Legislature(2009 - 2010)BUTROVICH 205
04/15/2010 08:30 AM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB348 | |
| HB381 | |
| HB324 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 36 | TELECONFERENCED | |
| += | HB 324 | TELECONFERENCED | |
| + | HB 348 | TELECONFERENCED | |
| + | HB 381 | TELECONFERENCED | |
| + | 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
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.
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