed the legislation 39-6 with more than half of the Republicans voting in favor of the bill.

“I don’t believe the governor’s office would say they support the bill,” Ferguson said. “There is a fundamental separation of powers question and they would be concerned about anything that has the appearance of impacting that separation of powers.”

No one from the Hogan administration testified before the committee on Thursday.

In his March 15 letter, Palmer, one of Hogan’s legislative officers, wrote that Ferguson’s bill unconstitutionally limits a governor’s ability to re-nominate an appointee and called it an “overreach.” Additionally, Palmer said the bill “unconstitutionally abrogates the Senate’s ‘advice’ function by allowing the Senate to reject candidates without any hearing or discussion.”

The bill comes after a heated dispute between the Senate and Gov. Larry Hogan stemming from two controversial appointments that are the subject of an ongoing legal dispute.

Peters and Schrader, who were appointed by Hogan last year, had their nominations withdrawn during the legislative session. The legislature added language to the budget prohibiting the payment of any appointee who was subject to Senate approval but whose nomination was withdrawn before the full Senate could hold a vote.

Hogan subsequently reappointed both to their respective positions after the legislative session ended in April.

Peters was later moved to a new position and was subsequently paid. Schrader in September was named deputy secretary of Medicaid, but Treasurer Nancy K. Kopp continued to refuse to pay him.

An Anne Arundel County Circuit Court judge ruled that the budget language was unlawful and that the state could not withhold the salaries. An appeal of that ruling will be heard by the Court of Appeals later this spring.