A week later, Hogan's executive order on Labor Day still roiling Maryland politics

Erin Cox
Contact ReporterThe Baltimore Sun
Kopp: Hogan's executive order on post-Labor Day school start a "misuse of authority." Hogan: "Wrong."

Gov. Larry Hogan's executive order to start school after Labor Day continues to roil Maryland politics, reversing traditional partisan roles and on Wednesday exposing a new vein of controversy.

During the first Board of Public Works meeting since he announced the order last week, state Treasurer Nancy K. Kopp turned to Hogan on Wednesday morning and flatly called the move an "abuse of executive power."

"It was a misuse of authority," said Kopp, a Democrat who serves on the three-member panel with the Republican governor. "We'll see how it plays out."

She said she was awaiting Maryland Attorney General Brian E. Frosh's formal opinion on the matter.

"We're just doing the people's business," Hogan replied. "We have every right to do so."

"I appreciate your opinion," the governor added. "It just happens to be wrong."

The exchange brought into the public eye a fight that has been growing behind the scenes over the legality and implications of the governor's order requiring schools to start after Labor Day next year and end by June 15.

Republicans are praising the governor's action as decisive but have sharply complained when executive orders have been used by President Barack Obama, a Democrat. Democrats, meanwhile, are employing the common Republican refrain that local decisions are best left to local officials.

"The inconsistency of this is tremendous," said Todd Eberly, a political scientist at St. Mary's College. "When you have divided parties and the stakes are high, the ends will always justify the means."

Top Democrats worry that if Frosh approves of Hogan's executive order, the popular governor would gain another arrow in his quiver for dealing with the Democratic-dominated legislature.

While the governor needs a majority of lawmakers to approve legislation he requests, a policy instituted by executive order becomes law unless a super-majority of both houses of the General Assembly disagrees.

In a phone call with Frosh last week, House Speaker Michael E. Busch argued that anything short of declaring the governor's action illegal would set a bad precedent.

"You're going to empower this guy to continue to roll out these executive orders rather than propose legislation," Busch told Frosh, a fellow Democrat.

Busch later elaborated in an interview with The Baltimore Sun: "Where does it stop? Is the governor going to be deciding what books are going to be read in schools?

"It's a bad precedent to start," he said. "It's exactly what the national Republicans are complaining about right now."

Hogan's announcement on the Ocean City boardwalk last week that "school after Labor Day is now the law of the land in Maryland" sparked tandem debates. One is playing out in education circles, where professionals question the wisdom of setting a school calendar around the Labor Day holiday. The other, in political circles, is whether Hogan used the levers of power at his disposal appropriately, and what the move portends for the future.

A Hogan spokesman said the action on the school calendar was not part of a plan to use executive orders more. "This was a particular moment and a particular issue," Doug Mayer said.

"The governor issued this executive order because he was tired of watching the majority leadership of the General Assembly fail to act on something their own task force recommended and that nearly every Marylander wants," Mayer said. "The question is, why was he put in the position to do it? Why wasn't this already done?"

A task force created by the legislature in 2014 recommended starting the public school year after Labor Day. Lawmakers have voted down proposals to mandate starting school after the September holiday statewide at least twice, saying that the decision was better left to local governments.

In issuing the executive order, the Hogan administration relied on the advice of the governor's legal office. Hogan has said "there is no legal argument whatsoever" against the action.

The scope and breadth of Hogan's order is unusual but not unprecedented, according to several former state officials who have worked with executive orders.

"Typically, it is for emergency situations," said John T. Willis, who was secretary of state under Gov. Parris N. Glendening.

Willis, now executive in residence at the University of Baltimore's School of Public and International Affairs, said more chief executives have been employing the tool differently in recent years, including Obama's actions on immigration and Virginia Gov. Terry McAuliffe's order to restore voting rights to felons.

Republicans in that state fought the Democrat's executive order in Virginia courts, something several observers predicted that Democrats would do in Maryland.

"Executives ... who are unable to get an agenda through the normal legislative process are seeking ways that are outside the normal, accepted process," Willis said.

Former Maryland Attorney General Douglas F. Gansler recalled that Hogan's Democratic predecessor, Martin O'Malley, also issued executive orders outside traditional circumstances.

One required new homes with septic systems to use costly, state-of-the-art technology to limit pollution. Last month, Hogan reversed that order for most homes.

"Most governors don't overuse the privilege," Gansler said.

Frosh's office has not said when he will issue an opinion on Hogan's order. And when he does, it won't necessarily be released to the public.

Republican strategist Richard Cross said that in the court of public opinion, it won't matter what Frosh says.

He called Hogan's order "really smart politics."

"People don't care about the process," Cross said. "People care about the result. ... This is a highly popular issue for citizens."

Some Republicans who are defending Hogan's use of executive power criticized O'Malley and Obama for using it.

"I'm not against all executive orders," said state Sen. Justin D. Ready, a Carroll County Republican and former executive director of the state GOP.

Ready teased his Democratic colleagues on Twitter last week for finally seeing the wisdom of local control.

"It's not like this is the governor coming out with a policy to force all counties to have vouchers or something," Ready said. "It's a pretty narrow policy."

Del. Eric G. Luedtke said the point is that Hogan could issue more sweeping orders about education policy. The Montgomery County Democrat, a former history teacher, said Maryland Democrats have long prided themselves on advocating for local control of schools.

"Parents and school boards are better at figuring out these things than one guy in Annapolis," Luedtke said.

He said Democrats are worried about what Hogan's executive order might signal about his future plans.

"It reflects the unwillingness of the governor to engage with the legislature in what's becoming a pattern," Luedtke said.

Hogan's spokesman dismissed such concerns.

"The governor has a long history of being open with working on both sides of the aisle," Mayer said. "He says he'll take any idea from any party, and you've seen it in his proposals."

ecox@baltsun.com

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