Legislature(1995 - 1996)
02/14/1996 05:03 PM FSH
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 179 - LIMIT TERM OF COMMRS OF EDUC. & FISH/GAME Number 0051 REPRESENTATIVE GENE THERRIAULT presented the sponsor statement for HB 179: "House Bill 179 is intended to change the term of office for the commissioners of Education and Fish and Game so their terms do not exceed the term of the governor who appointed them. HB 179 is needed to avoid a situation in which an outgoing commissioner's contract must be honored by an incoming administration. "The Alaska State Constitution provides the power for the governor to appoint each principal department head. The Department of Education and the Department of Fish and Game are unique due to the involvement of their respective boards. "The principal head of the Department of Education is the Board of Education. The Board of Education appoints its principal executive officer. The board has the right to dismiss the commissioner if a dismissal is deemed necessary. HB 179 would eliminate the present five-year term as specified in current statute. "The Commissioner of Fish and Game is appointed by the governor from a list compiled by the Board of Fisheries and the Board of Game. HB 179 clarifies that the commissioner does serve at the pleasure of the governor and eliminates the reference to the commissioner of Fish and Game being approved to a five-year term. "The Alaska State Constitution grants the governor the power to appoint department heads. HB 179 reaffirms this constitutional right." Number 0172 REPRESENTATIVE THERRIAULT expressed his intent to address the potential problem of having to buy out contracts following a changeover in administration. The last time it had been a problem was during the changeover from the Hickel administration to the Knowles administration. At that time, rather than buy out the contract for the outgoing commissioner of the Department of Education, a position had been created at the University of Alaska Southeast. Number 0243 REPRESENTATIVE THERRIAULT noted that in the past, there had been concern that the outgoing commissioner of the Department of Fish and Game might initiate litigation against the state. There had been talk that, rather than litigate, the state would buy that commissioner out, which was the least expensive thing to do. Representative Therriault did not know why the five-year term had been specified in statute. He speculated that the boards might think that provided extra protection or continuity for the department. However, he felt that was an illusion if that was their thinking. Whenever a new administration was instated, they replaced those commissioners if they so chose. At times, however, there had been friction. Representative Therriault thought HB 179 would fix that problem. Number 0333 REPRESENTATIVE THERRIAULT explained that they had worked with the Department of Law and the Administration in coming up with a proposed committee substitute. He noted that individuals from the Department of Law were available to answer legal questions. Number 0362 CHAIRMAN AUSTERMAN said he was assuming the commissioners of the Department of Education (DOE) and the Department of Fish and Game were the only two that were a problem, with that being the reason those two were addressed in HB 179. Number 0392 REPRESENTATIVE THERRIAULT replied that was correct. He added that there had been separate legislation by Governor Knowles the previous year which dealt with DOE. Representative Therriault had researched whether other commissioners fell into a similar category and had identified the commissioner of Fish and Game, which led to the introduction of HB 179. Number 0423 REPRESENTATIVE KIM ELTON asked how Representative Therriault had dealt with the philosophical notion that both commissioners in question were not technically appointed by the governor, but rather were appointed by boards. He said it seemed the bill went far beyond the intent now in essentially admitting that these commissioners served at the pleasure of the governor. Number 0470 REPRESENTATIVE THERRIAULT replied that the boards were impaneled by the Administration. The original bill prohibited contracting with or appointing a commissioner past the term of the current sitting governor, which was a bit cumbersome. One governor did not obligate his successor to work with a commissioner who may be of a completely different philosophical bent. To avoid that, the state sometimes ended up buying somebody out. In the past, the commissioner of DOE had been contracted with by the Board of Education for a term exceeding the sitting governor's term of office. It was that, Representative Therriault explained, which had brought the problem to his attention. He did not believe buying out those contracts was in the state's best interest. Number 0561 REPRESENTATIVE ELTON understood that and felt it was a good example of why the current system may not work. He asked if members of the Board of Education, Board of Fisheries and Board of Game served at the pleasure of the governor. REPRESENTATIVE THERRIAULT replied he believed they did. He deferred to the Department of Law for the answer. Number 0606 CHRYSTAL SMITH, Legal Administrator, Office of the Attorney General, Department of Law, noted that she was speaking on behalf of both the Department of Law and the Administration. She voiced the Administration's support of the committee substitute for HB 179, saying it was important bill. In response to Representative Elton, Ms. Smith explained that under CSHB 179, the commissioner of DOE would serve at the pleasure of the board, whereas the commissioner of the Department of Fish and Game would serve at the pleasure of the governor. She noted that the latter was now appointed by the governor for a fixed term of five years, creating a rolling term. Number 0698 CHAIRMAN AUSTERMAN noted that before discussing the bill, a motion was needed for acceptance of the committee substitute, version C. Number 0716 REPRESENTATIVE GARY DAVIS moved that the committee adopt for use CSHB 179. There being no objection, it was so ordered. REPRESENTATIVE SCOTT OGAN referred to Section 1, which said the commissioner served at the pleasure of the board. He said he assumed that was the Board of Education. MS. SMITH replied yes. Number 0755 REPRESENTATIVE OGAN continued, noting that Section 1 read "and may not be appointed ... for a fixed term". Essentially, he said, the governor might like the commissioner but the board might not. He saw the potential for a major shift in policy, with the commissioner having to answer to the board. He suggested that would not necessarily be because a new governor wanted the commissioner gone; the commissioner would have to answer to both the governor and the board. Representative Ogan asked if that was a fair assessment. Number 0819 MS. SMITH responded, "Yes, I guess you could say that." She thought in cases where there had been a philosophical difference between the governor and the commissioner, with the board, but not the governor, wanting the commissioner, there had been times when the board had been replaced. Since the board served at the pleasure of the governor, that would happen if there was a really serious problem. Ms. Smith said she would defer to Thomas Dahl on that. She referred to the language being deleted by Section 5 and noted that previously, the board would have needed cause to remove a commissioner. If she understood it correctly, the board would not have been able to dismiss a commissioner for merely disagreeing with him or her. This allowed for some philosophical continuity between the board and the commissioner, she added. Number 0870 THOMAS H. DAHL, Assistant Attorney General, Transportation Section, Civil Division (Juneau), Department of Law, affirmed that was correct. He explained he was representing the Department of Education in this matter. Number 0906 REPRESENTATIVE OGAN expressed that he could see some philosophical reasons why it might be advantageous to have a commissioner carry over into the new administration. If there were a radical change in political views, it would make the transition slower and perhaps prevent such big swings in philosophy. MS. SMITH responded that would still be possible, assuming there was not a move to replace the board, because that commissioner would still be serving at the pleasure of the board. Unless there were some radical swing in philosophy and the governor replaced the whole board, there would be a moderating influence from the board, which was appointed on a rotating basis. Ms. Smith noted that CSHB 179 got rid of the concept of a fixed term and the necessity to buy somebody out or get involved in a court case. Number 0990 REPRESENTATIVE OGAN asked if there had been a history of those types of cases. He wanted to know if an actual problem was being addressed, rather than a potential problem. MS. SMITH replied that in her ten years in Alaska, she was aware of only one case where the commissioner had a fixed-term contract. She added that she could not swear to that. She did know that in the Department of Fish and Game there had been conversations involving commissioners with five-year contracts. Although she did not think those had ever led to a court case, the potential was there. Number 1037 CHAIRMAN AUSTERMAN recalled that the previous year, the possibility for problems had existed in the Department of Fish and Game, as well as in the Department of Education. With the exception of those two departments, the system was currently set up so that when a new governor came in, the whole philosophy of the Administration could change. Number 1066 REPRESENTATIVE ELTON noted that this was a move towards standardizing the way commissioners were appointed and removed, which he understood a need for. However, in the case of the commissioner of DOE, it was a move away from the traditional education system. Traditionally, a local school board hired a superintendent under contract. Although that contract sometimes needed to be bought out, it was a common way to do business in the educational system, all the way up to the commissioner of DOE. Representative Elton suggested that without offering a contract, it might be difficult, for example, to recruit as commissioner of DOE a great superintendent of schools from Fairbanks, because that person would have to give up guaranteed employment for something more tenuous. He noted that was especially true if trying to hire a commissioner in the third year of a governor's four-year term. He asked Mr. Dahl how the Department of Education felt about this. Number 1162 MR. DAHL deferred to Ms. Smith for an answer. MS. SMITH responded that she had conferred with the legislative liaison for DOE, who had indicated the department had no problems with CSHB 179 and supported it. Number 1191 REPRESENTATIVE ELTON asked if the current commissioner was operating under a contract. MS. SMITH replied she did not know whether she was or not. REPRESENTATIVE ELTON suggested that some of his questions would be better addressed in the House Health, Education and Social Services Committee. He said he would talk to some of those members to see if they had similar concerns. He moved that CSHB 179 be moved out of committee with individual recommendations and commented that there was no fiscal note provided. Number 1245 REPRESENTATIVE THERRIAULT indicated there was no fiscal note and added that if there were, it would be a savings to the state, which would no longer be buying out contracts. REPRESENTATIVE OGAN asked if it was appropriate to move a bill without a fiscal note. Number 1262 CHAIRMAN AUSTERMAN replied yes. There being no objection to the motion to move CSHB 179 out of committee with individual recommendations, it was so ordered.