ANNAPOLIS — Months after two of Gov. Larry Hogan’s once-nominated Cabinet members settled into different government positions, the Maryland Court of Appeals on Monday heard arguments about the General Assembly’s effort to slash the secretaries’ salaries in the 2018 budget.
At issue is whether Hogan or the General Assembly violated Maryland’s Constitution during the appointment processes for former Planning Secretary Wendi Peters and former Health Secretary Dennis Schrader.
Facing a difficult legislative climate, Hogan withdrew his appointments of both Peters and Schrader during the 2017 General Assembly session, only to reappoint them after legislators left the State House. Peters had received a negative committee vote on her appointment, while Schrader’s nomination was withdrawn before any vote.
The governor’s ultimate decision to withdraw and then reappoint Peters and Schrader amounted to an end run around the Senate’s constitutional duty to advise and consent to high-level appointments, lawmakers said at the time. As a precaution, Democrats added the budget language that would stop pay for any gubernatorial nominees who were reappointed after being withdrawn before a full Senate vote.
Opinions and legal advice from the Maryland Office of the Attorney General have concluded that both Hogan’s reappointments and the General Assembly’s restrictive budget language were lawful.
Now, the Court of Appeals will make the ultimate decision.
The court case was appealed to the state’s highest court after an earlier decision from Anne Arundel County Circuit Judge Ronald A. Silkworth, who ruled in December that the budget language exceeded the Legislature’s authority, attempted to limit the governor’s appointment authority and amounted to “impermissible” legislating through the state’s budget.
The appeal, by the Office of the Attorney General, representing Maryland Treasurer Nancy K. Kopp (D), aims to answer whether the governor has the power to handle nominations in such a way and whether the General Assembly can enact a budget restriction to prohibit payment of Cabinet secretaries “whose recess appointments circumvented the Senate’s confirmation power.” The case also asks whether Kopp, who ultimately withheld the paychecks in accordance with the budget restrictions, was obligated to do so.
Because Maryland’s final operating budget cannot be vetoed by the governor, state law has maintained that the budget bill should stick to appropriations, including some restrictions on spending, and may not “legislate generally.”
Timothy F. Maloney, representing Peters and Schrader, argued that the budget language passed in 2017 did not serve a fiscal purpose and was not tied to a specific appropriation in the budget. He called it a “free-floating omnibus” provision.
“If the General Assembly can do this, if it basically can chop off their heads ... by simply placing language on Cabinet members it doesn’t want to appoint. ... Here it would be recess appointments. Next week, it could be something else,” Maloney said, arguing that the budget restriction usurped Hogan’s appointment authority. “And it really deprives the executive of the executive’s inherent capacity and authority to make executive appointments. If this is allowed to go unchecked, then the next time it will be for a different reason to inhibit the governor’s appointment power and the next time after that, it will be something else.”
Assistant Maryland Attorney General Julia Doyle Bernhardt, representing Kopp, made a similar argument. If the Maryland Senate can’t pass budget language to ensure its role in confirming executive nominees, a savvy governor could begin a perpetual cycle of appointment, withdrawal and reappointment, she said.
“You would have high-level government officials who had never been confirmed by the Senate, and that is not what the framers intended,” Bernhardt said.
Peters and Schrader filed the lawsuit in Anne Arundel County Circuit Court in August, when both appointees had gone a month without pay.
Peters began receiving a salary in September after she was moved to another position, special secretary of smart growth.
Shortly before the 2018 legislative session started, Schrader transitioned to a new role as the Department of Health’s chief operating officer.
An opinion from the court is expected before the end of this term, Aug. 31.