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April 3, 2006

General Assembly Journal 2006 – Part 13

Richard B. Weldon Jr.

Miller-Bucsh-eysnickets: A Series of Unconstitutional Acts

With eight days left in the session, a flurry of activity is underway in the legislature that would fundamentally and irrevocably alter the balance of power as defined by the Constitution of the State of Maryland.

Understand that this charge is not made lightly. The state constitution very clearly lays out the powers, duties, and responsibilities of the governor and the legislature.

For Maryland’s previous history, the General Assembly was satisfied to accept the fact, codified in Maryland’s Constitution, that the governor, acting in his role as chief executive, had the authority and responsibility to select the members of his administration.

Whether the appointment was a senior policy maker or a lower level agency appointment, there was nary a peep from the House or Senate over the choices or preferences of Governors Marvin Mandel, Harry Hughes, William Donald Schaefer, or Parris Glendening.

Even when political appointees did dumb or even questionable things, there was no rush to amend or alter the powers of the governor to appoint the people of his choosing. It is amazing how the election of a Republican governor has changed the landscape.

Don’t take my partisan view, though. You can draw your own conclusions. Below you’ll find a list of bills and a synopsis of each one. You can draw your own opinion by reading the non-partisan Policy Note synopsis; then I’ll add my political two-cents.

Senate Bill 1068: The Anti-Larry Hogan Act

Bill Synopsis (from the Fiscal & Policy Note)
This bill prohibits the Governor’s Appointments Office from superseding or interfering with any function of the Secretary of Budget and Management regarding the State’s personnel systems, as assigned by law to the Secretary. Moreover, the bill prohibits the Governor from delegating any authority or duty with respect to the State’s personnel systems, including the hiring and termination of at-will and special appointees, to the Appointments Office, or to any other unit, officer, official, or employee in the Office of the Governor or the Executive Branch.

My two cents: The Governor’s Appointments Office is the agency of the Executive Branch that assists the governor by coordinating agency vacancies, fielding requests for appointments from around the state, “vetting” the candidates, conducting background investigations, and making recommendations to the governor for the actual appointments. This bill would prohibit the Appointments Secretary (who happens to be Larry Hogan, Del. Patrick Hogan’s older brother) under Gov. Bob Ehrlich from doing what the previous Appointment Secretary’s have done under every past Democrat’s administration. Larry and his team have dealt with over 6,000 appointments; and have coordinated the hiring of an unprecedented number of opposite-party members, many in very high positions in state government.

Senate Bill 1069

Bill Synopsis (from the Fiscal & Policy Note)
This bill requires each principal unit within the State Personnel Management System (SPMS) to develop and maintain written personnel policies and practices with respect to recruitment, training, supervision, and the evaluation of all its employees. The bill also requires these policies and practices to be reviewed at least annually and revised and reissued as necessary. An employee’s personnel files must be retained for five years after termination. The bill further provides that special appointments in the skilled, professional, and management services must be provided with a written position description and evaluated as prescribed in statute.

My two cents: This bill appears to require that all state agencies have a job description and receive a performance evaluation. This is already standard practice. In fact, the issue is positions identified as special appointments, which are filled by the governor. The State Department of Budget and Management indicates that most of these special appointments already have position descriptions, regular evaluations, and their personnel records are kept for five years (or longer). This is being done to place additional controls over gubernatorial appointments. Why bother if Senator Mike Miller and Speaker Michael Busch think Martin O’Malley will win the governor’s race in November? Because they just can’t live with divided government, that’s why!

Senate Bill 1071

Bill Synopsis (from the Fiscal & Policy Note)
This bill establishes a Task Force to Study the State Personnel Management System (SPMS) and law to (1) review SPMS law and regulations, particularly as they relate to special appointment positions and the procedure for the creation of special appointments; (2) review and build on information and data provided to the Special Committee on State Employee Rights and Protections by the Department of Legislative Services; (3) thoroughly review the extent to which the 1996 personnel reforms may have led to unintended consequences; and (4) make recommendations for appropriate and effective legislative and administrative changes to the State’s personnel systems. The task force must report its findings and recommendations to the President of the Senate and Speaker of the House of Delegates by December 31, 2006. DLS will staff the task force.

My two cents: This might be the worst of the whole lot of unconstitutional acts. The Special Committee on State Employee Rights and Protections has been a tremendous waste of resources, both time and money. This “special committee” rang up over $1 million dollars in expenditure, several large public meetings, and scores of witnesses who were motivated by nothing more than partisanship. This task force would continue the waste of time and money, and allow the Democrats who have lent their voice to this bogus effort to continue the rant through November’s election. The most sinister aspect of this bill is the fact that the governor appoints one member of a 17-member panel. The Speaker appoints three, the President of the Senate appoints three, and even Attorney General Joe Curran (Baltimore Mayor Martin O’Malley’s father-in-law) gets to pick an appointee. These partisan-motivated political enemies of Governor Ehrlich get to stuff the task force with people who share their opinion.

SB 1072

Bill Synopsis (from the Fiscal & Policy Note)
This bill specifies the powers and duties that are within the exclusive authority of appointing authorities in the State Personnel Management System (SPMS); including the authority to appoint, promote, transfer, reassign, discipline, and terminate employees under the appointing authority’s jurisdiction. Except for making the final decision on the termination of an employee, the appointing authority may delegate in writing the authority to act on his/her behalf to any other employee or officer under the appointing authority’s jurisdiction. An appointing authority must notify the Secretary of Budget and Management of any authorized delegation of authority.

My two cents: This bill would completely change the process through which the governor appoints personnel to serve his/her administration. If Democrats really believed that these fundamental changes were necessary, why didn’t they implement the restrictions and controls during any of the previous administration? The fact is that they only want to do this on the outside chance that Governor Ehrlich is re-elected. Call it a preemptive strike. They want to force Governor Ehrlich to follow a process they define, so this is the legislature forcing the executive branch to accept their influence.

SB 1075: The Anti-Bob Flanagan Act

Bill Synopsis (from the Fiscal & Policy Note)
This bill requires a second-term Governor who carries over any principal department Secretary to reappoint that Secretary with the advice and consent of the Senate.

My two cents: Robert Flanagan, the Secretary of Transportation (and a former Republican delegate from Howard County), has angered and upset the Democratic leadership and the statue quo defenders, and is a target for Senate President Mike Miller. Senator Miller has been quoted saying that there is no way that Secretary Flanagan would ever be reappointed by the State Senate. This bill would require Governor Ehrlich to re-submit his cabinet officers to the State Senate if he is reelected. Again, Ehrlich can take some solace in the fact that the Democrats must at least think he has a shot at winning in November, otherwise why waste all this time and effort? Secretary Flanagan has done a good job, but he doesn’t genuflect to Mike Miller. I had the rare opportunity to send a subtle message to the Senate president myself. Last Thursday, my committee was scheduled for a bill hearing. When we arrived in the committee room at 1P.M., we had a calendar of the bills we were scheduled to hear. Within a few minutes, staff came around with a new calendar, this one included SB 1075. I quickly polled the other Republicans, and got them all to agree that if President Miller showed up for his bill hearing, we would all get up and walk out of the hearing room as a sign of protest. Sure enough, he showed up. When Chairman Pete Hammen (D., Baltimore City) introduced Senator Miller, we all got up and walked out. A collective gasp ran through the room as we adjourned to the committee’s office suite. We returned after Senator Miller had left, and resumed our seats. This minor civil disobedience garnered wide media attention, even working its way into the lead story above the fold in the Weekend Gazette.

SB 1102: The Anti-Ken Schisler Act

Bill Synopsis (from the Fiscal & Policy Note)
This emergency bill alters the appointment process for members of the Public Service Commission (PSC). The bill also makes the Office of the People’s Counsel (OPC) a unit of the Office of the Attorney General and the People’s Counsel appointed by and serving at the pleasure of the Attorney General. The PSC commissioners and the People’s Counsel in office on the bill’s effective date shall be removed on June 30, 2006.

My two cents: Senate President Mike Miller, Speaker Mike Busch, and a whole bunch of incumbent delegates and senators are scrambling to distance themselves from the horrors wrought by the utility de-regulation bill. The proposed BGE/Constellation merger is providing fodder for this blame shifting, but the potential for huge rate increases is ratcheting up the pressure on the Democrats who pushed for deregulation in 1998.

Senate President Miller has found his scapegoat in the members of the Public Service Commission, especially Chairman Ken Schisler. Mr. Schisler has been communicating with representatives of the utility industry, and some of those emails have found their way into the BS (Baltimore’s Sun).

First we direct our PSC chairman to build relationships in order to develop competitive markets, and then we criticize him for trying to do so. Senator Miller is cagey enough to know that if can make Chairman Schisler and the PSC commissioners (mostly Ehrlich appointees, none of whom were in office when the legislature passed deregulation), he can keep the mess from splashing back on him.

The latest idiotic scheme is SB 1102, which would take the ability to appoint PSC commissioners away from the governor. This bill would let the President of the Senate appoint one commissioner, the Speaker of the House appoint one, the Attorney General (remember, Mayor O’Malley’s father-in-law?) would appoint one, and finally, the governor would be able to appoint the remaining two members.

As if this weren’t enough of an incursion into executive authority, the Office of the People’s Counsel, the only legal body whose only client is the residential ratepayer, would be eliminated, and all of the classified employees would be transferred to the Attorney General’s office (once again, Mayor O’Malley’s father-in-law). In a moment of stunning irony, Attorney General Joseph Curran’s son Max was a member of the Public Service Commission that failed to develop a competitive market for power during the deregulation years.

The sum of all of this work is that the House and Senate leadership is either so concerned that Governor Ehrlich will be re-elected that they feel compelled to change every single aspect of his firing of his advisors and team members, or they are so desperate to shift Maryland voters focus away from his accomplishments that they’re willing to destroy the constitutional balance of power to do so.

If they weren’t already so embarrassing in their willingness to trample on tradition to retain their grip on power, this would be laughable. As it is now, it’s just very sad to see the level of desperation and deception demonstrated by the Democrat power mongers in Annapolis.

Update as of April 2, 2006

SB 1068, 1069, 1071, and 1072 were all “re-referred” back to the Senate Finance Committee. That means one of several things. First, the sponsor [Sen. Thomas “Mac” Middleton (D., Charles)], chairman of the Finance Committee, may have just put the bills in to scare the administration. Second, he may have introduced these bills to dilute the focus on SB 1075/1102, which Senate President Miller really wanted to pass. Finally, they may have been sent back to committee because the Democrats felt they were losing the public opinion battle.

Senate Bill 1075 and Senate Bill 1102 passed both chambers with veto-proof majorities, although a number of Democrats defected in the House. The final House vote on HB 1075, the bill requiring the reconfirmation of Ehrlich’s cabinet for a second term was 89-48, and there are only 43 Republicans. The Democrats can override the governor’s veto with 84 votes, so that is likely outcome here.

The story on Senate Bill 1102, the act to fire the Public Service Commission, was even more muddled. The final vote here was 87-48, but the mix was truly odd. A number of Baltimore County Republicans voted for the measure, while a number of Democrats, especially those not served by BG&E, abandoned their party. Clearly, legislators concerned about immediate rate hikes for BG&E customers are scrambling to find others to blame for the rates; so they’re willing to throw the PSC under the bus, even though the legislature is more responsible for the increases due to deregulation.

One vote was missing throughout all of Friday’s voting. I was lying in Anne Arundel Medical Center, undergoing a series of cardiac and blood pressure tests. I was taken there after experiencing some pressure in my upper chest and having a BP reading of 168/98. Trust me; I would rather have been in my seat on the Floor than lying in the cardiac ER!

The sad footnote in one of the darkest days in Annapolis is that the Senate and House leadership didn’t just demean the integrity of our institution on Friday. They brought disgrace and discredit on themselves and every single member of their party (and mine) that voted to diminish the powers of the governor. Do you believe for one second that if a Democrat is elected governor, the legislative leaders will retain these foolish and partisan policies? Of course they won’t; they’ll just use their monopoly on power to roll back the changes.

You see, in the end, that’s the fundamental difference between Republicans and Democrats in Maryland. In spite of what you’ve read in the Washington and Baltimore papers (even here on The Tentacle occasionally), Democrats will stop at nothing to retain their tenuous grip on political power. They will cheat, manipulate, and fundamentally alter the rules and procedures to make sure they can manage the Annapolis workload to their satisfaction.

My theory is that they have gone too far with the 2006 General Assembly session. Even the most jaded political observers can see that, and preliminary polling indicates that Maryland’s voters see it, too!

Yellow Cab
The Morning News Express with Bob Miller
The Covert Letter

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