Legislature(1999 - 2000)
03/09/1999 09:02 AM FIN
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SENATE BILL NO. 33 "An Act relating to the Task Force on Privatization; and providing for an effective date." This bill was heard in committee once before. Senator Al Adams returned to the separation of powers debate from the previous meeting. He thanked the sponsor, Senator Jerry Ward, for sharing the legal opinion written by the Legal Services Division. He said the Legislature's opinion differed from the Department of Law. The two amendments he was offering would address those issues. One amendment addressed the selection of members and would assign selection to the Legislature rather than the Governor as stated in the bill. The second amendment would remove the Governor from the selection process and grant per diem to the public members of the commission. Senator Al Adams moved for adoption of Amendment #1, which would remove members appointed by the Governor and the local boundary commission position. Senator Sean Parnell objected. Senator Gary Wilken requested the question be divided to separate the boundary commission appointment and the appointments by Governor's office. Co-Chair John Torgerson granted the request. Amendment #1A would change page 2 line 16 deleting "11" and inserting "8" and delete lines 17 and 18 delete two members selected by the governor. Amendment position of the local boundary commission member. Amendment public members of the commission. Co-Chair John Torgerson repeated the Department of Law's concerns with the separation of powers issue. The Legislative Legal Services Division gave the opinion that because the commission was advisory it was not subject to separation of powers rules. Co-Chair John Torgerson said he had no opinion on the amendment but had felt it was important that the Administration be involved in the selection of the commission members. Amendment #1A was adopted without objection. Senator Gary Wilken commented on Amendment #1B, saying he felt that representation from the local boundary commission was important. Senator Al Adams pointed out that the Governor would also appoint the local boundary commission position and because the other Governor appointed positions had been removed, this should be removed also. He suggested the local boundary commission could be consulted in an advisory capacity. Amendment #1B failed by a vote of 2-4-3. Senator Loren Leman and Senator Al Adams cast yea votes. Senator Pete Kelly, Senator Lyda Green and Senator Randy Phillips were absent. Co-Chair John Torgerson asked Senator Al Adams if Amendment Senator Al Adams affirmed and suggested technical corrections could be made if necessary. Amendment #1C was adopted without objection. Co-Chair John Torgerson noted the conceptual change to page 2 line 16 reflecting that the commission would consist of nine members. Senator Al Adams spoke to Amendment #2 and moved for adoption. He explained that with the removal of the Governor's appointments to the commission, this amendment would provide for the appointment of two members of the public selected from a list of nominees submitted by labor organizations that represent state employees. Senator Dave Donley objected. Senator Al Adams believed it was important for union members were associated with this effort. The motion failed by a vote of 2-4-3. Senator Gary Wilken and Senator Al Adams cast yea votes. Senator Pete Kelly, Senator Lyda Green and Senator Randy Phillips were absent. Senator Dave Donley moved to rescind action taken on Amendment #1A. Senator Al Adams objected. Senator Dave Donley spoke to motion saying he felt the Governor and subsequently, labor unions, should be involved in this process and were essential for the effort to be successful. He didn't think there was a constitutional problem with separation of powers. Senator Al Adams restated the legal debate regarding separation of powers. He felt this would set bad precedent. Agency personnel would participate in the process and offer their resources, he argued. The motion to rescind action on Amendment #1A passed by a vote of 5-2-2. Senator Al Adams and Senator Gary Wilken cast the nay votes. Senator Pete Kelly and Senator Randy Phillips were absent. Senator Dave Donley commented that this was a good way to get statewide representation of both labor organization and the Governor on the commission. They were necessary for the success of the commission. He noted that because this would be an advisory commission, it was exempt from the separation of powers restrictions. He asked the sponsor if this would be similar to the membership system in the bill from the prior year. Mark Hodgins affirmed. Senator Dave Donley noted that version passed both the Senate and the House of Representatives and was then vetoed. Mark Hodgins made the correction that SB 68 was from several years ago and vetoed by governor. The privatization bill brought forward last year did not pass from the House of Representatives. Senator Dave Donley asked if the prior bills had a similar membership system. Mark Hodgins said they did. One of the three reasons given by the Governor for vetoing SB 68 was the separation of powers issue. Under this context, separation of powers was not a problem according to Legal Services' Tam Cook's legal opinion. Senator Al Adams requested a representative of the Department of Law to speak on the separation of powers matter. MARJORIE VANDOR, Assistant Attorney General, Governmental Affairs Section, Civil Division, Department of Law, said the department had looked at Tam Cook's analysis and didn't debate her method of analyzing the Uniform Rules. However, the different branches of government had different views on the separation of powers when it came to advisory committees. Whether a committee was advisory would not change the underlying analysis according to the Department of Law. The Administration did not oppose this task force or its goals Marjorie Vandor stressed. The problem was that it was a bill and had the force of law and mandated the Governor to appoint, and who to appoint, which raised separation of powers concerns. The Governor might chose to comply and appoint members to the commission, she said. However, historically this would be considered a separation of powers problem and would be an infringement on his normal, and strong, appointment powers. It was important for the historical record for future Governors that it not be consider a waiver of appointment on future task forces, she stated. Senator Sean Parnell wanted to know if, when the bill that established the long range financial planning commission passed, was there a requirement of who the governor would appoint. Marjorie Vandor was not familiar with that bill, but offered to check. Co-Chair John Torgerson clarified that the Department of Law's main difference of opinion with the Legal Services Division was that if the commission was under Uniform Rules there would not be the separation of powers issue. But because it would be in statute the issue was a problem. Marjorie Vandor responded that it was a constitutional issue. She felt that Tam Cook's opinion seemed to be more geared toward the Uniform Rules but did not address the constitutional issue, which the department believed was the major underlying problem. "Any time you mix committees, its going to be raised", she surmised. Co-Chair John Torgerson didn't understand the Administration's objection. Was it because the Legislature would direct the Governor to appoint a union representative or was it because the Legislature was directing him to appoint anybody, he asked. Marjorie Vandor said it was a combination of both. She suggested that the reason the commission was being created in the form of a bill was that the Legislature was afraid the Governor would not appoint a member. "We're not saying that the Governor may not want to do it, that he doesn't believe this committee has a good purpose," she said. She was concerned with the historical precedence. Co-Chair John Torgerson surmised that the Governor would look awful silly vetoing this under those grounds. Senator Gary Wilken said his support of Amendment #1A was more practical than legal. He wanted to see this effort to go through and to have a commission on privatization. Past problems had been with the Governor's Office so it seemed to him that removing the Governor from the equation would remove the roadblock. This was focusing efforts on the wrong thing, he stressed. If the Governor appointments were removed, the Legislature could be relatively sure the bill would become law and the process could begin. Senator Dave Donley commented that one thing he liked about the language was that the Governor, sitting statewide, picked someone from organized labor to sit on the task force. He thought that was an important element in the process. If the Governor was removed, he suggested allowing the labor organization to appoint their own representative the same as with the Alaska State Chamber of Commerce member. That would solve part of his concern. He felt there needed to be some participation from the Executive Branch. Senator Gary Wilken agreed with Senator Dave Donley and thought there should be a representative from organized labor on the task force. However that was a different issue than involvement from the governor's office. Senator Dave Donley said the reason he brought it up was because the amendment would remove the provision to provide for the labor representation. Senator Gary Wilken pointed out another amendment before the committee that would add two members of organized labor and said that could be taken up with the Governor's Office. Co-Chair John Torgerson liked the original language of the bill but agreed with Senator Dave Donley's concerns. His intent was that the Governor be a part of the task force. He didn't think the governor would veto this bill simply on the premise that he was to appoint a labor union representative. Co-Chair John Torgerson noted he just received a copy of the creation long range planning commission in which the Governor did not veto and stipulated "two members of the Executive Branch appointed by the Governor." Co-Chair John Torgerson pointed out the inconsistency. He hoped the Administration would work with the Legislature in forming this task force. Senator Loren Leman believed the long range planning commission was formed under a different Governor and suggested that the committee might not want to rely on that application. Senator Lyda Green asked if the bill passed without Amendment #1A and if the Governor refused to appoint members, if the Legislature could appoint members. Co- Chair John Torgerson answered that failure to appoint wouldn't defunct the committee. Amendment #1A failed by a vote of 3-5-1. Senator Al Adams, Senator Gary Wilken and Senator Loren Leman cast yea votes. Senator Randy Phillips was absent. Senator Loren Leman moved for adoption of Amendment #3. Senator Al Adams objected for question. Senator Loren Leman explained the amendment, which was in two parts. The first change would insert language to empower the commission to make government work smarter. The second change would empower the commission to appoint an advisory council to give a broader base of opinions and information. Senator Loren Leman moved to amend Amendment #3 to delete the language, "composed of representatives from the private sector of the state economy" (page 1 lines 17 and 18 of the amendment.) He fully expected all members of this advisory committee would be representatives of the private sector but didn't want to limit the commission's ability to appoint others. His intention was that members of the advisory council would donate their time and cover expenses incurred in their duties on this council and provide specialized expertise. The motion to amend Amendment #3 passed without objection. Senator Loren Leman explained that this would be an advisory council to the commission and would serve at the commission's request in functions such as subcommittee membership. Senator Gary Wilken asked why the commission itself wouldn't do those things. Senator Loren Leman answered saying nine members would not be enough in his opinion. He wanted the commission to have a broader reach and to hear further from the communities and pull together those with expertise. Those people would not be compensated. Senator Gary Wilken asked if the commission itself, if they saw a need, could form its own council. Senator Loren Leman said that was what this amendment would accomplish. Senator Gary Wilken hated to see the bill fail from its own weight so he would vote against the amendment. Co-Chair John Torgerson asked Senator Gary Wilken if he had a problem with the provisions in the rest of the amendment. Senator Gary Wilken did not. Senator Pete Kelly noted Senator Loren Leman's suggestion that the commission could appoint an advisory council. However, the language stated "shall". Therefore, it would be a necessary part of the commission. Senator Loren Leman responded that was correct, but it did not dictate how the council would operate and left those decisions up to the commission. He fully expected the commission would want to seek others to help with their work. Amendment #3 as amended, failed by a vote of 4-4-1. Senator Dave Donley, Senator Loren Leman, Senator Sean Parnell and Senator John Torgerson cast yea votes. Senator Randy Phillips was absent. Co-Chair John Torgerson said he was having another amendment drafted that would return the word "privatization" at the request of the sponsor. Senator Gary Wilken asked that another amendment be drafted to include the consolidation and efficiency language from Amendment #3. Senator Al Adams requested another day to look at both amendments in writing. Co-Chair John Torgerson ordered the bill held in committee.