Maryland Treasurer Nancy K. Kopp is refusing to pay the salaries of two of Gov. Larry Hogan's cabinet appointees who failed to win Senate confirmation this year — a move that sets up a potential court battle over the constitutional powers of the executive and legislative branches of government.
Doug Mayer, a spokesman for the Republican governor, called the decision of the Democratic treasurer to cut off pay for the health and planning secretaries "unprecedented and wrong on many levels."
Kopp informed the Comptroller's Office Monday that she does not have the authority to pay Health Secretary Dennis R. Schrader or Planning Secretary Wendi Peters for any work since July 1, the beginning of the state fiscal year.
The two remain in their posts. Mayer declined to make them available for comment. He said the administration is exploring all of its options, "legal and otherwise."
The General Assembly included language in the state budget this year that prohibits the state from paying administration officials who are subject to Senate confirmation if they were not approved by the Senate Executive Nominations Committee before the end of the legislature's annual 90-day session in April.
The committee this year rejected Peters' nomination and delayed a vote on Schrader's, and Hogan withdrew them. Neither appointee was rejected by the full Senate. The governor reappointed the secretaries after the legislature adjourned.
Hogan said he considered the budget provision unconstitutional.
"These two secretaries are legally serving the state in their positions and the state has a legal obligation to compensate them fairly for their hard work," Mayer said.
Attorney General Brian E. Frosh, a Democrat, wrote in an opinion that the governor had a right to reappoint the two officials. But Frosh also said the legislature has the authority to cut off their salaries because they were not confirmed.
The governor's office rejected the attorney general's advice and said it would rely on its own legal counsel.
Susanne Brogan, deputy state treasurer for public policy, said Kopp blocked the pay for the two days that fell into the current budget year "because the advice from the attorney general was that the payments could not be made legally."
"The governor's legal counsel is not her attorney," Brogan said. "Her attorney is the attorney general."
Kopp's position differs from that of Comptroller Peter Franchot, a fellow Democrat. The comptroller's office said it will keep processing Peters' and Schrader's pay until a court orders it to stop.
Brogan said the comptroller's office rejected Kopp's request to remove the officials' names from the state pay list, so the treasurer did so herself.
Brogan said Schrader and Peters would remain off the payroll until the treasurer is advised it is legal to pay them. The comptroller's office processes the pay list provided by the Department of Budget and Management, but the treasurer signs the checks.
"It looks like this is headed for court either way," Brogan said.
The comptroller's office had no comment.
The comptroller is elected by the voters. Franchot has formed a political alliance with Hogan. The treasurer is selected by the full membership of the Senate and House of Delegates.
Miller said Kopp did the right thing.
"What she did was follow the law," the Calvert County Democrat said. "She followed the Constitution. She had absolutely no other choice whatsoever."
Senate Minority Leader J.B. Jennings said Schrader and Peters are both "well qualified to serve in their posts."
"This governor deserves the same right to choose his cabinet that Maryland's Democratic governors receive as a matter of course," the Baltimore County Republican said. "In the meantime, let's stop playing partisan politics and allow these Cabinet members the ability to do their jobs."
Schrader earned an annual salary of $174,417. Peters earned $137,749.
Mayer said the treasurer's move also takes away Peters' and Schrader's health insurance.
Democratic lawmakers delayed a hearing on Schrader's appointment as some attempted to pressure Hogan and his health chief to take a stronger stand against efforts by President Donald J. Trump and congressional Republicans to repeal Obamacare.
As the legislature's session neared its end this year, Miller predicted Schrader would be confirmed. But an exasperated Hogan withdrew the nomination before it came to a committee vote.
Mayer said Miller, a Democrat, told Schrader's wife, former state Sen. Sandy Schrader, that Dennis Schrader would not be approved. Miller disputed that account, saying he told Hogan that Schrader would win easy confirmation if the governor agreed to move Peters to another position in state government.
Peters' nomination was rejected by the Senate committee after a contentious hearing in which Democratic lawmakers raised questions about her management of the department while serving as acting secretary. Hogan withdrew her nomination before it could go to the full Senate.
Mayer said Peters was treated in a "very sexist" manner and accused Miller of purposely demeaning her professional credentials by describing her as a paralegal.
"This was a disgusting display," Mayer said.
Miller said Peters was, in fact, a paralegal, and "totally unqualified for the position." He accused her of firing qualified employees who had worked under Republican and Democratic administrations and introducing onerous work conditions he described as "Gestapoism" on workers she couldn't fire outright.
Miller said she was also rolling back Chesapeake Bay protections.
"She totally undermined the agency," Miller said.
Hogan reappointed both officials after the legislature adjourned for the year.
Schrader is a former Howard County Council member who also served as former Gov. Robert L Ehrlich Jr.'s homeland security chief and Hogan's appointments secretary. Peters was a member of the Mount Airy Town Council before losing a race for the House of Delegates in 2014.