Two Maryland officials should receive months of back pay, an Anne Arundel County Circuit Court judge has ruled.
In an opinion entered Thursday, Judge Ronald A. Silkworth ordered that former Maryland Planning Secretary Wendi Peters and current Health Secretary Dennis Schrader must be paid — even though Democratic General Assembly lawmakers tried to block their salaries after Republican Gov. Larry Hogan’s administration withdrew their nominations in an unusual move at the end of the last legislative session.
The decision was appealed by the Office of the Attorney General, representing Maryland Treasurer Nancy K. Kopp (D) on Thursday afternoon.
When the new budget year started on July 1, Kopp refused to release the secretaries’ paychecks based on the General Assembly’s budget language and her office said the salaries would not resume until the treasurer was advised that the payments are legal.
To restore Peters’ paycheck in September, Hogan appointed her to a new position, special secretary of smart growth, and her salary is similar to what she would have been paid as planning secretary. Schrader was also given an additional title — acting deputy secretary of Medicaid at the Department of Health — with the same pay as his health secretary position, but has not been paid since July.
Hogan withdrew his appointments of both Peters and Schrader during the General Assembly session, only to reappoint them after legislators left the State House. Peters received a negative committee vote on her appointment, while Schrader’s nomination was withdrawn before any vote.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Democrats added the budget language that would stop pay for any gubernatorial nominees who were reappointed after being withdrawn before a full Senate vote.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.
At a court hearing last month, an attorney for the Hogan administration argued that the state’s constitution grants the governor wide authority to appoint gubernatorial nominees and that it was inappropriate for lawmakers to pre-empt the governor’s appointment powers through the budget bill, which cannot be vetoed. If the budget restriction were allowed to stand, there would be no limit to the Legislature’s ability to limit the governor’s appointment powers, said Timothy F. Maloney, who represents Peters and Schrader.
However, Julia Doyle Bernhardt, chief of litigation for the Office of the Attorney General, made a similar argument about the Senate’s role in confirming appointments. If a governor could withdraw and then reappoint recess nominees, it would completely bypass the confirmation process year after year, she said.
Silkworth sided with Maloney, writing 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 constitutional clash is a case of first impression in Maryland courts and the Democratic leader of the Senate’s Executive Nominations Committee, Baltimore Sen. Bill Ferguson, said last month he believed the case would head to state appeals courts no matter the outcome.
On Thursday, Ferguson said a portion of the judge’s opinion in the case — that the budget language in question “has no fiscal purpose” because it did not specifically address an appropriation, but broadly applied a budget restriction — will add another wrinkle to the case during the appeals process.
Ferguson said every state budget includes a number of restrictions or conditions on funding for any number of reasons. “That has been a fundamental part of the state budget for hundreds of years,” Ferguson said.
A spokesman for Hogan’s office called for the judge’s opinion to bring an end to the matter.
“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,” spokesman Douglass Mayer said. “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. We need to put this disappointing and sordid affair behind us, so these dedicated public servants can be paid and continue working for the people of Maryland.”
Peters and Schrader filed the lawsuit in Anne Arundel County Circuit Court in August. Ferguson said Thursday that he hopes the state’s appellate courts will expedite the appeal. The General Assembly will convene on Jan. 10, when Hogan will nominate his recess appointments for confirmation.
Peters’ salary in her new position is in line with her previous pay as planning secretary: $137,749.
Schrader’s budgeted salary is $174,417.
Peters previously served as Maryland’s deputy planning secretary and on Mount Airy’s Town Council.