Legislature(2009 - 2010)BELTZ 105 (TSBldg)

04/14/2010 09:00 AM STATE AFFAIRS


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09:06:37 AM Start
09:07:55 AM HB348
09:38:40 AM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+= HB 225 STATE PROCUREMENT CODE TELECONFERENCED
Scheduled But Not Heard
+ HB 348 PERSONNEL BOARD MEMBERSHIP TELECONFERENCED
Moved CSHB 348(JUD) Out of Committee
+ Bills Previously Heard/Scheduled TELECONFERENCED
               HB 348-PERSONNEL BOARD MEMBERSHIP                                                                            
                                                                                                                                
9:07:55 AM                                                                                                                    
SENATOR MENARD announced consideration  of HB 348. [CSHB 348(JUD)                                                               
was before the committee.]                                                                                                      
                                                                                                                                
9:08:11 AM                                                                                                                    
SENATOR MENARD called a brief at  ease pending the arrival of the                                                               
bill sponsor.                                                                                                                   
                                                                                                                                
9:09:18 AM                                                                                                                    
SENATOR MENARD called the meeting back to order.                                                                                
                                                                                                                                
9:09:28 AM                                                                                                                    
MICHAEL  SICA, Staff  for Representative  Bob Lynn,  said HB  348                                                               
attempts to  help a board  that has  become of great  interest to                                                               
the  public  in recent  years.  The  personnel board  deals  with                                                               
complaints against the governor,  the lieutenant governor and the                                                               
attorney  general (AG).  The board  has other  duties, but  their                                                               
powers and duties on the  Alaska Executive Branch Ethics Act have                                                               
become very  public. In recent  years, the board has  become more                                                               
involved  with  public  policy,   dealing  with  issues  such  as                                                               
balancing the  high cost of  defending against  ethics complaints                                                               
with confidentiality or  having the AG look  into recovering fees                                                               
from  people who  file frivolous  complaints. Board  members work                                                               
hard  and do  not  get  paid. Though  they  are  a public  entity                                                               
involved in issues of interest,  the sponsor feels they deal with                                                               
a lot of heat that is not deserved.                                                                                             
                                                                                                                                
The  sponsor of  HB 348  feels  some sting  can be  taken out  of                                                               
accusations by showing  that the board is not a  rubber stamp for                                                               
the governor  who appoints them.  Currently, the  personnel board                                                               
is described as an independent  agency appointed by the governor.                                                               
HB 348 proposes  that the Chief Justice nominate  lists of people                                                               
for the  personnel board while  allowing the governor  to request                                                               
additional  lists. The  process of  the Chief  Justice forwarding                                                               
names,  which  the  governor  still   picks  from,  respects  the                                                               
governor's  power  and  insulates   the  board  by  showing  some                                                               
impartiality.                                                                                                                   
                                                                                                                                
He noted the fiscal note is  zero and summarized the intent of HB
348: To achieve broad representation  and decrease the likelihood                                                               
of one governor appointing all  members by increasing the members                                                               
from three to  five; to have the governor  make appointments from                                                               
a  list  provided  by  the chief  justice,  thereby  creating  an                                                               
important  layer  of  insulation;  and  to  ensure  diversity  of                                                               
opinion by  having at least  one member from the  political party                                                               
of  the  candidate  for  governor  with  the  highest  number  of                                                               
registered  voters   and  with  the  second   highest  number  of                                                               
registered voters. Also,  a conflict section, similar  to that in                                                               
Alaska Public Offices Commission  (APOC) and the Select Committee                                                               
on Legislative Ethics, creates an important standard.                                                                           
                                                                                                                                
9:13:24 AM                                                                                                                    
SENATOR MEYER  said the legislative  ethics board is  selected by                                                               
the chief justice.                                                                                                              
                                                                                                                                
MR. SICA confirmed this.                                                                                                        
                                                                                                                                
SENATOR  MEYER asked  why  the same  thing is  not  done for  the                                                               
personnel board.                                                                                                                
                                                                                                                                
MR. SICA  said the  legislature decided to  put the  ethics board                                                               
together this  way. The sponsor  wanted to allow the  governor to                                                               
maintain more power  to set the qualifications  for the personnel                                                               
board.  To  have  the  legislature  set  the  qualifications  for                                                               
another  branch through  a  third  branch could  give  rise to  a                                                               
separation-of-powers issue.                                                                                                     
                                                                                                                                
9:14:39 AM                                                                                                                    
SENATOR MEYER asked  if changes to the personnel  board should be                                                               
coming from the governor's office.                                                                                              
                                                                                                                                
MR. SICA said that argument could  be made. But in the absence of                                                               
action  by the  governor's office,  we all  work together  in the                                                               
checks and balances of government.                                                                                              
                                                                                                                                
SENATOR MEYER said  if the legislature can only go  so far due to                                                               
the separation of the three  branches, then perhaps the executive                                                               
branch should  come up  with their own  changes. He  is concerned                                                               
that  the governor  can indefinitely  reject the  chief justice's                                                               
lists.  While he  thinks involving  the chief  justice is  a good                                                               
idea, he suggested the chief justice select the personnel board.                                                                
                                                                                                                                
MR. SICA  said Representative Lynn  would likely be open  to that                                                               
idea.                                                                                                                           
                                                                                                                                
SENATOR  MEYER  asked  how the  executive  branch  or  governor's                                                               
office feels about HB 348.                                                                                                      
                                                                                                                                
MR. SICA  said the Department of  Law (DOL) has been  very polite                                                               
and will speak for itself.                                                                                                      
                                                                                                                                
9:17:08 AM                                                                                                                    
SENATOR  MENARD said  she believes  not  having good  lists is  a                                                               
problem with  all boards and  commissions. The governor  is often                                                               
put in position  of nominating people for  boards and commissions                                                               
when no one  has come forward and offered. She  supports adding a                                                               
list for this board.                                                                                                            
                                                                                                                                
9:18:03 AM                                                                                                                    
MR. SICA pointed  out that a lot of other  boards and commissions                                                               
provide nominating  lists for the  governor. He noted  that APOC,                                                               
under  the  governor,  has  five  members,  four  of  which  come                                                               
directly  from the  central committee  of  political parties.  He                                                               
felt that brings up a separation of powers issue.                                                                               
                                                                                                                                
SENATOR MENARD added that APOC is  one major reason why people do                                                               
not  put their  names forward  for boards  and commissions.  Many                                                               
great leaders  have been successful  and must  expose everything,                                                               
creating a  privacy issue  and a  challenge to  getting qualified                                                               
people on boards.                                                                                                               
                                                                                                                                
SENATOR MEYER conceded  that the legislature is  partly to blame.                                                               
People  on boards  and commissions  are volunteering  their time.                                                               
Their  resume, pros  and  cons, are  discussed  and not  everyone                                                               
wants everything public.                                                                                                        
                                                                                                                                
9:20:41 AM                                                                                                                    
SENATOR FRENCH joined the meeting.                                                                                              
                                                                                                                                
9:21:00 AM                                                                                                                    
DOUG  WOOLIVER,  Administrative  Attorney, Alaska  Court  System,                                                               
said the court does not  support or oppose legislation. The court                                                               
is generally  uncomfortable being  in the position  of forwarding                                                               
names although  there is  a history  of the  court doing  so. The                                                               
court has  forwarded names for  legislative confirmation  for the                                                               
legislative ethics  committee since 1986. That  system has worked                                                               
well. The  chief justice also  makes the fifth selection  for the                                                               
redistricting  board which  can  be politically  awkward. HB  348                                                               
proposes a similar role for the  executive branch and this is not                                                               
a  role the  court cherishes.  The personnel  board is  different                                                               
because it has a limited  oversight role for the entire personnel                                                               
and executive branch, giving final  approval to the personnel act                                                               
or  rules  for  the  entire  executive  branch.  They  make  some                                                               
decisions about  who is  in the  classified and  exempt services.                                                               
Even  an indirect  and minor  role  in the  personnel of  another                                                               
branch is  something the  court is  uncomfortable with.  He would                                                               
like it on the record that  this is not something the court likes                                                               
to do.                                                                                                                          
                                                                                                                                
9:23:31 AM                                                                                                                    
SENATOR MEYER clarified  that the chief justice  brings forward a                                                               
list  of  names   for  the  legislative  ethics   board  and  the                                                               
legislature confirms them.                                                                                                      
                                                                                                                                
MR. WOOLIVER said that is correct.                                                                                              
                                                                                                                                
SENATOR MEYER asked if this  process has been controversial or if                                                               
the legislature has ever rejected the judge's selection.                                                                        
                                                                                                                                
MR. WOOLIVER replied that the  legislature initially rejected all                                                               
the applicants on the first set  of names that came up, which was                                                               
in 1993 or  1994. Some political maneuvering was  going on. Since                                                               
that  time all  the names  have been  confirmed and  he does  not                                                               
believe there has been controversy.                                                                                             
                                                                                                                                
9:24:42 AM                                                                                                                    
SENATOR MEYER said  he has never seen the  legislature reject the                                                               
chief justice's recommendation in the  last 12 years. He asked if                                                               
Mr. Wooliver  is concerned that  HB 348 could possibly  result in                                                               
the governor  indefinitely asking  for a new  list of  names, all                                                               
outside of the legislature.                                                                                                     
                                                                                                                                
MR. WOOLIVER said  it is possible that the  governor could reject                                                               
names repeatedly.  He assumed  that is  unlikely and  this system                                                               
for  the personnel  board  would  work like  the  system for  the                                                               
legislative ethics board.                                                                                                       
                                                                                                                                
CHAIR  MENARD commented  that it  depends on  how reasonable  the                                                               
governor is.                                                                                                                    
                                                                                                                                
9:26:04 AM                                                                                                                    
MIKE  FORD, Attorney,  Civil Division,  Department of  Law (DOL),                                                               
said the department would like  to raise two concerns. First, the                                                               
Article 3,  Section 26,  of the  constitution provides  a process                                                               
whereby  the  governor  appoints   members  and  the  legislature                                                               
confirms  them. HB  348 tries  to add  a third  step whereby  the                                                               
chief justice  selects people.  The cleanest  way to  create this                                                               
new process  is to amend the  constitution. Statutory restriction                                                               
on  the   governor's  power  raises  the   separation  of  powers                                                               
question.  The last  effort  to  change the  process  was in  the                                                               
1970's.  The legislature  attempted  to  expand the  confirmation                                                               
process  to  include  deputy   commissioners  and  some  division                                                               
directors. The court  struck down that statute and  found that it                                                               
was beyond  the power  of the legislature  to amend  the process.                                                               
Here, the same  problem exists: the legislature  is attempting to                                                               
restrict  the governor's  power of  appointment by  requiring the                                                               
chief justice to provide a list.                                                                                                
                                                                                                                                
The second  issue is about the  actual effect on the  process. He                                                               
said, "the  target is misplaced here".  Ethics complaints against                                                               
the governor  over the last few  years have not been  resolved by                                                               
the personnel  board. If HB  348 became law, expanding  the board                                                               
and  adding the  chief  justice to  the  process, an  independent                                                               
council would still  rule on these complaints,  not the personnel                                                               
board. The process would be the same in spite of these changes.                                                                 
                                                                                                                                
SENATOR  MENARD  asked  Mr.  Ford  if he  had  an  opinion  about                                                               
increasing the board from three to five members.                                                                                
                                                                                                                                
9:29:12 AM                                                                                                                    
MR. FORD replied that is not a legal concern.                                                                                   
                                                                                                                                
SENATOR MEYER  asked if DOL's  legal concerns would  be satisfied                                                               
if this legislation were to come from the governor.                                                                             
                                                                                                                                
MR. FORD  answered no.  He would  not propose  legislation unless                                                               
there was substantial legal standing for it.                                                                                    
                                                                                                                                
9:30:35 AM                                                                                                                    
SENATOR MEYER  said he believes  this issue is coming  up because                                                               
of  the numerous  frivolous ethics  charges  brought forward.  If                                                               
concerns weren't made public until  after the ethics board ruled,                                                               
perhaps  so many  ethic  charges would  not  be brought  forward.                                                               
However, he understands, and would like  to get it on the record,                                                               
that ethics concerns have to be made public.                                                                                    
                                                                                                                                
MR.   FORD  said   he  thinks   Senator  Meyer   is  asking   how                                                               
confidentiality   of   an   ethics   complaint   is   maintained.                                                               
Confidentiality must  be balanced with  a person's right  of free                                                               
speech.  For example,  the legislative  process  requires that  a                                                               
complaint   be   dismissed   if  confidentiality   is   breeched.                                                               
Incorporating that  approach into  the executive branch  has been                                                               
suggested but there  are serious concerns about that  also. It is                                                               
unfortunate  when a  complaint becomes  public before  it should.                                                               
The law  clearly says that  they are confidential and  should not                                                               
be disclosed; there is not a solution for that problem.                                                                         
                                                                                                                                
SENATOR MEYER  said legislative and  executive branches  are very                                                               
different.  Everyone in  the legislative  branch is  elected; the                                                               
temptation to bring forth an  ethics charge for political reasons                                                               
is a greater  than bringing one against someone  in the executive                                                               
branch. The  media and  public attention  to ethics  charges that                                                               
ended up being  unsubstantial has brought a lot of  this to where                                                               
we are today.                                                                                                                   
                                                                                                                                
9:33:08 AM                                                                                                                    
MR. FORD reiterated that if HB  348 becomes law, the process will                                                               
not  change.  The independent  council  will  weigh in  first  to                                                               
determine  if the  validity  of a  complaint.  The changes  being                                                               
contemplated  with HB  348  will  not make  a  difference to  the                                                               
process. Whether  it changes  the view of  the public,  he cannot                                                               
say.                                                                                                                            
                                                                                                                                
9:33:48 AM                                                                                                                    
NICKI NEAL,  Director, Personnel and Labor  Relations, Department                                                               
of  Administration  and,  Secretary, Personnel  Board,  said  the                                                               
personnel board  is neutral. A  zero fiscal note was  prepared in                                                               
spite  of  the  increase  in board  members.  Board  members  are                                                               
volunteers and typically meet quarterly  over the lunch hour, via                                                               
teleconference.                                                                                                                 
                                                                                                                                
9:35:20 AM                                                                                                                    
SENATOR MEYER asked if board members serve four years.                                                                          
                                                                                                                                
MS. NEAL answered that she believes they serve six years.                                                                       
                                                                                                                                
SENATOR  MEYER asked  if board  members can  serve more  than one                                                               
term.                                                                                                                           
                                                                                                                                
MS. NEAL replied yes. She is not aware of a term limit.                                                                         
                                                                                                                                
SENATOR MEYER commented that turnover on the board is good.                                                                     
                                                                                                                                
9:36:38 AM                                                                                                                    
SENATOR  FRENCH noted  that  the next  committee  of referral  is                                                               
Judiciary  and  he  would be  interested  in  Alpheus  Bullard's,                                                               
[Legislative Legal], views on the  separation of powers arguments                                                               
raised  by   the  DOL  this   morning  because  they   are  worth                                                               
considering.                                                                                                                    
                                                                                                                                
CHAIR MENARD concurred.                                                                                                         
                                                                                                                                
9:37:03 AM                                                                                                                    
SENATOR MENARD closed public testimony.                                                                                         
                                                                                                                                
9:37:14 AM                                                                                                                    
SENATOR  MEYER commented  that there  are  major legal  concerns,                                                               
such as the separation of  powers. The State Affairs committee is                                                               
not the place to address those,  so he agrees with passing HB 348                                                               
on to judiciary where legal issues can be scrutinized.                                                                          
                                                                                                                                
SENATOR MEYER moved  to report CS for HB 348  from committee with                                                               
individual recommendations  and accompanying fiscal  notes. There                                                               
being no  objection, CSHB  348(JUD) moved  from the  Senate State                                                               
Affairs Standing Committee.                                                                                                     

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