Legislature(1995 - 1996)

03/09/1996 10:03 AM STA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
 HB 359 - APPOINTMENT PROCESS FOR BDS & COMM'NS                              
                                                                               
 The next order of business to come before the House State Affairs             
 Committee was HB 359.                                                         
                                                                               
 CHAIR JAMES called on the sponsor of HB 359, Representative Brian             
 Porter.                                                                       
                                                                               
 Number 1462                                                                   
                                                                               
 REPRESENTATIVE PORTER explained HB 359 was an attempt to take the             
 politics out of the presentment and appointment process.  It was              
 based on a lawsuit of which an incoming Governor tried to replace             
 a commission member of the Alaska Public Utilities Commission                 
 (APUC).  The lawsuit was still on-going.  Therefore, the bill                 
 attempted to prevent that from happening again as-well-as to                  
 prevent the confirmation process from being circumvented.  The                
 Administration had some concerns about the original bill resulting            
 in the committee substitute before the committee members today.  He           
 asked James Baldwin, Department of Law, to come forward and discuss           
 the concerns of the Administration.                                           
                                                                               
 Number 1575                                                                   
                                                                               
 JAMES BALDWIN, Assistant Attorney General, Governmental Affairs               
 Section, Civil Division (Juneau), Department of Law, said he came             
 here today wearing two hats due to his long tenure with the                   
 Department, and his position of advising the Office of the Governor           
 regarding appointments.  The bill addressed the issue in a fair and           
 even manner.  There were going to be differences because the                  
 Administration represented different branches of government and               
 within each branch there were different attitudes.  The changes in            
 the committee substitute did not restrict the Governor's or the               
 Legislature's prerogatives.  The Administration was strongly                  
 opposed to the original version.  The majority of those issues had            
 been resolved in the committee substitute, however.  The issues               
 were based on the philosophical changes of different                          
 administrations creating disagreements for certain appointments.              
 The disagreements were usually for boards and commissions that                
 carried a salary and a term limit such as the Alaska Public                   
 Utilities Commission (APUC).  The first litigation case was                   
 mentioned by Representative Porter as a result of a disagreement.             
 The case, he explained, was now in the Supreme Court.  The main               
 issue was the propriety of the presentment process.  Presentment              
 was presumed or impled to have occurred when it was a necessary and           
 an important step in the appointment process according to the                 
 Administration.  He explained, so far, the superior court judge had           
 agreed with the Administration.  Furthermore, he commented the                
 attitude of a governor changed depending on where he was in the               
 term.  According to the Office of the Governor it was not a problem           
 anymore because it had passed that point.  It was now a problem for           
 the next governor.  He agreed the issue needed to be resolved,                
 however, because it was a continuing problem.  The bill therefore,            
 made presentment an important part of the process.  Moreover, it              
 defined an "interim term," to end at the beginning of a session.              
 The individual could then be reappointed for the remainder of the             
 session, if confirmed.  If the individual was not presented at the            
 beginning of the session, he was dismissed.  This, he alleged,                
 would solve the legal problem, but it created an administrative               
 problem for the Office of the Governor.  He commented                         
 Representative Porter was concerned about a governor removing an              
 appointee during the interim, for example, for reasons other than             
 cause.  He said that was not a major concern of the Administration,           
 however, because the Governor had to stand behind his appointments            
 and conduct himself in good faith.  Furthermore, it created a heavy           
 administrative burden.  He cited approximately 1,275 seats were               
 subject to the confirmation process, and according to the bill they           
 were due on March 1, followed by a reappointment presentation                 
 period to the legislature.  Mr. Baldwin said the spirit behind the            
 bill was to address appointments in the regular session.  The law             
 suit contended that the legislature could imply that an appointment           
 had been presented.  It appeared to be an administrative act only.            
 The language needed to be clarified.  He referred the committee               
 members to page 4, line 12 and suggested adding, "`each' governor             
 shall present to the legislature the names of the people                      
 appointed," so that a governor did not have to present the                    
 appointments of his predecessor.  He further explained there were             
 sections of the bill that made conforming amendments for boards and           
 commissions required by existing law to present a confirmation.               
 According to the Alaska State Constitution it was not necessary,              
 however.  He explained, there had been a long standing disagreement           
 between the legislature and the Governor over the interpretation of           
 the Alaska State Constitution addressing the confirmation of                  
 certain boards and commissions.  The legislature had enacted bills            
 that created boards and commissions and made the members subject to           
 the confirmation process.  The Administration said it was                     
 unconstitutional because of the laws on the books.  The                       
 Administration still did not support that notion even though the              
 bill contained conforming amendments.                                         
                                                                               
 Number 2114                                                                   
                                                                               
 REPRESENTATIVE PORTER explained the conforming amendments were                
 consistent to prevent additional problems in the statutes.                    
 However, he understood it would not solve the on-going debate                 
 between the Administration and the legislature concerning the                 
 interpretation of the Alaska State Constitution.                              
                                                                               
 Number 2159                                                                   
                                                                               
 CHAIR JAMES commented the issue needed to be resolved through a               
 court decision.                                                               
                                                                               
 Number 2207                                                                   
                                                                               
 MR. BALDWIN cited the 1976 case of Bradner v. Hammond.  He                  
 explained based on the decision of the case, the legislature                  
 decided to make the deputy commissioners subject to confirmation.             
 It was challenged further, however, and determined the legislature            
 could not extend its confirmation to any office other than what was           
 expressly provided for in the Alaska State Constitution.  The                 
 constitution stated it had to be a regulatory, a quasi-judicial, a            
 principal department head, or a board that was a principal                    
 department head to be subject to the confirmation process.  The               
 legislature went its own way, however, and cited the Railroad                 
 Corporation as an example.  However, even though the Administration           
 and the legislature had disagreed at times, those that made it                
 through were usually signed by the Governor, which should not be              
 implied as a matter of law that it was required.                              
                                                                               
 Number 2285                                                                   
                                                                               
 CHAIR JAMES asked if the boards and commissions conformed to in the           
 bill were advisory in nature?                                                 
                                                                               
 Number 2290                                                                   
                                                                               
 MR. BALDWIN replied many were not strictly advisory.  He cited the            
 Railroad Corporation as an example.  It was not a principal                   
 department head, a regulatory, or a quasi-judicial board.                     
 Furthermore, the conforming amendments in the bill amended the                
 Historical Commission.  He wondered why a confirmation was                    
 necessary.  It was not within the magnitude required by the Alaska            
 State Constitution.  He further cited the Royalty Oil and Gas                 
 Development Board.  The Board merely advised the legislature                  
 regarding oil contracts.  He again wondered why a confirmation was            
 necessary.                                                                    
                                                                               
 Number 2333                                                                   
                                                                               
 REPRESENTATIVE PORTER replied some appointments were made and not             
 submitted to the confirmation process.                                        
                                                                               
 REPRESENTATIVE GREEN replied it was a "mixed bag."  He cited the              
 Royalty Oil and Gas Development Board members had never been                  
 confirmed.                                                                    
                                                                               
 Number 2345                                                                   
                                                                               
 CHAIR JAMES wondered about the public state corporations.                     
                                                                               
 Number 2361                                                                   
                                                                               
 MR. BALDWIN explained, historically, the drafters of the Alaska               
 State Constitution were tired of so many boards and commissions               
 that balkanized state government.  The Alaska State Constitution,             
 therefore, was put together to confirm the central officer, and not           
 put together with the intention of the powerful public                        
 corporations.                                                                 
                                                                               
 Number 2413                                                                   
                                                                               
 REPRESENTATIVE PORTER commented the next committee of referral for            
 the bill was the House Judiciary Committee.  He said it would be              
 more appropriate to discuss these issue in that committee.  He                
 asked the committee members to consider moving it forward today.              
                                                                               
 Number 2433                                                                   
                                                                               
 REPRESENTATIVE IVAN asked Mr. Baldwin to clarify the word                     
 "balkanization."                                                              
                                                                               
 MR. BALDWIN replied it meant to segregate or divide.                          
                                                                               
 Number 2434                                                                   
                                                                               
 CHAIR JAMES agreed with Representative Porter that the legal                  
 aspects of the bill should be reviewed by the House Judiciary                 
 Committee.  Furthermore, she believed the confirmation process                
 served an important purpose.  It was the only place the public                
 could listen to the confirmation hearing.  Therefore, she supported           
 more confirmation hearings rather than less as long as it did not             
 interfere with the operations of the government.                              
                                                                               
 TAPE 96-32, SIDE B                                                            
 Number 0060                                                                   
                                                                               
 REPRESENTATIVE GREEN asked if there were any witnesses to testify             
 today on HB 359?                                                              
                                                                               
 CHAIR JAMES replied, "no."                                                    
                                                                               
 Number 0065                                                                   
                                                                               
 REPRESENTATIVE GREEN commended Chair James for confining the                  
 activity of the House State Affairs Committee to its described                
 functions.                                                                    
                                                                               
 REPRESENTATIVE GREEN moved to adopt CSHB 359(STA) (9-LS1242/G) as             
 a working document.  Hearing no objection, it was so adopted.                 
                                                                               
 Number 0093                                                                   
                                                                               
 REPRESENTATIVE IVAN asked Mr. Baldwin to explain subsection (4) on            
 page 5.                                                                       
                                                                               
 Number 0109                                                                   
                                                                               
 MR. BALDWIN replied subsection (4) specified the duration of an               
 interim appointment.  The appointment would last until the first              
 day of the next regular session unless confirmed.  Upon                       
 confirmation, the appointee would hold the office for the full                
 statutory term limit.  However, if the appointee was not confirmed            
 or continued, reappointment was not possible.                                 
                                                                               
 Number 0151                                                                   
                                                                               
 REPRESENTATIVE PORTER called the subsection a safeguard so that the           
 Governor could not skip the process.                                          
                                                                               
 Number 0158                                                                   
                                                                               
 REPRESENTATIVE ROBINSON wondered if anyone had ever introduced                
 legislation to review boards and commissions that did not fit                 
 within the Alaska State Constitution that were believed to need               
 legislative confirmation.                                                     
                                                                               
 Number 0174                                                                   
                                                                               
 MR. BALDWIN replied not from the Governor's side.  He could not               
 recall working on a bill of that nature.  The issue was looked at             
 frequently, however.                                                          
                                                                               
 Number 0191                                                                   
                                                                               
 REPRESENTATIVE ROBINSON asked Mr. Baldwin how many boards and                 
 commissions violated the Alaska State Constitution?                           
                                                                               
 Number 0197                                                                   
                                                                               
 MR. BALDWIN replied seven to eight.                                           
                                                                               
 Number 0203                                                                   
                                                                               
 REPRESENTATIVE ROBINSON further asked if those boards and                     
 commissions fit under the corporations?                                       
                                                                               
 Number 0211                                                                   
                                                                               
 MR. BALDWIN replied the big corporation that was subject to the               
 confirmation process was the Railroad Corporation.  The Governor              
 disagreed but signed the bill anyway.                                         
                                                                               
 Number 0238                                                                   
                                                                               
 REPRESENTATIVE GREEN moved that CSHB 359(STA) move from the                   
 committee with individual recommendations and attached fiscal                 
 notes.  Hearing no objection, it was so moved from the House State            
 Affairs Committee.                                                            

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