Legislature(2001 - 2002)
02/28/2002 08:08 AM House STA
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
HB 331-PRESENTMENT OF GOVERNOR'S APPOINTEES Number 2609 CHAIR COGHILL announced the next order of business, HOUSE BILL NO. 331, "An Act relating to appointment of persons to positions that require confirmation by the legislature; and providing for an effective date." Number 2648 LINDA SYLVESTER, Staff to Representative Pete Kott, Alaska State Legislature, presented HB 331 on behalf of Representative Kott, sponsor. She explained that it would eliminate ambiguities in statute that address when the governor presents an appointment to the legislature. She brought attention to a handout supplied for purposes of clarification. She noted that the amended procedures for appointment come from Article III, Section 26, of the [state] constitution. MS. SYLVESTER paraphrased the sponsor's sectional analysis [included in the committee packet] and added comments, as follows: First of all, in paragraph one, it directs the governor to present the ... appointed individuals to the legislature, and it stipulates that presentments can only occur while the legislature is in a regular session. ... It also ... makes it clear that this is the only time that an effective presentment can happen. Within the first 30 days after the legislature convenes in its regular session, the governor presents the names of people that ... have been appointed during the interim, or else positions that are going to expire on, or before, March 1. The paragraph reflects the elimination of the five-day period of time in which the governor had to present the individual to the legislature following the appointment. The five-day presentment requirement in paragraph one is problematic, because the fifth day could ... fall outside of the regular session, even if the appointment was made during the regular session. Number 2727 Moving on to paragraph two, it mandates the legislature to act on the governor's appointment, and the word "regular" is added throughout this paragraph so that it is perfectly clear that the confirmation hearings can only occur during the regular session, not during the special session. And then paragraph three: the 20-day provision from the governor's presentment, following the initial failed confirmation, is deleted. [A] ... situation arose last session with the game board: the legislature failed to confirm a nominee, and the confirmation hearings happened toward the end of the legislative session. So, the statute authorizes the governor 20 days, but that 20-day period to come up with another appointee fell outside of the end of the legislative session. So, the statute ... becomes unclear as to whether that person is rejected or whether or not the legislature is forced to hold confirmation hearings during the interim, if it holds a special session. ... So, eliminating these two provisions make it clear that the ... governor must do this during the ... regular legislative session. MS. SYLVESTER noted that one issue involves the word ["simultaneously"]. She referred to page 2, lines 4-8, which read: If an appointment is made after the first 30 days of the convening of the regular session but while the legislature is in regular session, the governor shall, simultaneously with making [WITHIN FIVE CALENDAR DAYS AFTER] the appointment [IS MADE], present to the legislature for confirmation the name of the person appointed. MS. SYLVESTER said [Governor Knowles] had expressed his thought that the word "simultaneously" was too confusing and instead had suggested the following wording: "the governor will refrain from making a presentation or appointment to the legislature within the last fourteen days of the ... regular legislative session." She said [the sponsor] prefers to keep the word "simultaneously", however, because the intention is to clearly state that confirmations, presentments, and "filling" boards and commissions will take place during the regular legislative session. Number 2849 CHAIR COGHILL stated his appreciation of [the sponsor's intent]. He clarified that the issue is that when [the legislature] gets to the last hours of the session, if an appointment is to be made, the legislature would be notified immediately. He asked Ms. Sylvester to confirm that when she says "simultaneously", she interprets that to mean immediately after the announcement of the appointment. MS. SYLVESTER answered in the affirmative. She noted that this portion of the statute dates back to territorial days, when the five-day provision would have served as a practical necessity for the time and cost involved in overland transportation. CHAIR COGHILL considered what might be wrong about saying "by the next working day". He noted that if [the governor] made an appointment on a Friday, that appointment would have to be reported by Monday; however, if a 24-hour limit were placed, that would create a problem with a Friday appointment. Number 2905 REPRESENTATIVE FATE said the use of the word "simultaneously" in that sentence was confusing. REPRESENTATIVE JAMES offered the following definition of "simultaneous" [source unspecified]: "A word of comparison, meaning that two or more occurrences are happening that are identical in time." She mentioned [the appointment and the report of it]. She said she assumed that when an appointment was made there would have to be an agreement. She indicated it wouldn't be when the decision was made, but when the person was notified. TAPE 02-20, SIDE B Number 2958 REPRESENTATIVE JAMES said a legislative person would have to be at a telephone, or [at the appointment] in person, in order to get that information [simultaneously], which she believed was problematic. Number 2928 REPRESENTATIVE HAYES remarked that he thought Chair Coghill had made a good argument regarding the "next working day", but asked Ms. Sylvester what the rationale was behind not wanting to use the language proposed by the governor. MS. SYLVESTER indicated there was no need to restrict a governor in the period of time in which he or she could make appointments; furthermore, the constitution does not vest the legislature with the authority to limit the governor. She noted that [the legislature] has the authority to confirm and, by law, to remove a commissioner. She asked why the legislature would want to restrict the governor. She noted that in the last 14 days [of regular session], it is possible for the legislature to bring together the confirmation hearings and act upon an appointment. MS. SYLVESTER mentioned 5-day and 20-day periods and a problem in the original [draft] of the bill regarding the timing of appointments falling outside of the time of a regular session. She added that [the sponsor] had chosen to bring this problem to the House State Affairs Standing Committee for resolution. She said other options regarding the 5-day period might be "the same day" or "concurrently". Number 2814 CHAIR COGHILL suggested the following amendment: On line 5, after the word "shall", insert the word "immediately" and delete everything up to the word "present". He read the change, as follows: "the governor shall immediately present to the legislature for confirmation the name of the person appointed". Chair Coghill referred to the definition of "immediate" found in Black's Law Dictionary, which read: Present; at once; without delay; not deferred by any interval of time. In this sense, the word, without any very precise signification, denotes that action is or must be taken either instantly or without any considerable loss of time. CHAIR COGHILL added his belief that the legislature would be within the legal definition [of the word] to ask [the governor] to immediately "do that." He said he thought that in the possible case of a court battle, it would have to be determined whether [the governor] did delay. He added that it would be defensible. REPRESENTATIVE JAMES said if that is the case, it would limit [the governor] somewhat regarding when he can make an appointment. She surmised it would need to be done in person; if that weren't the case, perhaps [the governor and the appointee] would already have an agreement, and then [the governor] would make the appointment. She indicated a possible difficulty adhering to this for an appointment made on a Sunday, for instance. Representative James noted that she was simply trying to figure out how this would work. Number 2740 MS. SYLVESTER offered her understanding that the appointment happens with a hand-delivered letter to the individual; although that is the procedure, nothing in statute dictates how it actually happens. She expressed her belief that "immediate" implies that if [an appointment] happens on a Sunday night, the next practicable moment to present it to the legislature and have it read across [the floor] would be "the next opportunity". MS. SYLVESTER brought attention to the preamble to the procedure for all appointments. She said the intent of "this course" in the statute is to provide procedural uniformity in the exercise of appointed powers conferred by the legislature to eliminate, insofar as possible, interim appointments, except in the event of death or resignation, for example. She summarized that the intent is to "keep this in a tight timeframe, keep it orderly, and to speed it up." She offered her belief that "immediately" would serve that intent. CHAIR COGHILL suggested the issue could be challenged by both sides, one saying the other didn't [perform the function immediately], and the other asserting the opposite. Number 2677 REPRESENTATIVE STEVENS remarked that Representative James's previous question had clarified that an appointment had been made when both parties agree that a letter has been transmitted. Number 2645 REPRESENTATIVE HAYES offered that he had no issue with the word "immediately"; however, he suggested that if Chair Coghill's amendment did not pass as a conceptual amendment, the committee could ask the drafters to design legal language to clarify the matter. He expressed a desire to have a "clean version" by moving the bill out of committee and having the drafters insert the appropriate language. CHAIR COGHILL noted that the House State Affairs Standing Committee was the only committee of referral for this bill. He said he would have the amendment drafted with the word "immediate" in it, take a look at it, get a legal opinion, and bring it back to the committee. [HB 331 was held over.]
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