Legislature(2001 - 2002)

04/02/2002 03:40 PM STA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= 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.                                                                                                   

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