It was the No. 1 issue for all those special sessions the Minnesota Legislature didn’t end up convening in the second half of 2021: the threat by Republicans who control the state Senate to fire more of Gov. Tim Walz’s senior appointees.
Like many states, Minnesota allows political appointees to serve before they are confirmed by the state Senate, and many of those appointees serve their entire time in their posts without getting an up or down vote.
But that also means the appointees can be brought up for a vote at any time, leaving them subject to ongoing pressure from lawmakers. The catch: only while in session can the Senate exercise its constitutional authority to confirm — or not confirm — a governor’s top appointees.
And so Walz used the one defense available to him at the time: keep the Senate out of St. Paul. Despite talking (a lot) about special sessions — and despite there being no shortage of issues that could have benefited from a special session — the governor didn’t summon lawmakers back to St. Paul because he didn’t trust the Senate to leave his commissioners alone.
But now that the 2022 regular session has convened, every Walz senior appointee not yet confirmed is once again vulnerable; they can be removed from their jobs with a simple majority vote, at least until the Legislature’s constitutionally mandated adjournment date of May 23.
Three in particular are under pressure: Health Commissioner Jan Malcolm, Corrections Commissioner Paul Schnell and Housing Commissioner Jennifer Ho.
“The Senate takes our responsibility to evaluate the performance of commissioners very, very seriously,” said Senate Majority Leader Jeremy Miller, R-Winona, during a forum last week with reporters who cover the Capitol. “All commissioners will continue to be evaluated and we’ll do that through the committee process.”
Walz also took part in the session with legislative leaders, which was put on by the Forum News Service, and his response to Miller was tempered by the fact that previous confirmation battles were with Miller’s predecessor, Sen. Paul Gazelka, R-East Gull Lake.
“The senator is right. It is their responsibility,” the DFL governor said. “I would make the case that it was their responsibility three years ago and that these commissioners should be judged on the value of their work and what they’ve done.”
He then returned to his belief that two previous commissioner firings, and one commissioner resignation ahead of a firing, were ideological and aimed not at the commissioners but at him.
“I respect the Senate’s right to do this,” Walz said. “It is how it should be done. But if it’s based on a disagreement with me, rather than the performance of these public servants…”
Two appointees were removed in 2020 — Labor and Industries Commissioner Nancy Leppink and Commerce Commissioner Steve Kelley. One more resigned in 2021, Pollution Control Agency Commissioner Laura Bishop, with the knowledge that if she didn’t, she too would be not confirmed.
While GOP senators alleged all three were not responsive to their questions and not communicative to concerns from constituents, all three presided over programs and policies that were opposed by many in the GOP caucus.
For Leppink, it was a series of actions ranging 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. Some senators were also upset with how she enforced a requirement that wedding barns have fire sprinklers.
For Kelley, it was his decision to advance a legal appeal challenging the need for oil from the Line 3 project, which is replacing an aging pipeline currently operating at half-capacity. And for Bishop, it was for rules encouraging the sale of low-emission cars.
Walz has also said it is hard to separate these actions from GOP unhappiness with his decision to impose a series of emergency powers declaration as part of the state’s effort to address the COVID-19 pandemic. While those powers have been rescinded since August, they were not only the reason for convening monthly special sessions in the second-half of 2020, they were the main point of contention.
Keeping lawmakers out of special session in 2021 was meant primarily to keep the Senate from removing Malcolm, who was the target of Republican anger over the state’s response to COVID-19, including an app that some said was akin to a “vaccine passport.” But at least one well-placed senator linked the threat to Malcolm’s job with general unhappiness with Walz’s COVID actions.
“It seems the only language the governor understands is the removal of another commissioner,” said Sen. Jim Abeler at a summertime rally against mask and vaccine requirements. Abeler is an Anoka Republican who chairs the Senate Human Services Reform Finance and Policy Committee.
At the forum last week, Miller asserted that only an individual commissioner’s performance would be considered by the Senate. “The decisions made and that are being made by the Senate have nothing to do with the governor’s decisions on how he reacted to COVID,” he said. “I’ll respectfully disagree with him. There were no ideological differences. That’s not what we do.
“We do feel it’s important that commissioners interact and communicate with legislators. We may not always agree, and that’s okay. But we at least have to have the conversation.”
Walz reminded Miller of Abeler’s comments about using Malcolm to get his attention. “I’m not saying you, but there have been public statements that these people are being removed because they disagree with my politics or are ideological,” Walz said.
And he repeated his argument that removing Malcolm in the midst of a pandemic would harm the state. Removing “the person who is leading at the point and who is by all outside measures doing incredible work … wouldn’t make sense just because you disagree with how I handled COVID.”
Malcolm is on three commissioners who have been criticized by GOP senators, though pressure seems to have eased as state-ordered pandemic restrictions have gone away. The one remaining Walz order that continues to raise objections is the vaccine-or-test mandate for state employees.
But last week, Senate Judiciary Committee Chair Warren Limmer, R-Maple Grove, also expressed displeasure with Corrections Commissioner Paul Schnell. Limmer has a bill to require Senate confirmation of members of the Sentencing Guidelines Commission, but Schnell, a member of the commission, is already subject to confirmation.
When asked about Schnell’s future, Limmer said that any review of his performance would be broader than his service on the commission, but also said, “the role that Commissioner Schnell had on the Sentencing Guidelines Commission in recommending the five-year probation cap is concerning,” referring to a 2020 vote by the commission to limit probation sentences for most offenders in Minnesota to five years.
Also likely to face Senate scrutiny is Housing Commissioner Jennifer Ho, who was among a handful to face a hearing last June when the Senate stayed in session after the budget was adopted and the House had adjourned.
Ho has been under scrutiny over the rollout of the state’s federally funded rental assistance program, called RentHelpMN. Giving out hundreds of millions of dollars to financially eligible renters was not something the small agency had done before, and it had to commission contractors to hire staff, vet applicants and distribute money to landlords. Minnesota was one of many states that had difficulties in administering the funds.
But Sen. Rich Draheim, the Madison Lake Republican who chairs the Senate Housing Finance and Policy Committee, has complained about a shortage of information from Ho and repeated that last month when the agency called a sudden end to applications.
“From a shaky rollout to this abrupt closure, Commissioner Ho has mismanaged RentHelpMN every step of the way,” Draheim said. “A month ago, we could see the program running out of money and the need to have a plan in place that gave adequate notice to Minnesotans. And now, Commissioner Ho has manufactured a crisis that could have been avoided.”
Ho has said the state has requested additional funds from the federal government for the program but was denied. She decided the program should stop taking applications to avoid having tenants apply and not receive help.
Historically, very few commissioners have been formally voted down. Records compiled by the Legislative Reference Library show that just seven commissioners have been rejected by the Senate in the last two decades. Three others resigned in the face of a likely vote to not confirm.
Last week, a bill was introduced that would give the Senate 60 legislative days to act; if no vote was taken, appointees would be considered confirmed.
Walker Orenstein also contributed to this report.