Gov. Tim Walz said he didn’t see it coming.
Like nearly everyone involved in the third special session of the Minnesota Legislature — other than the 35 members of the Senate GOP caucus — Walz learned that Nancy Leppink would be removed as commissioner of the Department of Labor and Industry by text message just minutes before it happened Wednesday.
The sender was Senate Majority Leader Paul Gazelka. The time was 3:29 p.m. And the recipients of the message were Walz and Senate DFL leadership. Gazelka told the group he had the votes to oust Leppink.
House GOP Leader Kurt Daudt put it more bluntly: “Looks like the Senate is executing a prisoner today,” he tweeted during the debate on Leppink.
There was little the DFLers could do, but they were still angry that they hadn’t been given more notice. “We did not have any indication that this would happen,” Walz said Wednesday evening after the party-line vote. “I’m concerned that in the middle of a pandemic when we need stability … that we’ve been undermined in that.”
He said he would find a new appointee to carry out the same policies as Leppink.
A Two Harbors native, Leppink had been recruited to return to the state from Switzerland, where she was a top official at the International Labor Organization, which establishes global workplace safety standards. Labor groups — both liberal unions like the Service Employees International and more-conservative groups like the peace officers association and the building trades councils — opposed her removal.
Yet no one was alleging that Gazelka and the Senate majority didn’t have the ability to do what they did. Under the section of the Minnesota Constitution on the governor’s powers and duties, it says: “…with the advice and consent of the senate he may appoint notaries public and other officers provided by law.”
And though it’s happened before, it is unusual. According to the Legislative Reference Library, Leppink is just the seventh to be removed since 2000. The most recent removed commissioners were Education Commissioner Cheri Pierson Yecke in 2004 and Transportation Commissioner Carol Molnau in 2008, both appointed by GOP Gov. Tim Pawlenty and both not confirmed by DFL Senate majorities. (Molnau was also lieutenant governor and retained that elected position.)
Yet Leppink’s removal exposed an unusual feature of Minnesota government: Because appointees are allowed to serve pending confirmation — and because there is no deadline for action — many gubernatorial appointees are never confirmed, a situation that gives the state Senate an ever-present threat: If an appointee crosses the Senate majority, or if a governor angers them, they can strike.
It appears that Leppink’s removal was caused by a little of both. Earlier on Wednesday, the Senate had voted, mostly on party lines, to rescind Walz’s peacetime emergency declared to respond to COVID-19. It was the third time the chamber had done so and reflected an increasing frustration that Walz is not governing with legislators’ involvement.
But GOP senators also had a string of grievances about Leppink, from how she implemented a wage-theft law to her role in negotiating a deal to ease workers compensation eligibility for medical providers and first responders who get COVID-19; from how she enforced a requirement that wedding barns have fire sprinklers to rules on youth employment as applied to Paul Bunyan Land in Brainerd.
“We need a DLI commissioner whose priority is being responsive, supportive, and open to helping business, and not one who is interested in regulating, harassing, or closing businesses — especially as we plan safe reopenings during COVID,” Gazelka, of East Gull Lake, said.
Yet senatorial advice and consent is usually meant to come shortly after an appointment to assure someone is qualified, not as a way to sanction an appointee who, in the case of Leppink, has been on the job for 19 months.
At the Capitol, though, actual confirmation votes of appointees have become the exception, not the rule. Only three of Walz’s appointees have been confirmed by the Senate: Agriculture Commissioner Thomas Petersen; Office of Higher Education Commissioner Dennis Olson; and Public Utility Commissioner Valerie Means.
Just three others have even been formally considered by Senate committees: Iron Range Resource and Rehabilitation Commissioner Mark Phillips; Bureau of Mediation Services Commissioner Janet Johnson; and Department of Employment and Economic Development Commissioner Steve Grove. All of their appointments were sent to the Senate floor with recommendations that they be confirmed.
The rest sit and wait.
After Wednesday, it’s a wait that could be uncomfortable for some, since it appears that Gazelka is prepared to do it again. “There are a few commissioners that we want to have some informational hearings,” he said before adjourning the Senate Wednesday. “We think it’s prudent to take a look at some of the things that have been going on.”
Already scheduled is a meeting of the Senate Energy and Utilities Committee to “Consider the confirmation of Joe Sullivan to the Public Utilities Commission.” Also in the Senate’s sights are Commerce Commissioner Steven Kelley, Department of Natural Resource Commissioner Sarah Strommen, Health Commissioner Janet Malcolm and Grove.
Senate Minority Leader Susan Kent, D-Woodbury, complained that the vote was a surprise to her caucus and to Walz, saying it went against normal protocols and courtesies of the Senate. She said Gazleka even told her nothing controversial would come up in the single-day session other than the debate on emergency powers.
All the while, the DFL has been asking when the confirmation votes would be held for appointees who had been in place for 19 months. “These have been held back as some sort of political weapon,” Kent said. “We have to look at this process that they can use in a pure partisan way. Is this extortion — that unless the governor does some things they will threaten to take out another important leader?”
How will Walz respond?
Each time the governor has extended the emergency declaration, he has also signed a proclamation convening the House and Senate. But each time he has also said the law is vague — and that monthly special sessions might not be legally required.
Wednesday, before he knew the Senate would use the latest pandemic-related special session to dump Leppink, he said: “When this started there was no precedent and it’s very much a gray area on the use of Chapter 12, emergency powers,” he said. “No one actually anticipated them going beyond 30 days. We could probably have made the argument that (the Legislature didn’t) need to come back and revote on (emergency powers). We didn’t take that position. We said the Legislature needs to come back, they need to make the case, and if they’re able in the House and Senate to say, ‘No, we’re past this and we want to reassume these authorities,’ they would do so.”
But Walz said that knowing he has had the DFL-controlled House as a firewall — that any vote to rescind his emergency powers in the Senate would be voted down by the House. Bringing lawmakers back was not going to change his authority.
Might he think differently after Wednesday?
“We’re fighting a pandemic and the Senate is playing ‘Battleship’ with our commissioners,” is how one administration official phrased it.
That same source said Thursday that while the law says a session must be convened if an emergency is extended beyond 30 days, it doesn’t say a new session must correspond with every extension. In other words, the intent of the law might have been met with the first special session convened in mid-June.
That may or may not be a winning argument, but it may also not matter. Hamline University political science Professor David Schultz said it wouldn’t have to succeed in court as long as any litigation extended beyond election day.
Even though he questions whether the DFL will win control of the Senate this election, it might. And Walz could maintain the state of emergency without giving the GOP Senate additional opportunities to dismantle his administration commissioner by commissioner.
“I could see him doing that,” Schultz said.
The cost would be to lose any chance to pass a bonding bill or other relatively minor spending and tax bills. But those are increasingly unlikely to pass this year anyway.
Schultz said he thinks the legal reasoning behind any claim that Walz can keep lawmakers out of session while maintaining emergency authority is faulty. “Emergency statute and powers are exceptions to normal legislation and procedures,” he said. “This reverses that and says the Legislature has given the governor any power he wants. This ought to violate separation of powers clause as well as delegation and legislative powers on how a bill becomes a law.”
But that doesn’t mean it couldn’t prevail in the current court.
A more blunt move could be for Walz to let his emergency declaration expire and then impose a new declaration a minute later, along with the 70-plus executive orders he has signed since mid-March. That would reset the five-day clock on a required approval by the state Executive Council, which is made up of the five statewide elected officers, all of whom are DFLers, and the 30-day clock on when a session would be needed. And he could potentially do it multiple times.
Schultz said that unlike the U.S. Constitution, which tends to limit governmental power, the Minnesota Constitution enables government authority. With a part-time Legislature, it made sense to let appointees serve until the lawmakers returned to St. Paul for their relatively brief sessions. But it does challenge the concept of separation of powers if part of the legislative branch can maintain a threat over the executive branch throughout a governor’s term, simply by not confirming appointees.
“It does strike me as an excessive amount of leverage,” he said.