Setting up a potential constitutional clash, Gov. Larry Hogan reappointed two officials to his Cabinet on Wednesday who failed to make it through the confirmation process during the General Assembly session that ended this week.
Hogan named Dennis R. Schrader to head the Department of Health and Mental Hygiene despite withdrawing his name after a dispute with Maryland Senate Democrats.
He also announced he would keep Wendi Peters, whose nomination was turned down by the Senate Executive Nominations Committee but withdrawn before full Senate action, as acting planning secretary.
The governor's office contends that Hogan, who had signaled his intention to reappoint the officials, is within his rights under the law. The Democratic leaders of the Senate contend that Hogan is violating the Maryland Constitution.
"The advice-and-consent process is a fundamental tenet of American democracy and the separation of powers," said Sen. Bill Ferguson, chairman of the Executive Nominations Committee.
But Hogan spokesman Doug Mayer countered by saying that the Senate's nomination process this year was "very political" and asserted the governor's power to appoint whom he wants.
"The governor 100 percent has the power to withdraw and reappoint," Mayer said.
The reppointments came just one day after the Republican governor and the Democratic leaders of the General Assembly praised the bipartisan accomplishments of the legislative session. Hogan's actions raise questions about whether the Senate can block any individual from exercising the powers of a high state office if the governor is determined to appoint that person. If not resolved before January, the dispute could hang over any pending Hogan appointments that require confirmation.
Ferguson, a Baltimore Democrat, said Hogan's actions put the state and its citizens in jeopardy.
"The validity of the acting secretaries' power is in question as a result of the governor's decision because the governor has willfully bypassed the constitution," Ferguson said. In the case of the health department, he said, citizens could go to court to challenge enforcement decisions on the grounds that the secretary doesn't hold the office legally.
Seeing a confrontation looming, the legislature adopted budget language this year to bar the use of state funds to pay the salaries of secretaries or acting secretaries who were nominated during the session but who did not win confirmation before their names were withdrawn. That provision takes effect July 1.
"We think that's unconstitutional, and we think they know it," Mayer said.
A letter of advice dated March 15 from the state attorney general's office says that in Peters' case, "nothing prevents the governor from choosing as his recess appointee the person whose nomination had been submitted but then withdrawn" because she had not been rejected by the full Senate.
However, the letter also says the legislature may use the budget bill to block the payment of the salary of someone appointed after the session whom the committee had rejected and whose name had been withdrawn — as in the case of Peters. Lawmakers are waiting for answers to a request for an opinion on issues concerning Schrader.
Mayer said Hogan is relying on the advice of his own general counsel rather than the opinion of the office headed by Democratic Attorney General Brian E. Frosh.
Democrats on the executive nominations panel criticized Peters for her qualifications and her management of the Planning Department's workforce as acting secretary before the panel voted 11-6 to reject her. Mayer said the governor believed Democrats on the committee treated her in a sexist manner.
Schrader's nomination became caught up in a dispute over whether Hogan was adequately defending Maryland's interests in the Washington debate over repeal of the Affordable Care Act. .