Legislature(1995 - 1996)

02/14/1996 05:03 PM FSH

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= 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               
 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            
 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               
 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.                                           

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