Legislature(2009 - 2010)BUTROVICH 205

04/15/2010 08:30 AM JUDICIARY

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Scheduled But Not Heard
Moved SCS CSHB 324(JUD) Out of Committee
Moved CSHB 348(JUD) Out of Committee
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
               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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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.                                                                    

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