Cooper wants Senate’s Cabinet reviews delayed until judge reviews lawsuit challenging its authority

With the state Senate’s first Cabinet confirmation hearing just days away, Gov. Roy Cooper on Friday said the series of meetings should be delayed until a three-judge panel can review his lawsuit challenging the process.

Speaking to reporters after an event in Raleigh, the governor said his Cabinet secretaries will meet with legislators informally and will attend routine committee meetings as necessary. But he said his attorneys think they will succeed in blocking the expanded role the Senate has taken on following the defeat of Republican Gov. Pat McCrory.

Cooper did not say whether he would refuse to allow his Cabinet officials to participate in the Senate’s nomination hearings without a court ruling. The Senate has the authority to compel witnesses to appear before its committees. State law also requires department officials to provide any information requested by legislative committees.

“We don’t want to have a confrontation about this,” Cooper told reporters. “We would very much like to work it out, make sure that they know these secretaries. I’m very confident in the talent and the ability of each and every one, and we will work closely with the General Assembly to avoid conflict.”

The Democratic governor said he had met with Republican Senate leadership on Friday morning without resolving the issue.

The co-chairman of the new Senate Select Committee on Nominations, Sen. Bill Rabon of Southport, said earlier this week that he doesn’t expect the Republican-controlled committee to be hostile to Cooper’s appointments. Each will be judged on their ability to perform their jobs and avoid potential conflicts of interest and whether they are willing to follow the law, he said.

Amy Auth, Senate leader Phil Berger’s deputy chief of staff, has said Cabinet appointees will have nothing to worry about, as long as they have “nothing to hide.”

On Friday, Auth said: “The law is currently in place and the Cooper administration doesn’t get to arbitrarily pick and choose which laws to follow just because they don’t like them.”

In a special session last month, the legislature and McCrory enacted into law a series of provisions that stripped the incoming governor of some of his authority, including imposing a requirement that the Senate sign off on his Cabinet picks, which has not been the practice in recent history, if ever.

The state Constitution says, “The Governor shall nominate and by and with the advice and consent of a majority of the Senators appoint all officers whose appointments are not otherwise provided for.”

Cooper cites a state Supreme Court ruling from last year in a court dispute between McCrory and Berger over executive branch authority. Cooper’s argument is that ruling makes it clear that the advice and consent provision only applies to “constitutional officers” — elected Council of State officials such as the secretary of state, treasurer and auditor — and not “statutory officers,” who are non-elected heads of the principal departments of the executive branch, including Cabinet secretaries. Voters elect members of the Council of State, but the governor fills vacancies.

In addition, Cooper said Friday, there are other appointments that have to be confirmed by the Senate and the law says the governor has until May 15 to submit those nominations.

“So, we think there are a number of reasons why the hearings should be delayed,” Cooper said. “We should let the courts decide it first.”

The Senate wants to hold the first hearing on Wednesday, for former state Rep. Larry Hall of Durham, who has been appointed to head the Department of Military and Veterans Affairs. The remainder of nominations would wrap up over the next two months. Cooper has appointed eight of his 10 Cabinet secretaries.

This story was originally published February 3, 2017 at 6:14 PM with the headline "Cooper wants Senate’s Cabinet reviews delayed until judge reviews lawsuit challenging its authority."