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Maryland attorney general: No paychecks for unconfirmed members of Hogan cabinet

Maryland's top lawyer says it's illegal for two of Gov. Larry Hogan's cabinet secretaries to continue receiving state paychecks.

The new opinion from Maryland Attorney General Brian E. Frosh, released Friday, escalates a months-long feud between the Republican governor and the Democrat-dominated General Assembly over the confirmation of two senior Hogan administration officials.

The governor dismissed Frosh's opinion, vowed to keep paying his staff, and requested that an outside lawyer represent his administration instead of the attorney general's office.

Democratic Comptroller Peter Franchot, a Hogan ally whose office processes paychecks, said he'd keep paying the two cabinet secretaries until a judge rules otherwise.

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Hogan has promised to keep his health and planning secretaries in their jobs even though the Maryland Senate did not confirm either of them during the 90-day General Assembly session this year. Nominees who fail to win confirmation are usually withdrawn and replaced with a new candidate, but the governor instead reappointed his nominees.

At the time, the governor criticized the nomination process as unfairly politicized, and later used recess appointments to bypass it. The General Assembly, frustrated by the governor's plan, passed a budget forbidding such unconfirmed nominees to draw a salary after July 1, when the new budget year takes effect. The first paychecks of the new year will be issued July 12.

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Key Democratic lawmakers contend Hogan's bypassing of the Senate's advice and consent power violates the Maryland Constitution. The governor, in turn, argues it's the General Assembly that overstepped its constitutional bounds by singling out specific executive branch employees to punish.

Meanwhile, acting Planning Secretary Wendi Peters and acting Health Secretary Dennis Schrader have continued to work. Peters' salary is $137,000; Schrader's is $174,000. Aides said Schrader spent this week negotiating the renewal of the Maryland's federal Medicaid waiver, which is worth roughly $2 billion to the state.

The Hogan administration said Friday it plans to fight to keep both officials on staff, and implied it would pursue legal action to do so.

"People who are legally allowed to serve the state deserve to get paid for their work, it's as simple as that," Hogan spokesman Doug Mayer said.

He called Frosh's advice on the matter "just one lawyer's opinion."

Mayer also said an assistant attorney general told the administration it was within its rights to reappoint the secretaries. He said the governor sought that advice before doing so.

This week, in response to a lawmaker's question, Frosh wrote a letter noting the appointments may not be valid. Regardless, he said, there is no legal way for the two acting cabinet secretaries to continue getting paychecks from taxpayers.

"You have asked whether Wendi Peters and Dennis Schrader may be paid a salary," Frosh wrote to Baltimore Sen. Bill Ferguson, chairman of the Executive Nominations Committee. "The answer is no."

Ferguson, a Democrat, said in an interview he is concerned that Hogan used a "gray area" of the Maryland Constitution to skip the confirmation process after it appeared the governor's nominees would not be confirmed by the Senate.

"It's not about these individual people," Ferguson said. "The constitution matters. When a governor feels like he or she is above the constitution, it's the constituents who suffer."

Senate Minority Leader J.B. Jennings, a Baltimore County Republican, said the confirmation of appointees is a crucial role for the Senate, regardless of the governor in power. He said he'd support legislation "to make sure this doesn't happen again."

"In this situation, we found that there was a loophole that allows the governor to withdraw nominees and reappoint them," Jennings said. "The governor didn't do anything wrong — the rules are the rules. The Senate wasn't moving on his nominees, so he did what he could to protect them."

The controversy started with contentious and delayed confirmation hearings in Ferguson's committee this winter. After Ferguson's committee voted to reject Peters' nomination, Hogan withdrew her from consideration. Hogan withdrew Schrader's nomination before the committee voted. He then re-appointed each to their jobs after the legislature adjourned for the year in April.

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Hogan's lawyer wrote in a letter to Frosh that the administration believes the appointments are valid, so the state has an obligation to pay.

"Common sense requires a conclusion that if the Governor has the authority to make the appointment, there is a related power and obligation to pay these secretaries for their service to the citizens of Maryland," wrote Robert F. Scholz, Hogan's chief legal counsel.

Scholz also asked Frosh to immediately hire an outside lawyer to represent the two cabinet secretaries and the governor.

After the dueling letters from lawyers, the comptroller drafted one telling the attorney general the conflicting opinions left his office "caught in the middle" of a constitutional dispute. He called it "highly unusual — and more significantly, an unprecedented situation."

Franchot's office said the comptroller was warned by the attorney general that he could face consequences for issuing paychecks when forbidden to do so by the General Assembly. But Franchot also needs legal advice on what happens if he doesn't pay people who deserve it, the comptroller wrote in his letter to the attorney general.

ecox@baltsun.com

twitter.com/ErinatTheSun

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