Rascovar: Hogan And Legislature In Constitutional Clash

7/17/17

By Barry Rascovar, For MarylandReporter

On the surface, it seems much ado about nothing – an esoteric argument most folks can safely ignore. But the dispute over whether two state Cabinet appointees can legally remain in office without Senate confirmation raises an important constitutional question that cries out for judicial resolution.

Gov. Larry Hogan precipitated this divide with some unorthodox moves that appear aimed at stripping power from the General Assembly and enlarging his ability to ignore actions of the state legislature when it comes to appointments subject to Senate confirmation.

Following hearings earlier this year, two of Hogan’s Cabinet nominees raised alarms for lawmakers. That is precisely the way the “advise and consent” section of the state Constitution is supposed to work. It’s one of the defensive mechanisms James Madison and Alexander Hamilton inserted into the federal Constitution – and embraced by most states – to place a brake on the chief executive’s power.

It provides a chance for legislators to interview Cabinet nominees, question them on the issues and pass judgment on their readiness to serve in important, decision-making state jobs.

If the appointees are found lacking, the Senate can vote down the appointments. That’s how American government works. Each branch plays a role that is independent yet interdependent. Both the chief executive and the legislative branch must give the OK.

But what happens when the governor doesn’t want to share power, when the chief executive thumbs his nose at the legislative branch?

That’s the situation Hogan and lawmakers are facing.

Schrader and Peters

Hogan’s choice for health secretary, Dennis Schrader, has good management credentials, a government background and good political contacts but no professional medical or academic health care credentials.

[Editor’s note: Beginning in 1987, Schrader was an executive for 16 years at University of Maryland Medical System, serving as director of facilities management, director of operations and vice president for project planning and development.]

Lawmakers on the Senate Executive Nominations Committee, after hearing from Schrader, became alarmed and delayed a vote on his confirmation. Then Hogan withdrew Schrader’s nomination – even though he had assurance from the Senate president that the full Senate would assent to Schrader’s appointment.

Senators had even more concerns about Hogan’s Cabinet appointment as Planning Secretary, Wendi Peters. She lacks professional planning credentials. She worked as a paralegal and served as a Republican on the Mount Airy Town Council before losing a race for House of Delegates in 2014.

Legislators heard horror stories about Peters terrorizing Planning Department workers, firing them for little cause and creating an oppressive work environment.

That led the Senate committee to reject her nomination. But before the full Senate could finalize that move, Hogan withdrew Peters’ nomination, too.

Once legislators adjourned in April, though, Hogan re-appointed both to their jobs, sticking a thumb in the eyes of lawmakers.

Legislative counter-move

Assembly leaders anticipated Hogan’s move. They’ve seen how he insists on having it his way. So they inserted language in the state budget that bars Peters and Schrader from being paid after July 1 because they lack confirmation by the Senate committee.

The state attorney general issued a legal opinion noting that Hogan has every right to reappoint the two Cabinet officials but the General Assembly has the right to cut off their pay checks because the two failed to gain Senate confirmation.

(Hogan’s office made the astounding statement that the elected attorney general’s opinion doesn’t count for a hill of beans but Hogan’s own, unelected staff counsel’s determination should be the last word.)

Then Democratic Comptroller Peter Franchot, who has continually shown an eagerness to side with Republican Hogan, did so again, announcing he would pay Peters and Schrader.

But a key signature on those paychecks isn’t just Franchot’s but state Treasurer Nancy Kopp’s.

She read Attorney General Brian Frosh’s legal opinion. Frosh’s office is, after all, the constitutional authority for all state government agencies. As a spokeswoman for Kopp put it, “Her attorney is the attorney general” – not Hogan’s staff lawyer.

Kopp’s conclusion: She has no choice but to follow the guidance laid down by the attorney general and abide by the language added to the state budget. Thus, Schrader and Peters will not be paid until this disagreement is resolved.

Shaky power-sharing

Since his election as governor, Hogan has inveighed against sharing power with the Democratic-controlled General Assembly. This is another example of his unwillingness to accept the limitations laid down in the state constitution that make the two branches co-equal parts of Maryland state government.

Other governors, when faced with rejection of an executive department nominee would have moved on, recognizing that’s the right of the state senate. There are plenty of other positions Peters and Schrader could fill in Hogan’s expansive jobs orbit.

More important, there are plenty of better suited individuals who could ably fill those Cabinet slots, individuals that agree with the governor’s conservative views but are acceptable to Democratic leaders in the General Assembly.

That’s how governance is supposed to work in Maryland – and how it has worked in the past. Unfortunately, Hogan is looking for a fight rather than consensus.

This war of words could persist into the future if Hogan wants to it drag out, reappointing Peters and Schrader, then withdrawing their nominations before the full Senate votes to reject them, then re-appointing the two once next year’s session ends.

It would make a mockery of the “advise and consent” section of the Maryland Constitution. It would send a signal Hogan isn’t willing to share power.

That’s one of the reasons Hogan must take the matter to the Maryland Court of Appeals. When two co-equal branches of Maryland government disagree this strongly on the constitutional powers of the other branch, the third branch, the judiciary, is there to interpret the law and render a definitive answer.

Failure to seek a judicial decision on this constitutional issue would be playing politics instead of seeking a final judgment as to which side is right.

It’s time for Hogan to tell his minions to stop with the name-calling and angry allegations of unethical behavior and instead order his legal counsel to take the matter to court. It would be good for both feuding branches of state government.

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