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Feud over unpaid, unconfirmed Hogan appointees headed to court

Two of Gov. Larry Hogan's Cabinet secretaries filed a lawsuit against the Maryland treasurer Thursday demanding pay for their work.

Their action sends a feud between the Republican governor and leading Democrats into the court system, escalating a fight over constitutional limits on Hogan's power to make recess appointments.

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Caught in the middle of the fight are two recess appointees who remain on the job but haven't been paid since July 1 — acting Health Secretary Dennis R. Schrader and acting Planning Secretary Wendi Peters.

Treasurer Nancy K. Kopp stopped issuing checks to the two Cabinet secretaries when the new fiscal year started last month, saying she had no choice because a provision in the state budget bill passed by the General Assembly forbids payments to administration appointees who were nominated but not confirmed by the Maryland Senate. Attorney General Brian E. Frosh's office has issued an opinion that Hogan had the right to reappoint the two officials but that the budget language also is constitutional.

Hogan has disagreed and vowed to fight for his appointees.

Chief Deputy Treasurer Bernadette T. Benik said her office does not comment on pending litigation and the attorney general would defend her agency in court. A spokeswoman for Frosh said the attorney general's office is reviewing the lawsuit.

Lawyers for Schrader and Peters wrote in the lawsuit that the General Assembly had violated the state's separation of powers provisions and unconstitutionally written a law specifically targeting them. The lawyers also wrote that Kopp did not have the power to withhold her signature from the paychecks.

They are asking a judge to order the treasurer to pay Schrader and Peters and rule that the Assembly acted unlawfully.

"The case presents important constitutional questions about the separation of powers which obviously need resolution," said Timothy Maloney, a lawyer for the two appointees.

Hogan has accused Maryland Senate President Thomas V. Mike Miller, a Democrat who represents parts of Calvert and Prince George's counties, of unethically holding the appointments hostage to gain leverage in an unrelated matter. Miller denies that.

In a statement released Thursday, Miller said, "Hogan neither appreciates or understands the concept of divided government adopted by our forefathers and embedded in our Constitution with its carefully balanced system of checks and balances."

Miller said he could not comment further because Maloney has previously represented him and his family and is on retainer with Miller's law firm. He said that conflict "needs to be resolved before this case moves forward."

The governor nominated Peters and Schrader to their jobs in 2016, but when their confirmation by the Senate appeared in doubt this year, Hogan withdrew the nominations. He reappointed them to their jobs after the legislature adjourned for the year in April.

Maryland senators, who anticipated the reappointments, argued that the action would circumvent their constitutional responsibility to advise and consent to the governor's appointments. They persuaded other legislators to withhold salaries from recess appointees who had been rejected or not voted on by the Senate.

That's not allowed, the nominees' lawyers say.

"The Constitution does not prohibit the Governor from or limit the Governor's power to reappoint withdrawn candidates as he did here," they wrote the lawsuit. "The Governor has wide discretion in nominating candidates for public office, including the ability to withdraw nominees that have not been voted on by the Senate."

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Hogan's spokesman said the administration "fully supports" the suit.

"These secretaries are legally serving in their positions and the state has a legal obligation to pay them," spokesman Doug Mayer said in a statement. "The actions that are currently being taken to prevent these hard working public servants from being paid are illegal, unconstitutional, and outrageous."

Schrader earned an annual salary of $174,417. Peters earned $137,749.

Last month, Hogan accused Miller of demanding that the administration block a state commission's decision to allow open-heart surgery at Anne Arundel Medical Center. Miller and others say the open-heart program would compete with a similar program at a planned teaching hospital in Prince George's County.

Hogan said Miller threatened to hold up Schrader's confirmation unless the governor intervened in the open-heart surgery decision, which was made by the Maryland Health Care Commission. Hogan said he refused to intervene.

Miller has called the accusations "an outright lie."

A Prince George's County circuit judge in June stopped Anne Arundel Medical Center from opening its cardiac surgery program after two hospitals challenged the commission's decision to allow it. The judge is reviewing that decision.

Baltimore Sun reporter Ian Duncan contributed to this article.

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