Legislature(2009 - 2010)BUTROVICH 205
04/15/2010 08:30 AM JUDICIARY
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* first hearing in first committee of referral
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HB 348-PERSONNEL BOARD MEMBERSHIP 8:53:19 AM CHAIR FRENCH announced the consideration of HB 348. [CSHB 348(JUD) was before the committee.] REPRESENTATIVE BOB LYNN, sponsor of HB 348, said this bill changes the way the governor appoints people to the three-member state personnel board and addresses the perception that the board is a creature of the governor. At present the governor can appoint any Alaskan to the board who is not a state employee. This provides little diversity of opinion and could result in a tie vote on sensitive issues if one member is absent. HB 348 increases the size of the board to five members each of which is a member of the two largest political parties in the last gubernatorial election. Under the bill the governor would make an appointment from a list of three names provided by the chief justice of the supreme court. The governor could request additional names if he or she so desired. The legislature would confirm the appointee. He recapped that the bill basically does three things; it increases diversity, lessens the chance of tie vote, and protects the governor from improper perceptions. 8:56:50 AM MICHAEL SICA, Staff to Representative Lynn, said HB 348 makes the state personnel board a more deliberative body and insulates the governor from any improper perception. The bill improves rather than changes the current process. 8:58:13 AM DOUGLAS WOOLIVER, Administrative Attorney, Alaska Court System, said the court hasn't taken a position on HB 348, but has reservations about this type of bill. He acknowledged that there is precedent for the court to be involved in a similar process. The chief justice forwards names for the legislative ethics committee to the legislature for confirmation. The chief justice also makes the fifth appointment to the redistricting board. Although the process has worked fairly well, the court prefers to operate completely outside the political process. MR. WOOLIVER highlighted that the court has further concern because the personnel board has an oversight role for personnel in the executive branch. Even a minor role in the personnel management of another branch is something the court doesn't relish. The court would prefer to see fewer rather than more of these bills, he said. 9:00:11 AM MIKE FORD, Assistant Attorney General, Department of Law (DOL), said DOL has two primary concerns with HB 348. First is the legal concern with regard to separation of powers. He referenced the memo DOL provided on that point. Article III, Section 26 of the Alaska Constitution sets out a process for appointment and confirmation of board members. The bill adds an additional part to that process by requiring the chief justice to create a list of appointees. The governor would select from that list and the legislature would confirm the selection. DOL believes that process infringes on the governor's powers in a way that is not permissible under the state constitution. He cited Bradner v. Hammond, which relates to a prior effort by the legislature to expand the list of people who are subject to confirmation. The court struck that down and in the opinion indicated that appointment is an executive process and power. The discussion in that case indicated that confirmations are the outer limit of the legislature's power. 9:02:23 AM MR. FORD said DOL's second concern is that the bill wouldn't significantly change the current process. If there is an ethics complaint against the governor or lieutenant governor, the current process provides for the appointment of an independent body to review the complaint. That process would remain in place were HB 348 to become law. He suggested that the target of the bill might not be as tight as it should be. 9:03:01 AM WILLIAM MILKS, Attorney IV, Civil Division, Department of Law (DOL), introduced himself. CHAIR FRENCH said that after he heard the bill in a previous committee he asked legislative legal to review the separation of powers issue. He noted that Mr. Milks also sent a letter addressing the subject. The idea is that the governor has the constitutional power to appoint members of boards and commissions and any infringement is an issue of separation of powers. But as Mr. Milks' letter points out, there are many instances where the governor does not have the unfettered discretion to choose whom so ever he or she wants to serve on certain boards. He cited examples Mr. Milks' provided including nominations from certain village or city councils, appointments from organized labor submitted by unions, and appointments submitted by the Alaska Historical Society. With these examples it's difficult to see a large infringement on the governor's power to say that he or she must pick from a list offered by the chief justice of the supreme court. He asked Mr. Milks to comment. MR. MILKS pointed out that Article III, section 26, of the Alaska Constitution gives the governor that authority, and the Alaska Supreme Court interpreted it rather strictly in one case. He acknowledged that there are a number of statutes that require the governor to make appointments to boards and commissions from lists supplied by other persons. But the fact that this has occurred does not mean that Bradner has been overruled or that Article II, section 26 does not apply. DOL is trying to lay out that for the quasi-judicial personnel board, section 26 applies. CHAIR FRENCH asked Mr. Milks if he is suggesting that the statutes he cited in his letter are unconstitutional. MR. MILKS replied he is suggesting that the fact that the statutes exist does not mean that the Bradner case or Article III are not controlling. 9:06:33 AM SENATOR COGHILL said he'd like to know how the constitution was applied and under what test the supreme court made the decision. MR. MILKS explained that Bradner v. Hammond was a case dealing with legislation passed that made the appointment of deputy department heads and certain division directors subject to confirmation. The Alaska Supreme Court cited sections 25 and 26 of Article III and held that the appointment of executive branch officials is an executive function and not subject to confirmation. SENATOR COGHILL asked how bringing the third branch of government into the appointment process would be viewed under that criterion. CHAIR FRENCH said he believes that DOL would argue that the governor should have unfettered discretion in appointing members of boards and commissions and any restrictions to that would be an infringement on executive power. SENATOR COGHILL asked if the chief justice submits a list to the governor for appointments other than for the ethics committee. CHAIR FRENCH consulted Mr. Wooliver and related that the ethics committee is the only instance. The apportionment board is in the constitution. SENATOR COGHILL questioned whether the legislature has the legal authority to make a directive in that regard. CHAIR FRENCH replied that's the question the bill poses. MR. FORD said the court made the point in Bradner that the appointment process is purely an executive function. That function is delegated to the legislature for purposes of confirmation, but the court described that as the outer limit of legislative authority. Adding this new process would seem to be inconsistent with Bradner, he said. 9:11:17 AM SENATOR COGHILL observed that the legislature has the right to veto confirmations. CHAIR FRENCH said he shares the sponsor's concern that because this board is appointed by the governor to hear complaints against the executive branch, there can be a perception that it stands as a buffer rather than a watchdog. There are likely examples other than those cited by Mr. Milks where the legislature has told the governor that he or she has to appoint someone from a list. The executive branch has accepted that for decades, which undermines the separation of powers argument. SENATOR COGHILL said he understands the rationale, but he believes it would be unwise to think that politics won't get involved if the governor has to pick from a list of people from particular parties. CHAIR FRENCH called a point of order saying he isn't sure there is no political aspect to the appointments. SENATOR COGHILL pointed out the new language on page one. CHAIR FRENCH withdrew the point of order. SENATOR COGHILL noted the significant philosophical clashes during the recent joint session confirmations and opined that the legislature would thoroughly challenge appointments if it thought that a board was being stacked. There's an honest check on the governor stacking this board, and having to pick from political parties might bring about what the bill is trying to avoid, he said. 9:15:06 AM CHAIR FRENCH said the point is taken. MR. FORD said that just one of the issues that could result from adding a third step to the process is that the governor could repeatedly reject the names on the list. CHAIR FRENCH asked the sponsor if he would like to respond to any of the points that were made. REPRESENTATIVE LYNN explained that the object of bringing in more than one political party was to increase the diversity of opinion. Some of the current members are undeclared or nonpartisan, which brings in a broad range of political perspectives. He suggested that Mr. Bullard could provide prospective on the statements made by the Department of Law. MR. SICA said he understands Senator Coghill's concern about injecting politics into the process, but he wonders it might be just as much an issue to exclude someone based on political party. SENATOR COGHILL commented that the list describing fairness could become quite long. 9:19:25 AM SENATOR WIELECHOWSKI offered the view that this is about as close as you'll get to removing politics from the process. At ease from 9:20 a.m. to 9:24 a.m. CHAIR FRENCH moved Amendment 1, labeled 26-LS1360\S.3, and objected for discussion purposes. Amendment 1 OFFERED IN THE SENATE BY SENATOR FRENCH TO: CSHB 348(JUD) Page 1, line 6: Delete "selected" Insert "submitted" Page 1, line 8, following "nominations.": Insert "If the chief justice declines to submit additional nominees, the governor shall appoint a nominee from a list of nominees previously submitted by the chief justice for the vacancy." Page 1, line 12: Delete "at which a governor was elected" 9:24:27 AM CHAIR FRENCH asked Mr. Bullard if he believes that this amendment may make the separation of powers issue more rather than less pronounced. ALPHEUS BULLARD, Attorney, Legislative Legal Services, Legislative Affairs Agency, noted that the committee discussion has focused more on the executive's appointment authority and the law as determined by the Bradner decision. However, it isn't in doubt that the legislature can usually prescribe reasonable qualifications for members of boards, commissions, and state authorities. Under the terms of HB 348, the governor would be required to appoint from a list, but that would be subject to his or her right to request additional names, putting this more as a qualification. At the point that the legislature requires the governor to appoint from one or two lists, it has exacerbated existing separation of powers concerns in determining who will be appointed to the board. CHAIR FRENCH asked if the answer is yes; the amendment would make the separation of powers issue more rather than less pronounced. MR. BULLARD answered yes. CHAIR FRENCH withdrew Amendment 1. He referenced the footnote on page 2 in Mr. Bullard's memo that noted that there are several state boards and commissions that are currently chosen by the governor from lists submitted by other persons. Mr. Milks made the same point in his letter, which reaffirms the current practice. He further noted that the first full paragraph on the second page of Mr. Bullard's memo highlights that between 1981 and 1988 at least three attorneys general opinions or letters of advice have accepted that "the legislature may prescribe reasonable qualifications for gubernatorial appointments to boards or commissions." He opined that the sponsor has done a good job in trying to increase public confidence in this board. CHAIR FRENCH found no further questions, comments, or testimony and closed public testimony. Describing the bill as a fair balance, he asked for a motion. SENATOR WIELECHOWSKI moved to report CS for HB 348 from committee with individual recommendations and attached fiscal note(s). 9:29:00 AM SENATOR COGHILL objected to state that he appreciates the reason that the bill was introduced, but he doesn't necessarily agree that inserting the court in the process and placing a mandate on the governor will actually be helpful. The sponsor statement convinced him that this is the right thing to do, but the legal backup raised more questions than answers. Until he is convinced otherwise, he will be a "do not pass." He removed his objection to moving the bill from committee. CHAIR FRENCH announced that without further objection, CSHB 348(JUD) moved from the Senate Judiciary Standing Committee.