Ehrlich fails to name a new secretary of the environment

Governor misses deadline set by state constitution

April 09, 2003|By David Nitkin | David Nitkin,SUN STAFF

The General Assembly session ended this week without Gov. Robert L. Ehrlich Jr. naming a new environmental secretary, an apparent violation of the Maryland Constitution.

In March, the Senate rejected the nomination of Lynn Y. Buhl, Ehrlich's choice to run the Maryland Department of the Environment, creating a vacancy at the head of the agency.

It was the first time that the legislature has rejected a governor's pick, a high-profile setback to the new Republican administration. Ehrlich says he still wants Buhl -- a former Chrysler Corp. attorney and a midlevel bureaucrat in Michigan -- in Maryland, and she is still serving as acting secretary.

But Article II, Section 14 of the Maryland Constitution requires a governor to "nominate to the Senate before its final adjournment, a proper person to fill said vacancy," if a vacancy occurs during the session in an office filled by the governor and subject to Senate confirmation.

The governor did not make a new nomination by the end of the session at midnight Monday.

Asked about the requirement, Jervis S. Finney, legal adviser to Ehrlich, said he had not previously considered it. "The governor has directed me to research the constitutional provisions and the relevant case law," Finney said yesterday. "The governor did not violate anything, but the question arises whether counsel to the governor should have been more alert."

Robert Zarnoch, an assistant attorney general and counsel to the Assembly, said there is little consequence to a violation. The constitution also requires that legislative vacancies be filled by the governor within 15 days, but his office has determined that "that doesn't really mean what it says," he said.

"There may be a conflict between appointing somebody in a timely fashion, and someone who is qualified," Zarnoch said. "It's understandable that if the Senate rejects someone, the governor would want to take the time to find someone who would meet with the approval of the Senate. ... Is there justification under the circumstances? Yes."

Greg Massoni, a spokesman for the governor, said yesterday that Ehrlich is not actively searching for a replacement for Buhl, though Zarnoch said the administration must find a new secretary "with reasonable promptness and good faith."

"It is going to be difficult to find somebody who is going to want to go through that process," Massoni said.

Environmental activists say they're troubled the department has no confirmed leader. "If you've got a gripe with the Department of the Environment today, you've got a legitimate argument to take to court," said Terry Harris, head of the Cleanup Coalition.

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