Since 1935, just 17 top appointees of Minnesota governors have been rejected by the state Senate.
While most appointees serve without their confirmation ever coming up for a vote on the floor, the rare act of being rejected under the Constitution’s advice and consent section has happened twice already in the 2½ years of the Tim Walz administration and could happen again this week before the GOP-controlled Senate completes review of six appointees.
Senate Majority Leader Paul Gazelka said he doubted there would be more than one or two removed, and one of the likely targets — Minnesota Pollution Control Agency (MPCA) Commissioner Laura Bishop — resigned Tuesday. But even three removals of appointed commissioners under a single governor is a lot.
Minnesota follows a system that is not uncommon among the states but is different from presidential appointments. Once an announcement of an appointment is delivered to the state Senate, an appointee can take the job. Many serve entire terms without having their appointment acted upon.
Two appointees rejected last summer
If confirmed, an appointee is safe and serves as long as the governor wants. But the unconfirmed work under the threat that at any time the Senate can bring up their name and, in effect, fire them with a majority vote. That was more than a threat last summer when two Walz appointees were not confirmed. They are Nancy Leppink as head of the department of Labor and Industries and Steve Kelley, commissioner of the Department of Commerce.
As the surprise was sprung on Leppink and Walz, House Minority Leader Kurt Daudt tweeted: “Looks like the Senate is executing a prisoner today.” A top Walz aid expressed the frustration of the office by saying: “We’re fighting a pandemic and the Senate is playing ‘Battleship’ with our commissioners.”
Before Leppink, the most recent commissioners removed by the Senate 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.)
The potential for additional removals has hung over the Walz administration since, colored by the ongoing dispute between the governor and the Senate GOP majority over the monthly extensions of the peacetime state of emergency and the executive orders authorized by that declaration.
The peacetime emergency was ended by a bipartisan vote last week and Walz got the few powers that he said he needed to “button up” the COVID emergency in the taxes bill. But when it appeared detente had been reached between the Senate and the governor, Gazelka announced that the Senate would not follow the House into adjournment and would return to action this week. It was Friday when it became clear that the reason was further action on commissioners.
The largest target for GOP unhappiness might have been MPCA Commissioner Laura Bishop until she resigned the office Tuesday. In his announcement of the departure, Walz said he had been told by the Senate that she wouldn’t be confirmed and the resignation headed that off.
But there are others that had drawn criticism from Republican senators, and hearings were held Tuesday. They are Sarah Strommen for commissioner of the Minnesota Department of Natural Resources and Housing Finance Agency Commissioner Jennifer Ho. Strommen received warm words from Republicans and less so from Sen. Jen McEwen, DFL-Duluth, over issues such as the PolyMet copper-nickel mine proposal and Enbridge Energy’s Line 3 oil pipeline. Ho took questions about the slow rollout of pandemic rental assistance under the renthelpmn.org program but the Senate Housing Committee took no vote on her confirmation and made no recommendation.
Two others — Mark Phillips for commissioner of the Iron Range Resources and Rehabilitation Board and Aaron Vande Linde for director of the Minnesota Office of School Trust Lands — were confirmed Tuesday. A third, Dean Compart for appointment to the Board of Animal Health, received gentle treatment in committee and is expected to be confirmed. (Update: The Senate adjourned late Wednesday morning before any commissioner votes were taken. Gazelka said he thought Strommen and Compart would have been confirmed but that no vote would have been taken on Ho.)
The extension of the special session called in mid-June in order to finish the state budget by the July 1 start of the new budget period has angered Walz and DFLers. All of the appointees in question have been in office since the early months of the Walz governorship.
Gazelka, R-East Gull Lake, said Tuesday he didn’t want to disrupt an already contentious budget session with what is proving to be a tense overtime season over confirmations.
“We decided to wait on that, take a couple of days and take a handful of appointments,” he said. He said the six are a combination of those members thought “were doing a good job” and some that have issues. Even then, 21 top appointees remain unconfirmed and Gazelka said others could be brought up during a September special session meant to approve a plan to distribute $250 million to pandemic essential workers.
Little the governor could do
Could Walz have done anything to fight back? Likely not. Former President Donald Trump frequently appointed acting secretaries who were not subject to confirmation, but Minnesota law requires governors to fill vacancies within 45 legislative days of a vacancy, thus capping the time that acting commissioners can serve.
“… the governor must appoint a permanent commissioner, subject to the advice and consent of the Senate, within 45 legislative days,” wrote Senate analyst Andrew Erickson in a June 2020 memo. “In the period before a permanent commissioner is appointed, the governor may appoint a temporary or acting commissioner who is not subject to the advice and consent of the Senate.”
But the acting commissioner named to replace Bishop could serve until March of 2022 — 45 legislative days after the beginning of the next regular session next January.
A lack of legal recourse left Walz to complain about process and motivations.
“I expect the Senate to fulfill their constitutional duty to confirm any qualified candidate, as they should have done two years ago when our commissioners were first appointed,” the DFL governor said in a statement Friday. “Because Senate Republicans put this work off for two years and are choosing to conduct their work in overtime, I am calling on them to forgo the thousands of taxpayer dollars they take each day in per diem, and I expect that they will conduct their work expediently, professionally, and free of any political theater.”
What the Constitution says
The language in the state constitution is brief and without guidelines. “With the advice and consent of the senate (the governor) may appoint notaries public and other officers provided by law.” There is no timeline for confirmation, something that allows a Senate of another party than the governor to hold confirmation over the heads of appointees. Rather than judge the fitness of qualifications of appointees when they are first named, the process allows the Senate to assess the performance of commissioners and others.
Minnesota statute gives more guidance and the state Supreme Court has ruled that once an appointment letter is sent to the Senate a governor cannot rescind it.
Gazelka said Tuesday the assessment is meant to measure how appointees have worked with the Legislature and interest groups.
“In the end we have to decide, like an employer, is someone doing their job or not doing their job,” he said. Gazelka is considering a run for governor and was asked if he would be comfortable appointing commissioners who could be removed at any time during a term.
“It’s important for a governor to pick commissioners who can work on both sides of the aisle,” he said.
The DFL is in the minority in the Senate and has little means of stopping any motions to not confirm. Tuesday a motion to adjourn the special session before any votes could be taken lost on a party-line vote.
Senate Minority Leader Susan Kent, DFL-Woodbury, called the extra session days to take up appointments “beyond disappointing. We should take this process of advise and consent of the governor’s appointees very seriously and to it on a timely basis,” she said. “We’ve had two-and-a-half years for most of these appointees. They held onto them and from last summer and this year we’re now seeing why.” Kent said she thinks some Senate Republicans don’t like decisions made by commissioners rather than having objections to performance in office.
“I think it is interesting that we’re going to take up a couple of unobjectionable men today and then we’re going to take up a few women tomorrow that they seem to have an issue with,” Kent said.