Legislature(2001 - 2002)
04/02/2002 03:40 PM STA
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 331-PRESENTMENT OF GOVERNOR'S APPOINTEES LINDA SYLVESTER, legislative aide to Representative Pete Kott, introduced HB 331 and read the preamble to AS 39.05.070 that clarifies how presentments of the Governor are handled: The purpose of this section of statute is to provide the procedural uniformity in the exercise of appointive powers conferred by the Legislature to eliminate, insofar as possible, recess or interim appointments except in the event of death, resignation, inability to act or other removal from office and the exercise, insofar as possible, of appointive powers only when the Legislature is in session. Following is the sponsor summary: HB 331 eliminates ambiguities in AS 30.05.080 making it clear that presentment of the governor's appointees to boards and commissions may only occur during regular sessions of the legislature. This bill eliminates the potential for confirmation sessions occurring during special sessions and it also reconciles potentially conflicting language regarding the timing of the appointee's presentation. This issue arose at the end of the 2001 regular session, following the failed confirmation bid of a Game Board appointee. In response to that event, under paragraph (3), the governor made a new appointment and presented the name to the Legislature within 20 days following notification of the failed nomination. As to that Game Board vacancy, the Governor was correct under paragraph (3) in appointing and presenting the name, but since the regular session of the Legislature had adjourned, under paragraph (1), that presentment was ineffective. The waters become muddy because the 20-day requirement (that the governor has to name a candidate following a failed confirmation) of paragraph (3) is a direct conflict with paragraph (1), which states that only presentment that occurs during a regular session constitutes presentment. To further complicate the issue, AS 39.050.080 by: · Removing the 20-day requirement in paragraph (3) and keeping the requirement of paragraph (1) stating that only presentment during a regular session is valid; · Inserting as appropriate throughout the section, "regular," · Removing "within five calendar days" from the latter part of paragraph (1) because the five-day presentment requirement in paragraph (1) is just as problematical as the 20-day presentment requirement since the fifth day could be outside the regular session even if the appointment were made during the regular session. MS. SYLVESTER explained the following changes: On page 2, line 3, after "expire" insert "on or before" and on line 6, delete the words "within five calendar days after the appointment is made," and insert "immediately." The five day presentment requirement was problematic because the fifth day could be outside the regular session even if the appointment was made during the regular session. On page 2, lines 8-9 delete, "The deadline may be extended by the Legislature by the approval of a concurrent resolution." and insert "immediately." It is unconstitutional to modify a statute by concurrent resolution; a statute can only be modified by adoption of another statute. CHAIRMAN THERRIAULT asked whether Legislative Legal said that point was unworkable. MS. SYLVESTER said they have something that says it is unclear whether or not an appointee can be confirmed during the special session. CHAIRMAN THERRIAULT restated his question concerning the constitutionality of extending the deadline by passage of a concurrent resolution. MS. SYLVESTER replied that was unconstitutional. On page 2, lines 24-28, the following is deleted: "The new appointment shall be presented for confirmation to the Legislature within 20 calendar days following receipt by the governor of the legislature's notification of its refusal to confirm the prior appointment." CHAIRMAN THERRIAULT recapped using a hypothetical situation that might occur at the end of a regular legislative session if an appointee is turned down and the regular session is over the following day. The Governor would make a locum tenens appointment and the powers for that position would come under paragraph (4), page 3, lines 5-25. When the Legislature next convened in regular session eight or nine months later, the Governor would present his appointee within the first 30 days and the Legislature would confirm or deny the appointment. He noted the board member would be participating and making decisions for almost a year after which they might be denied the appointment. MS. SYLVESTER said the Governor's Office proposed inserting language saying that the Governor would refrain from making appointments within the last fourteen days of the regular legislative session. They believe this is problematic because the Legislature wouldn't have the authority to limit the Governor and he could simply ignore it or the law would be unconstitutional. The other problem is that if the Governor does make a presentment to the Legislature during the last few days of a regular session the Legislature could act if it weren't limited by the fourteen day rule. Additionally, on page 3, lines 3 and 4 the statute stipulates that if the Legislature does not act by the end of the regular session that is tantamount to declination. The have added the word "regular" before the word "session" here and every place "session" occurs to make it very clear that it takes place during the regular session. CHAIRMAN THERRIAULT asked for the administration's position on the bill in general. MS. SYLVESTER replied they liked the fact that it was a clean-up bill, but they wanted the fourteen days. They weren't very receptive to the word, "immediate." CHAIRMAN THERRIAULT wanted to take time to think about the implications of the legislation, but asked Ms. Sylvester to assure Representative Kott that he didn't have a specific problem with the bill. HB 331 was held in committee.