Legislature(1995 - 1996)
03/09/1996 10:03 AM STA
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
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.