Minnesota Legislature Sets a Deadline for Future Commissioner Appointments
Three paragraphs in a 300-page omnibus bill has drastically changed the power dynamic between governors and the state Senate.
By putting a deadline on when the Senate must confirm a governor’s senior appointees, a Senate controlled by a different party than a governor can no longer hold up confirmations as a threat. If the Senate waits until the end of the session in which appointments are made, the person is deemed automatically confirmed.
“It’s fair, regardless of who the governor is, which party he belongs to,” said Rep. Jerry Newton, DFL-Coon Rapids, who was the sponsor of the bill that ended up in House File 1830, the omnibus state government bill that passed out of both the House and Senate in recent days. “It’s only fair that the people he appoints are confirmed in a timely manner.” The agencies also need stability in knowing who will be the commissioner, he said.
The state constitution gives the powers of “advice and consent” to the Senate but lets the details of confirmation be decided by statute. While Newton is a House member now, he served in the Senate for six years starting in 2017.
Since 1935, just 17 top appointees of Minnesota governors have been rejected by the Senate, though others have quit in the face of being not confirmed. But the pressure increased in Gov. Tim Walz’s first term when two of the DFL governor’s commissioners were removed in 2020 and a third resigned under pressure in 2021. Others were threatened with removal, including during an unusual session in July of 2021 when the Senate remained in special session after the House had adjourned.
Some of the conflicts came during the monthly sessions that occurred during the COVID-19 state of peacetime emergency. Under state law, governors can extend emergency declarations for 30 days but must give the Legislature an opportunity to rescind those powers.
Once the emergency declarations ended, Walz said he was reluctant to return lawmakers to special session for needed legislation for fear they would remove his appointees. He was especially concerned about Department of Health Commissioner Jan Malcolm who was leading the public health response to the pandemic.
When asked last summer why he wouldn’t call a special session to hold a vote on tax rebate checks, Walz said, “Because I want a health commissioner, because I’d like a public safety commissioner,” Walz said, referencing Malcolm and John Harrington.
Walz accused the GOP Senate of using the threat of non-confirmation to express displeasure with the policies of the agency or the governor. He said confirmation should be based on the qualifications of appointees, not political unhappiness with the governor throughout his or her term.
As the DFL took over the Senate this year, Majority Leader Kari Dziedzic said her caucus would speed up confirmations, and most appointees have had hearings and have cleared Senate committees. Eleven top appointees have been confirmed by the Senate with 14 awaiting a vote.
Walz on Sunday said he appreciated the change.
“It’s important to me because it’s a good-government bill,” Walz said.
“We saw great public servants be strung out, drug out, blackmailed and then eventually fired,” Walz said. “We’re not meant to have commissioners unconfirmed four years later. I just ask them to get on it, make your choice, if they’re not acceptable to you and you don’t confirm them, then we’ll make another choice.”
Rep. Jim Nash, R-Waconia, was the only Republicans on the state government omnibus conference committee. He said he spoke against the provision.
“I’m opposed to the idea that a lack of action could lead to the ability to be confirmed, quickly and easily,” he said. “It effectively neuters what the Senate has traditionally had for years, ever since statehood, the right to confirm. It takes it away.”
“It takes away a tool in the toolbox that both parties have used,” Nash said. He called it retribution for the GOP Senate’s battle with Walz. “I’m not saying the way it was utilized was always tremendous, but taking away a tool from the Senate I don’t think is a wise choice.”
Both parties have taken advantage of the previous law, in essence firing commissioners they don’t favor or at least threatening to. DFLers removed two appointees of GOP Gov. Tim Pawlenty — Education Commissioner Cheri Pierson Yecke in 2004 and Transportation Commissioner Carol Molnau in 2008.
While the Legislature altered language around commissioner confirmations, there is a glitch elsewhere in the state government omnibus bill that will need to be fixed next session, said House State Government Committee Chair Ginny Klevorn, DFL-Plymouth. The same bill changes the way the Legislature counts legislative days to comply with limits on the length of sessions contained in the state constitution.
Since a 1973 constitutional change, lawmakers can meet for 120 days over a two-year period. Legislative days are any day either house is called to order and those session days used in the odd-year sessions like the current session are deducted from 120. The even-year sessions are limited by how many days remain.
Either way, no regular session can convene beyond the first Monday after the third Sunday of May — May 22 this year.
But the omnibus bill changed the definition of “legislative day.” Under the bill, and starting with the 2025 session, a legislative day will be any day either house gives “any bill a third reading, adopts a rule of procedure or organization, elects a university regent, confirms a gubernatorial appointment, or votes to override a gubernatorial veto.”
Right now, a legislative day is more loosely defined, so the expected effect of the definition change is that legislative sessions can be longer than they are currently.
The Newton bill said commissioners were deemed confirmed if their appointments were not acted upon in 60 session days. That was meant to mean during the first session after a governor takes office because odd-year sessions use up around that many days under the current law.
But the change in counting means far fewer session days will be burned in the odd-year session than now, leaving some commissioners to have to wait for the following session to be sure they have a permanent job.
“We’ll work with the Senate and get the correct language,” Newton said.