Maryland must pay cabinet secretaries who weren't confirmed, judge rules

An Anne Arundel County judge ruled Thursday that the state must pay two of Gov. Larry Hogan's cabinet secretaries who were not confirmed by the legislature.

Circuit Judge Ronald A. Silkworth ordered the state to pay acting health secretary Dennis Schrader and Wendi Peters, who had been acting secretary of planning, retroactively to July 1 when they stopped receiving paychecks following actions by state lawmakers.

The state Senate confirms all of the governor’s cabinet picks. But the full Senate did not vote on Hogan’s nominations of Schrader and Peters during the General Assembly session that ended in April. Hogan withdrew the nominations, then appointed them again after the session ended.

Hogan contended the two should be paid, but lawmakers had placed wording in the state budget to forbid payment of any cabinet member who was kept on after failing to win Senate confirmation.

The legality of that move has been in dispute, and Schrader and Peters filed a lawsuit this summer.

Attorneys for state Treasurer Nancy K. Kopp, who followed lawmakers’ instructions and refused to issue paychecks to Schrader and Peters, immediately appealed Thursday’s ruling.

Kopp’s office referred questions to the office of the attorney general, which represents her.

Raquel Guillory Coombs, spokeswoman for the office, said: “We always knew this was a case that would be decided in the appellate courts.” She declined to comment further.

A spokesman for Senate President Thomas V. Mike Miller Jr. — a Democrat who not only leads the Senate but also sits on the committee that reviews gubernatorial appointments — declined to comment and also referred questions to the office of the attorney general.

Meanwhile, a spokesman for the Republican governor said Kopp and lawmakers should move on.

“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,” Hogan spokesman Doug Mayer said. “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.”

Timothy F. Maloney, a Greenbelt-based attorney who represents Schrader and Peters, said he also hopes the issue can be put to rest.

“I hope that cooler heads will prevail,” said Maloney, a former state delegate. “This has been an enormous distraction to the administration of government and it’s also a colossal waste of taxpayer money.”

Maloney said neither Schrader nor Peters would discuss the ruling publicly.

It was the office of the attorney general that determined in June that Schrader and Peters were lawfully reappointed — but that the budget language permitted the state to not pay them.

At the time, Hogan’s attorney argued the budget language was unlawful. And Comptroller Peter Franchot, a Democrat often allied with Hogan, agreed with the governor and issued “payroll warrants” ordering their paychecks to be issued.

Kopp declined to honor those warrants for paychecks covering their salaries after July 1. Kopp, a Democrat, is appointed by state lawmakers and often aligns with their interests.

Schrader and Peters also lost their benefits, including health insurance, sick leave and retirement contributions. They filed their lawsuit in August.

In Thursday’s ruling, Silkworth said he considered whether Schrader and Peters were legally reappointed and whether the ban on paying them was valid.

He ruled that the governor is allowed to appoint cabinet secretaries when the General Assembly is not in session — so long as the nominees weren’t previously rejected by the Senate. The full Senate never took a vote for or against either Schrader or Peters, he noted.

The judge also found the budget language banning salary payments to Schrader and Peters illegal on multiple fronts. Lawmakers cannot “legislate in the budget” because the governor does not have an opportunity to veto the budget, he wrote.

The budget language also represents an inappropriate “special law” that only affects particular people, Silkworth wrote, and violates the separation of powers between the legislative branch and the judicial branch.

“If the Governor cannot pay his recess appointees, then he has sustained an extraordinary intrusion on his constitutional authority to appoint them and obtain their continued service,” Silkworth wrote.

Silkworth also found Kopp had inappropriately refused to honor payment warrants issued by the comptroller.

While the case has been under litigation, Hogan moved Peters to a different position — special secretary for smart growth, which does not require Senate confirmation — so that she could be paid.

Schrader has stayed on as acting health secretary and also was later appointed to an additional role as special adviser for health care financing. But he hasn’t been paid for either job since July.

This fall, he and other top state health officials were held in contempt of court by a Baltimore judge for failing to move mentally ill inmates into state psychiatric hospitals quickly enough.

pwood@baltsun.com

twitter.com/pwoodreporter

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