Legislature(2001 - 2002)

02/28/2002 08:08 AM STA

Audio Topic
* first hearing in first committee of referral
+ 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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