Two members of Maryland Gov. Larry Hogan’s Cabinet are suing the state government over actions by the General Assembly and Treasurer Nancy K. Kopp (D) that blocked their pay, escalating an already ugly feud between the Republican governor and leading Democrats.
In a lawsuit filed Wednesday in Anne Arundel County Circuit Court, acting health secretary Dennis Schrader and acting planning secretary Wendi Peters said they are entitled to regular payment of their salaries as state employees.
The complaint alleges that the General Assembly, where Democrats hold strong majorities in both chambers, “unconstitutionally exceeded its budget authority” and “violated the separation of powers doctrine” by enacting a measure that bars the state from paying the salaries of acting secretaries if the Senate has rejected or not voted on whether to confirm them during a legislative session.
It also claims Kopp, whose office dispurses state paychecks, overstepped her authority by denying compensation to Schraeder and Peters as of July 1, the start of a new fiscal year. The treasurer based her action on advice from Maryland Attorney General Brian E. Frosh (D), who said in June that the new state law meant the government cannot legally pay unconfirmed executive appointees.
A spokeswoman for Frosh said the attorney general’s office is reviewing the lawsuit. She declined to provide further comment.
Hogan (R) nominated Peters and Schrader to their positions in 2016, after the legislature had adjourned for the year. He withdrew Schrader’s nomination late in the 2017 session, with his spokesman, Doug Mayer later saying the governor anticipated the appointment would be blocked because the Senate nominations committee had not scheduled a vote on it.
Hogan withdrew Peters’ nomination after the Senate panel rejected her as unqualified, a description that the governor’s office vigorously disputes. The governor then reappointed both officials in an acting capacity after the 2017 session ended.
Mayer said Thursday that the administration “fully supports this lawsuit being filed.”
“The actions that are currently being taken to prevent these hard-working public servants from being paid are illegal, unconstitutional and outrageous,” he said.
Senate President Thomas V. Mike Miller Jr. (D-Calvert) said he looks forward to the issue being resolved in court, adding that Hogan “neither appreciates or understands the concept of divided government ... with its carefully balanced system of checks and balances.”
Frosh has said that “nothing in the Maryland Constitution prevents the governor from choosing as his recess appointee the person whose nomination had been submitted but then withdrawn.” But he also said that the General Assembly has well-established authority “to strike ... the entire appropriation for a position in state government.”
In their lawsuit, the plaintiffs pointed to a section of the state constitution’s limits on legislative budgeting authority that says “the salary or compensation of any public officer shall not be decreased during his term of office.”
The governor’s chief legal counsel, Robert F. Scholz, made similar arguments in a July letter to Frosh. The governor is not a plaintiff in the lawsuit.
State Comptroller Peter Franchot (D), whose office processes state payroll, said in July that the state would pay Schrader and Peters despite the budget language, but his office asked Frosh to seek judicial review of the matter. Days later, Kopp notified the comptroller’s office of her decision to withhold the officials’ pay.
A spokeswoman for Kopp’s office declined to respond Thursday, citing a policy of not commenting on pending litigation.
The plaintiffs argued that the treasurer “has no constitutional or statutory authority to dishonor the Comptroller’s payroll warrant, withhold salary checks ... or otherwise decline to make disbursement of these salary payments.”
Schrader’s annual salary is $174,417, and Peters’s is $137,749. The officials are asking that the court order the state to pay their salaries — including backpay for the checks that were withheld — and decide whether the legislature and treasurer exceeded their constitutional authorities.