Legislature(1999 - 2000)
03/09/1999 09:02 AM Senate FIN
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
SENATE BILL NO. 33
"An Act relating to the Task Force on Privatization;
and providing for an effective date."
This bill was heard in committee once before.
Senator Al Adams returned to the separation of powers
debate from the previous meeting. He thanked the sponsor,
Senator Jerry Ward, for sharing the legal opinion written
by the Legal Services Division. He said the Legislature's
opinion differed from the Department of Law. The two
amendments he was offering would address those issues. One
amendment addressed the selection of members and would
assign selection to the Legislature rather than the
Governor as stated in the bill. The second amendment would
remove the Governor from the selection process and grant
per diem to the public members of the commission.
Senator Al Adams moved for adoption of Amendment #1, which
would remove members appointed by the Governor and the
local boundary commission position. Senator Sean Parnell
objected.
Senator Gary Wilken requested the question be divided to
separate the boundary commission appointment and the
appointments by Governor's office. Co-Chair John Torgerson
granted the request. Amendment #1A would change page 2 line
16 deleting "11" and inserting "8" and delete lines 17 and
18 delete two members selected by the governor. Amendment
position of the local boundary commission member. Amendment
public members of the commission.
Co-Chair John Torgerson repeated the Department of Law's
concerns with the separation of powers issue. The
Legislative Legal Services Division gave the opinion that
because the commission was advisory it was not subject to
separation of powers rules. Co-Chair John Torgerson said he
had no opinion on the amendment but had felt it was
important that the Administration be involved in the
selection of the commission members. Amendment #1A was
adopted without objection.
Senator Gary Wilken commented on Amendment #1B, saying he
felt that representation from the local boundary commission
was important. Senator Al Adams pointed out that the
Governor would also appoint the local boundary commission
position and because the other Governor appointed positions
had been removed, this should be removed also. He suggested
the local boundary commission could be consulted in an
advisory capacity. Amendment #1B failed by a vote of 2-4-3.
Senator Loren Leman and Senator Al Adams cast yea votes.
Senator Pete Kelly, Senator Lyda Green and Senator Randy
Phillips were absent.
Co-Chair John Torgerson asked Senator Al Adams if Amendment
Senator Al Adams affirmed and suggested technical
corrections could be made if necessary. Amendment #1C was
adopted without objection.
Co-Chair John Torgerson noted the conceptual change to page
2 line 16 reflecting that the commission would consist of
nine members.
Senator Al Adams spoke to Amendment #2 and moved for
adoption. He explained that with the removal of the
Governor's appointments to the commission, this amendment
would provide for the appointment of two members of the
public selected from a list of nominees submitted by labor
organizations that represent state employees. Senator Dave
Donley objected. Senator Al Adams believed it was important
for union members were associated with this effort. The
motion failed by a vote of 2-4-3. Senator Gary Wilken and
Senator Al Adams cast yea votes. Senator Pete Kelly,
Senator Lyda Green and Senator Randy Phillips were absent.
Senator Dave Donley moved to rescind action taken on
Amendment #1A. Senator Al Adams objected. Senator Dave
Donley spoke to motion saying he felt the Governor and
subsequently, labor unions, should be involved in this
process and were essential for the effort to be successful.
He didn't think there was a constitutional problem with
separation of powers. Senator Al Adams restated the legal
debate regarding separation of powers. He felt this would
set bad precedent. Agency personnel would participate in
the process and offer their resources, he argued. The
motion to rescind action on Amendment #1A passed by a vote
of 5-2-2. Senator Al Adams and Senator Gary Wilken cast the
nay votes. Senator Pete Kelly and Senator Randy Phillips
were absent.
Senator Dave Donley commented that this was a good way to
get statewide representation of both labor organization and
the Governor on the commission. They were necessary for
the success of the commission. He noted that because this
would be an advisory commission, it was exempt from the
separation of powers restrictions. He asked the sponsor if
this would be similar to the membership system in the bill
from the prior year. Mark Hodgins affirmed. Senator Dave
Donley noted that version passed both the Senate and the
House of Representatives and was then vetoed. Mark Hodgins
made the correction that SB 68 was from several years ago
and vetoed by governor. The privatization bill brought
forward last year did not pass from the House of
Representatives. Senator Dave Donley asked if the prior
bills had a similar membership system. Mark Hodgins said
they did. One of the three reasons given by the Governor
for vetoing SB 68 was the separation of powers issue.
Under this context, separation of powers was not a problem
according to Legal Services' Tam Cook's legal opinion.
Senator Al Adams requested a representative of the
Department of Law to speak on the separation of powers
matter. MARJORIE VANDOR, Assistant Attorney General,
Governmental Affairs Section, Civil Division, Department of
Law, said the department had looked at Tam Cook's analysis
and didn't debate her method of analyzing the Uniform
Rules. However, the different branches of government had
different views on the separation of powers when it came to
advisory committees. Whether a committee was advisory
would not change the underlying analysis according to the
Department of Law. The Administration did not oppose this
task force or its goals Marjorie Vandor stressed. The
problem was that it was a bill and had the force of law and
mandated the Governor to appoint, and who to appoint, which
raised separation of powers concerns. The Governor might
chose to comply and appoint members to the commission, she
said. However, historically this would be considered a
separation of powers problem and would be an infringement
on his normal, and strong, appointment powers. It was
important for the historical record for future Governors
that it not be consider a waiver of appointment on future
task forces, she stated.
Senator Sean Parnell wanted to know if, when the bill that
established the long range financial planning commission
passed, was there a requirement of who the governor would
appoint. Marjorie Vandor was not familiar with that bill,
but offered to check.
Co-Chair John Torgerson clarified that the Department of
Law's main difference of opinion with the Legal Services
Division was that if the commission was under Uniform Rules
there would not be the separation of powers issue. But
because it would be in statute the issue was a problem.
Marjorie Vandor responded that it was a constitutional
issue. She felt that Tam Cook's opinion seemed to be more
geared toward the Uniform Rules but did not address the
constitutional issue, which the department believed was the
major underlying problem. "Any time you mix committees,
its going to be raised", she surmised.
Co-Chair John Torgerson didn't understand the
Administration's objection. Was it because the Legislature
would direct the Governor to appoint a union representative
or was it because the Legislature was directing him to
appoint anybody, he asked. Marjorie Vandor said it was a
combination of both. She suggested that the reason the
commission was being created in the form of a bill was that
the Legislature was afraid the Governor would not appoint a
member. "We're not saying that the Governor may not want to
do it, that he doesn't believe this committee has a good
purpose," she said. She was concerned with the historical
precedence.
Co-Chair John Torgerson surmised that the Governor would
look awful silly vetoing this under those grounds.
Senator Gary Wilken said his support of Amendment #1A was
more practical than legal. He wanted to see this effort to
go through and to have a commission on privatization. Past
problems had been with the Governor's Office so it seemed
to him that removing the Governor from the equation would
remove the roadblock. This was focusing efforts on the
wrong thing, he stressed. If the Governor appointments were
removed, the Legislature could be relatively sure the bill
would become law and the process could begin.
Senator Dave Donley commented that one thing he liked about
the language was that the Governor, sitting statewide,
picked someone from organized labor to sit on the task
force. He thought that was an important element in the
process. If the Governor was removed, he suggested
allowing the labor organization to appoint their own
representative the same as with the Alaska State Chamber of
Commerce member. That would solve part of his concern. He
felt there needed to be some participation from the
Executive Branch.
Senator Gary Wilken agreed with Senator Dave Donley and
thought there should be a representative from organized
labor on the task force. However that was a different
issue than involvement from the governor's office. Senator
Dave Donley said the reason he brought it up was because
the amendment would remove the provision to provide for the
labor representation. Senator Gary Wilken pointed out
another amendment before the committee that would add two
members of organized labor and said that could be taken up
with the Governor's Office.
Co-Chair John Torgerson liked the original language of the
bill but agreed with Senator Dave Donley's concerns. His
intent was that the Governor be a part of the task force.
He didn't think the governor would veto this bill simply on
the premise that he was to appoint a labor union
representative.
Co-Chair John Torgerson noted he just received a copy of
the creation long range planning commission in which the
Governor did not veto and stipulated "two members of the
Executive Branch appointed by the Governor." Co-Chair John
Torgerson pointed out the inconsistency. He hoped the
Administration would work with the Legislature in forming
this task force.
Senator Loren Leman believed the long range planning
commission was formed under a different Governor and
suggested that the committee might not want to rely on that
application.
Senator Lyda Green asked if the bill passed without
Amendment #1A and if the Governor refused to appoint
members, if the Legislature could appoint members. Co-
Chair John Torgerson answered that failure to appoint
wouldn't defunct the committee.
Amendment #1A failed by a vote of 3-5-1. Senator Al Adams,
Senator Gary Wilken and Senator Loren Leman cast yea votes.
Senator Randy Phillips was absent.
Senator Loren Leman moved for adoption of Amendment #3.
Senator Al Adams objected for question. Senator Loren Leman
explained the amendment, which was in two parts. The first
change would insert language to empower the commission to
make government work smarter. The second change would
empower the commission to appoint an advisory council to
give a broader base of opinions and information.
Senator Loren Leman moved to amend Amendment #3 to delete
the language, "composed of representatives from the private
sector of the state economy" (page 1 lines 17 and 18 of the
amendment.) He fully expected all members of this advisory
committee would be representatives of the private sector
but didn't want to limit the commission's ability to
appoint others. His intention was that members of the
advisory council would donate their time and cover expenses
incurred in their duties on this council and provide
specialized expertise. The motion to amend Amendment #3
passed without objection.
Senator Loren Leman explained that this would be an
advisory council to the commission and would serve at the
commission's request in functions such as subcommittee
membership. Senator Gary Wilken asked why the commission
itself wouldn't do those things. Senator Loren Leman
answered saying nine members would not be enough in his
opinion. He wanted the commission to have a broader reach
and to hear further from the communities and pull together
those with expertise. Those people would not be
compensated. Senator Gary Wilken asked if the commission
itself, if they saw a need, could form its own council.
Senator Loren Leman said that was what this amendment would
accomplish. Senator Gary Wilken hated to see the bill fail
from its own weight so he would vote against the amendment.
Co-Chair John Torgerson asked Senator Gary Wilken if he had
a problem with the provisions in the rest of the amendment.
Senator Gary Wilken did not.
Senator Pete Kelly noted Senator Loren Leman's suggestion
that the commission could appoint an advisory council.
However, the language stated "shall". Therefore, it would
be a necessary part of the commission. Senator Loren Leman
responded that was correct, but it did not dictate how the
council would operate and left those decisions up to the
commission. He fully expected the commission would want to
seek others to help with their work.
Amendment #3 as amended, failed by a vote of 4-4-1. Senator
Dave Donley, Senator Loren Leman, Senator Sean Parnell and
Senator John Torgerson cast yea votes. Senator Randy
Phillips was absent.
Co-Chair John Torgerson said he was having another
amendment drafted that would return the word
"privatization" at the request of the sponsor. Senator
Gary Wilken asked that another amendment be drafted to
include the consolidation and efficiency language from
Amendment #3.
Senator Al Adams requested another day to look at both
amendments in writing.
Co-Chair John Torgerson ordered the bill held in committee.
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