Ho­gan’s or­der on school start roil­ing pol­i­tics, par­ti­san roles

State trea­surer calls move ‘abuse of ex­ec­u­tive power’

Baltimore Sun - - FRONT PAGE - By Erin Cox

Gov. Larry Ho­gan’s ex­ec­u­tive or­der to start school after La­bor Day con­tin­ues to roil Mary­land pol­i­tics, re­vers­ing tra­di­tional par­ti­san roles and on Wed­nes­day ex­pos­ing a new vein of con­tro­versy.

Dur­ing the first Board of Pub­lic Works meet­ing since he an­nounced the or­der last week, state Trea­surer Nancy K. Kopp turned to Ho­gan on Wed­nes­day morn­ing and flatly called the move an “abuse of ex­ec­u­tive power.”

“It was a mis­use of au­thor­ity,” said Kopp, a Demo­crat who serves on the three-mem­ber panel with the Repub­li­can gover­nor. “We’ll see how it plays out.”

She said she was await­ing Mary­land At­tor­ney Gen­eral Brian E. Frosh’s for­mal opin­ion on the mat­ter.

“We’re just do­ing the peo­ple’s busi­ness,” Ho­gan replied. “We­have ev­ery right to do so.”

“I ap­pre­ci­ate your opin­ion,” the gover­nor added. “It just hap­pens to be wrong.”

The ex­change brought into the pub­lic eye a fight that has been grow­ing be­hind the scenes over the le­gal­ity and im­plica-

tions of the gover­nor’s or­der re­quir­ing schools to start after La­bor Day next year and end by June 15.

Repub­li­cans are prais­ing the gover­nor’s ac­tion as de­ci­sive but have sharply com­plained when ex­ec­u­tive or­ders have been used by Pres­i­dent Barack Obama, a Demo­crat. Democrats, mean­while, are em­ploy­ing the com­mon Repub­li­can re­frain that lo­cal de­ci­sions are best left to lo­cal of­fi­cials.

“The in­con­sis­tency of this is tremen­dous,” said Todd Eberly, a po­lit­i­cal sci­en­tist at St. Mary’s Col­lege. “When you have di­vided par­ties and the stakes are high, the ends will al­ways jus­tify the means.”

Top Democrats worry that if Frosh ap­proves of Ho­gan’s ex­ec­u­tive or­der, the pop­u­lar gover­nor would gain an­other ar­row in his quiver for deal­ing with the Demo­cratic-dom­i­nated leg­is­la­ture.

While the gover­nor needs a ma­jor­ity of law­mak­ers to ap­prove leg­is­la­tion he re­quests, a pol­icy in­sti­tuted by ex­ec­u­tive or­der be­comes law un­less a su­per-ma­jor­ity of both houses of the Gen­eral As­sem­bly dis­agrees.

In a phone call with Frosh last week, House Speaker Michael E. Busch ar­gued that any­thing short of declar­ing the gover­nor’s ac­tion il­le­gal would set a bad prece­dent.

“You’re go­ing to em­power this guy to con­tinue to roll out these ex­ec­u­tive or­ders rather than pro­pose leg­is­la­tion,” Busch told Frosh, a fel­low Demo­crat.

Busch later elab­o­rated in an in­ter­view with The Bal­ti­more Sun: “Where does it stop? Is the gover­nor go­ing to be de­cid­ing what books are go­ing to be read in schools?

“It’s a bad prece­dent to start,” he said. “It’s ex­actly what the na­tional Repub­li­cans are com­plain­ing about right now.”

Ho­gan’s an­nounce­ment on the Ocean City board­walk last week that “school after La­bor Day is now the law of the land in Mary­land” sparked tan­dem de­bates. One is play­ing out in ed­u­ca­tion cir­cles, where pro­fes­sion­als ques­tion the wis­dom of set­ting a school cal­en­dar around the La­bor Day hol­i­day. The other, in po­lit­i­cal cir­cles, is whether Ho­gan used the levers of power at his dis­posal ap­pro­pri­ately, and what the move por­tends for the fu­ture.

A Ho­gan spokesman said the ac­tion on the school cal­en­dar was not part of a plan to use ex­ec­u­tive or­ders more. “This was a par­tic­u­lar mo­ment and a par­tic­u­lar is­sue,” Doug Mayer said.

“The gover­nor is­sued this ex­ec­u­tive or­der be­cause he was tired of watch­ing the ma­jor­ity lead­er­ship of the Gen­eral As­sem­bly fail to act on some­thing their own task force rec­om­mended and that nearly ev­ery Mary­lan­der wants,” Mayer said. “The ques­tion is, why was he put in the po­si­tion to do it? Why wasn’t this al­ready done?”

A task force cre­ated by the leg­is­la­ture in 2014 rec­om­mended start­ing the pub­lic school year after La­bor Day. Law­mak­ers have voted down pro­pos­als to man­date start­ing school after the Septem­ber hol­i­day statewide at least twice, say­ing the de­ci­sion was bet­ter left to lo­cal govern­ments.

In is­su­ing the ex­ec­u­tive or­der, the Ho­gan ad­min­is­tra­tion re­lied on the ad­vice of the gover­nor’s le­gal of­fice. Ho­gan has said “there is no le­gal ar­gu­ment what­so­ever” against the ac­tion.

The scope and breadth of Ho­gan’s or­der is un­usual but not un­prece­dented, ac­cord­ing to sev­eral for­mer state of­fi­cials who have worked with ex­ec­u­tive or­ders.

“Typ­i­cally, it is for emer­gency sit­u­a­tions,” said John T. Wil­lis, who was sec­re­tary of state un­der Gov. Par­ris N. Glen­den­ing.

Wil­lis, now ex­ec­u­tive in res­i­dence at the Univer­sity of Bal­ti­more’s School of Pub­lic and In­ter­na­tional Af­fairs, said more chief ex­ec­u­tives have been em­ploy­ing the tool dif­fer­ently in re­cent years, in­clud­ing Obama’s ac­tions on im­mi­gra­tion and Vir­ginia Gov. Terry McAuliffe’s or­der to re­store vot­ing rights to felons.

Repub­li­cans in that state fought the Demo­crat’s ex­ec­u­tive or­der in Vir­ginia courts, some­thing ob­servers pre­dicted that Democrats would do in Mary­land.

“Ex­ec­u­tives ... who are un­able to get an agenda through the nor­mal leg­isla­tive process are seek­ing ways that are out­side the nor­mal, ac­cepted process,” Wil­lis said.

For­mer Mary­land At­tor­ney Gen­eral Dou­glas F. Gansler re­called that Ho­gan’s Demo­cratic pre­de­ces­sor, Martin O’Mal­ley, also is­sued ex­ec­u­tive or­ders out­side tra­di­tional cir­cum­stances.

One re­quired new homes with sep­tic sys­tems to use costly, state-of-the-art tech­nol­ogy to limit pol­lu­tion. Last month, Ho­gan re­versed that or­der for most homes.

“Most gover­nors don’t overuse the priv­i­lege,” Gansler said.

Frosh’s of­fice has not said when he will is­sue an opin­ion on Ho­gan’s or­der. And when he does, it won’t nec­es­sar­ily be re­leased to the pub­lic.

Repub­li­can strate­gist Richard Cross said that in the court of pub­lic opin­ion, it won’t mat­ter what Frosh says.

He called Ho­gan’s or­der “re­ally smart pol­i­tics.”

“Peo­ple don’t care about the process,” Cross said. “Peo­ple care about the re­sult. ... This is a highly pop­u­lar is­sue for cit­i­zens.”

Some Repub­li­cans who are de­fend­ing Ho­gan’s use of ex­ec­u­tive power crit­i­cized O’Mal­ley and Obama for us­ing it.

“I’m not against all ex­ec­u­tive or­ders,” said state Sen. Justin D. Ready, a Car­roll County Repub­li­can and for­mer ex­ec­u­tive di­rec­tor of the state GOP.

Ready teased his Demo­cratic col­leagues on Twit­ter last week for fi­nally see­ing the wis­dom of lo­cal con­trol.

“It’s not like this is the gover­nor com­ing out with a pol­icy to force all coun­ties to have vouch­ers or some­thing,” Ready said. “It’s a pretty nar­row pol­icy.”

Del. Eric G. Luedtke said the point is that Ho­gan could is­sue more sweep­ing or­ders about ed­u­ca­tion pol­icy. The Mont­gomery County Demo­crat, a for­mer his­tory teacher, said Mary­land Democrats have long prided them­selves on ad­vo­cat­ing for lo­cal con­trol of schools.

“Par­ents and school boards are bet­ter at fig­ur­ing out these things than one guy in An­napo­lis,” Luedtke said.

He said Democrats are wor­ried about what Ho­gan’s ex­ec­u­tive or­der might sig­nal about his fu­ture plans.

“It re­flects the un­will­ing­ness of the gover­nor to en­gage with the leg­is­la­ture in what’s be­com­ing a pat­tern,” Luedtke said.

Ho­gan’s spokesman dis­missed such con­cerns. “The gover­nor has a long his­tory of be­ing open with work­ing on both sides of the aisle,” Mayer said.

“It was a mis­use of au­thor­ity.”

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