Legislature(2009 - 2010)BELTZ 105 (TSBldg)
04/14/2010 09:00 AM Senate STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| HB348 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 225 | TELECONFERENCED | |
| + | HB 348 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
SENATE STATE AFFAIRS STANDING COMMITTEE
April 14, 2010
9:06 a.m.
MEMBERS PRESENT
Senator Linda Menard, Chair
Senator Kevin Meyer, Vice Chair
Senator Hollis French
Senator Albert Kookesh
MEMBERS ABSENT
Senator Joe Paskvan
COMMITTEE CALENDAR
COMMITTEE SUBSTITUTE FOR HOUSE BILL NO. 225(FIN)(CORRECTED)
"An Act relating to the State Procurement Code; relating to the
procurement of supplies, services, professional services,
construction services, state fisheries products, state
agricultural products, state timber, and state lumber; relating
to procurement preferences; relating to procurement by the
office of the ombudsman, the Alaska Industrial Development and
Export Authority, the Alaska Energy Authority, and other state
agencies and public corporations; and providing for an effective
date."
- SCHEDULED BUT NOT HEARD
COMMITTEE SUBSTITUTE FOR HOUSE BILL NO. 348(JUD)
"An Act relating to the membership of the state personnel
board."
- MOVED CSHB 348(JUD) OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: HB 348
SHORT TITLE: PERSONNEL BOARD MEMBERSHIP
SPONSOR(s): REPRESENTATIVE(s) LYNN
02/17/10 (H) READ THE FIRST TIME - REFERRALS
02/17/10 (H) STA, JUD
03/11/10 (H) STA AT 8:00 AM CAPITOL 106
03/11/10 (H) Heard & Held
03/11/10 (H) MINUTE(STA)
03/16/10 (H) STA AT 8:00 AM CAPITOL 106
03/16/10 (H) Moved CSHB 348(STA) Out of Committee
03/16/10 (H) MINUTE(STA)
03/17/10 (H) STA RPT CS(STA) 3DP 1NR 2AM
03/17/10 (H) DP: PETERSEN, SEATON, LYNN
03/17/10 (H) NR: GATTO
03/17/10 (H) AM: GRUENBERG, P.WILSON
03/29/10 (H) JUD AT 1:00 PM CAPITOL 120
03/29/10 (H) Moved CSHB 348(JUD) Out of Committee
03/29/10 (H) MINUTE(JUD)
03/31/10 (H) JUD RPT CS(JUD) 4DP 2NR
03/31/10 (H) DP: LYNN, GRUENBERG, GATTO, HOLMES
03/31/10 (H) NR: HERRON, RAMRAS
04/07/10 (H) TRANSMITTED TO (S)
04/07/10 (H) VERSION: CSHB 348(JUD)
04/08/10 (S) READ THE FIRST TIME - REFERRALS
04/08/10 (S) STA, JUD
04/14/10 (S) STA AT 9:00 AM BELTZ 105 (TSBldg)
WITNESS REGISTER
MICHAEL SICA
Staff to Representative Bob Lynn
Alaska State Legislature
Juneau, AK
POSITION STATEMENT: Presented HB 348 for the sponsor.
DOUG WOOLIVER, Administrative Attorney
Alaska Court System
Anchorage, AK
POSITION STATEMENT: Testified that the court is neutral on HB
348 but is uncomfortable being in the position of forwarding
names for boards and commissions.
MIKE FORD, Attorney
Civil Division
Department of Law (DOL)
Juneau, AK
POSITION STATEMENT: Raised two concerns about HB 348.
NICKI NEAL, Director
Personnel and Labor Relations
Department of Administration and
Secretary,
Personnel Board
POSITION STATEMENT: Testified that the personnel board is
neutral on HB 348.
ACTION NARRATIVE
9:06:37 AM
CHAIR LINDA MENARD called the Senate State Affairs Standing
Committee meeting to order at 9:06 a.m. Present at the call to
order were Senators Meyer, Kookesh, and Menard.
SENATOR MENARD announced that HB 225 would not be heard today.
HB 348-PERSONNEL BOARD MEMBERSHIP
9:07:55 AM
SENATOR MENARD announced consideration of HB 348. [CSHB 348(JUD)
was before the committee.]
9:08:11 AM
SENATOR MENARD called a brief at ease pending the arrival of the
bill sponsor.
9:09:18 AM
SENATOR MENARD called the meeting back to order.
9:09:28 AM
MICHAEL SICA, Staff for Representative Bob Lynn, said HB 348
attempts to help a board that has become of great interest to
the public in recent years. The personnel board deals with
complaints against the governor, the lieutenant governor and the
attorney general (AG). The board has other duties, but their
powers and duties on the Alaska Executive Branch Ethics Act have
become very public. In recent years, the board has become more
involved with public policy, dealing with issues such as
balancing the high cost of defending against ethics complaints
with confidentiality or having the AG look into recovering fees
from people who file frivolous complaints. Board members work
hard and do not get paid. Though they are a public entity
involved in issues of interest, the sponsor feels they deal with
a lot of heat that is not deserved.
The sponsor of HB 348 feels some sting can be taken out of
accusations by showing that the board is not a rubber stamp for
the governor who appoints them. Currently, the personnel board
is described as an independent agency appointed by the governor.
HB 348 proposes that the Chief Justice nominate lists of people
for the personnel board while allowing the governor to request
additional lists. The process of the Chief Justice forwarding
names, which the governor still picks from, respects the
governor's power and insulates the board by showing some
impartiality.
He noted the fiscal note is zero and summarized the intent of HB
348: To achieve broad representation and decrease the likelihood
of one governor appointing all members by increasing the members
from three to five; to have the governor make appointments from
a list provided by the chief justice, thereby creating an
important layer of insulation; and to ensure diversity of
opinion by having at least one member from the political party
of the candidate for governor with the highest number of
registered voters and with the second highest number of
registered voters. Also, a conflict section, similar to that in
Alaska Public Offices Commission (APOC) and the Select Committee
on Legislative Ethics, creates an important standard.
9:13:24 AM
SENATOR MEYER said the legislative ethics board is selected by
the chief justice.
MR. SICA confirmed this.
SENATOR MEYER asked why the same thing is not done for the
personnel board.
MR. SICA said the legislature decided to put the ethics board
together this way. The sponsor wanted to allow the governor to
maintain more power to set the qualifications for the personnel
board. To have the legislature set the qualifications for
another branch through a third branch could give rise to a
separation-of-powers issue.
9:14:39 AM
SENATOR MEYER asked if changes to the personnel board should be
coming from the governor's office.
MR. SICA said that argument could be made. But in the absence of
action by the governor's office, we all work together in the
checks and balances of government.
SENATOR MEYER said if the legislature can only go so far due to
the separation of the three branches, then perhaps the executive
branch should come up with their own changes. He is concerned
that the governor can indefinitely reject the chief justice's
lists. While he thinks involving the chief justice is a good
idea, he suggested the chief justice select the personnel board.
MR. SICA said Representative Lynn would likely be open to that
idea.
SENATOR MEYER asked how the executive branch or governor's
office feels about HB 348.
MR. SICA said the Department of Law (DOL) has been very polite
and will speak for itself.
9:17:08 AM
SENATOR MENARD said she believes not having good lists is a
problem with all boards and commissions. The governor is often
put in position of nominating people for boards and commissions
when no one has come forward and offered. She supports adding a
list for this board.
9:18:03 AM
MR. SICA pointed out that a lot of other boards and commissions
provide nominating lists for the governor. He noted that APOC,
under the governor, has five members, four of which come
directly from the central committee of political parties. He
felt that brings up a separation of powers issue.
SENATOR MENARD added that APOC is one major reason why people do
not put their names forward for boards and commissions. Many
great leaders have been successful and must expose everything,
creating a privacy issue and a challenge to getting qualified
people on boards.
SENATOR MEYER conceded that the legislature is partly to blame.
People on boards and commissions are volunteering their time.
Their resume, pros and cons, are discussed and not everyone
wants everything public.
9:20:41 AM
SENATOR FRENCH joined the meeting.
9:21:00 AM
DOUG WOOLIVER, Administrative Attorney, Alaska Court System,
said the court does not support or oppose legislation. The court
is generally uncomfortable being in the position of forwarding
names although there is a history of the court doing so. The
court has forwarded names for legislative confirmation for the
legislative ethics committee since 1986. That system has worked
well. The chief justice also makes the fifth selection for the
redistricting board which can be politically awkward. HB 348
proposes a similar role for the executive branch and this is not
a role the court cherishes. The personnel board is different
because it has a limited oversight role for the entire personnel
and executive branch, giving final approval to the personnel act
or rules for the entire executive branch. They make some
decisions about who is in the classified and exempt services.
Even an indirect and minor role in the personnel of another
branch is something the court is uncomfortable with. He would
like it on the record that this is not something the court likes
to do.
9:23:31 AM
SENATOR MEYER clarified that the chief justice brings forward a
list of names for the legislative ethics board and the
legislature confirms them.
MR. WOOLIVER said that is correct.
SENATOR MEYER asked if this process has been controversial or if
the legislature has ever rejected the judge's selection.
MR. WOOLIVER replied that the legislature initially rejected all
the applicants on the first set of names that came up, which was
in 1993 or 1994. Some political maneuvering was going on. Since
that time all the names have been confirmed and he does not
believe there has been controversy.
9:24:42 AM
SENATOR MEYER said he has never seen the legislature reject the
chief justice's recommendation in the last 12 years. He asked if
Mr. Wooliver is concerned that HB 348 could possibly result in
the governor indefinitely asking for a new list of names, all
outside of the legislature.
MR. WOOLIVER said it is possible that the governor could reject
names repeatedly. He assumed that is unlikely and this system
for the personnel board would work like the system for the
legislative ethics board.
CHAIR MENARD commented that it depends on how reasonable the
governor is.
9:26:04 AM
MIKE FORD, Attorney, Civil Division, Department of Law (DOL),
said the department would like to raise two concerns. First, the
Article 3, Section 26, of the constitution provides a process
whereby the governor appoints members and the legislature
confirms them. HB 348 tries to add a third step whereby the
chief justice selects people. The cleanest way to create this
new process is to amend the constitution. Statutory restriction
on the governor's power raises the separation of powers
question. The last effort to change the process was in the
1970's. The legislature attempted to expand the confirmation
process to include deputy commissioners and some division
directors. The court struck down that statute and found that it
was beyond the power of the legislature to amend the process.
Here, the same problem exists: the legislature is attempting to
restrict the governor's power of appointment by requiring the
chief justice to provide a list.
The second issue is about the actual effect on the process. He
said, "the target is misplaced here". Ethics complaints against
the governor over the last few years have not been resolved by
the personnel board. If HB 348 became law, expanding the board
and adding the chief justice to the process, an independent
council would still rule on these complaints, not the personnel
board. The process would be the same in spite of these changes.
SENATOR MENARD asked Mr. Ford if he had an opinion about
increasing the board from three to five members.
9:29:12 AM
MR. FORD replied that is not a legal concern.
SENATOR MEYER asked if DOL's legal concerns would be satisfied
if this legislation were to come from the governor.
MR. FORD answered no. He would not propose legislation unless
there was substantial legal standing for it.
9:30:35 AM
SENATOR MEYER said he believes this issue is coming up because
of the numerous frivolous ethics charges brought forward. If
concerns weren't made public until after the ethics board ruled,
perhaps so many ethic charges would not be brought forward.
However, he understands, and would like to get it on the record,
that ethics concerns have to be made public.
MR. FORD said he thinks Senator Meyer is asking how
confidentiality of an ethics complaint is maintained.
Confidentiality must be balanced with a person's right of free
speech. For example, the legislative process requires that a
complaint be dismissed if confidentiality is breeched.
Incorporating that approach into the executive branch has been
suggested but there are serious concerns about that also. It is
unfortunate when a complaint becomes public before it should.
The law clearly says that they are confidential and should not
be disclosed; there is not a solution for that problem.
SENATOR MEYER said legislative and executive branches are very
different. Everyone in the legislative branch is elected; the
temptation to bring forth an ethics charge for political reasons
is a greater than bringing one against someone in the executive
branch. The media and public attention to ethics charges that
ended up being unsubstantial has brought a lot of this to where
we are today.
9:33:08 AM
MR. FORD reiterated that if HB 348 becomes law, the process will
not change. The independent council will weigh in first to
determine if the validity of a complaint. The changes being
contemplated with HB 348 will not make a difference to the
process. Whether it changes the view of the public, he cannot
say.
9:33:48 AM
NICKI NEAL, Director, Personnel and Labor Relations, Department
of Administration and, Secretary, Personnel Board, said the
personnel board is neutral. A zero fiscal note was prepared in
spite of the increase in board members. Board members are
volunteers and typically meet quarterly over the lunch hour, via
teleconference.
9:35:20 AM
SENATOR MEYER asked if board members serve four years.
MS. NEAL answered that she believes they serve six years.
SENATOR MEYER asked if board members can serve more than one
term.
MS. NEAL replied yes. She is not aware of a term limit.
SENATOR MEYER commented that turnover on the board is good.
9:36:38 AM
SENATOR FRENCH noted that the next committee of referral is
Judiciary and he would be interested in Alpheus Bullard's,
[Legislative Legal], views on the separation of powers arguments
raised by the DOL this morning because they are worth
considering.
CHAIR MENARD concurred.
9:37:03 AM
SENATOR MENARD closed public testimony.
9:37:14 AM
SENATOR MEYER commented that there are major legal concerns,
such as the separation of powers. The State Affairs committee is
not the place to address those, so he agrees with passing HB 348
on to judiciary where legal issues can be scrutinized.
SENATOR MEYER moved to report CS for HB 348 from committee with
individual recommendations and accompanying fiscal notes. There
being no objection, CSHB 348(JUD) moved from the Senate State
Affairs Standing Committee.
9:38:40 AM
CHAIR MENARD, seeing no further business to come before the
committee, adjourned the meeting at 9:38 a.m.
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