Unpaid State Officials Sue Treasurer, State

Dennis Schrader and Wendi Peters, Governor Larry Hogan’s secretaries for Health and Planning, respectively, have filed suit in Anne Arundel County Circuit Court against State Treasurer Nancy Kopp and the State of Maryland seeking a declaratory judgment on their right to receive their paychecks, reports Bryan Sears for the Daily Record.

Governor Larry Hogan withdrew his appointees’ nominations during the legislative session, preventing the State Senate from voting on their confirmations. The General Assembly passed budget language that prohibits the use of State budget funds to pay the salaries of certain secretaries and other high-ranking officials who did not receive Senate confirmation during the 2017 session. In response to the budget language, State Treasurer Nancy Kopp announced last month that should would not pay the secretaries at the start of fiscal 2018 year on July 1.

The Daily Record  quotes Governor Hogan:

The attorney general gave both the legislature and our office the opinion that they’re legally serving in their positions so it would be illegal for us not to pay them.

Sears further reports:

The attorney general, in two different advisories, said Hogan could legally reappoint secretaries whose names he withdrew before a vote. But in a separate advisory, the office said that the language in the budget barring the payment of Schrader and Peters was also legal under the Maryland Constitution.

From the Letter To Senator Ferguson from the Office of the Attorney General (June 27, 2017):

The reappointment of Ms. Peters and Mr. Shrader after the close of session raises significant constitutional concerns because the practice of making recess reappointments of withdrawn nominees tends to circumvent the Senate’s constitutional confirmation role. But in the absence of any constitutional provision addressing the practice, our Office’s position has been that a governor may reappoint a withdrawn nominee after session so long as the nominee was not rejected by the full Senate. As for the budgetary restriction, I believe it is a constitutionally permissible exercise of the Legislature’s power to impose conditions on the expenditure of appropriated money, particularly as applied to the positions of Secretary and Acting Secretary.

Although a reviewing court might disagree with one or both of these conclusions, it likely would not resolve the reappointment and budgetary issues in a way that would allow a governor to systematically circumvent the Senate’s confirmation role. Instead, it would either invalidate the reappointment of the withdrawn nominees, or, more likely, conclude that the budgetary restriction is a constitutionally valid means of ensuring the integrity of the Senate confirmation process. Thus, even if Ms. Peters and Mr. Shrader were valid recess appointments, they may not receive a salary as Secretary, Acting Secretary, Deputy Secretary, or Assistant Secretary as of the budgetary restriction’s July 1 effective date.

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