Legislature(1993 - 1994)

04/07/1993 08:00 AM RES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
               HOUSE RESOURCES STANDING COMMITTEE                              
                          April 7, 1993                                        
                            8:00 a.m.                                          
  MEMBERS PRESENT                                                              
  Representative Bill Williams, Chairman                                       
  Representative Bill Hudson, Vice Chairman                                    
  Representative Con Bunde                                                     
  Representative Pat Carney                                                    
  Representative John Davies                                                   
  Representative Joe Green                                                     
  Representative Eldon Mulder                                                  
  Representative David Finkelstein                                             
  MEMBERS ABSENT                                                               
  Representative Jeannette James                                               
  COMMITTEE CALENDAR                                                           
  Confirmation:  Scott Ogan to the Big Game Commercial                         
                 Services Board                                                
            CONFIRMATION ADVANCED                                              
  *HB 260:  "An Act relating to the membership of the Alaska                   
            Chilkat Bald Eagle Preserve Advisory Council."                     
            PASSED FROM COMMITTEE WITH A DO PASS                               
  Confirmation:  Appointees to the Board of Game (Didrickson,                  
            COMMITTEE DISCUSSION ONLY, NO ACTION TAKEN                         
  (* first public hearing)                                                     
  WITNESS REGISTER                                                             
  W. Scott Ogan                                                                
  Palmer, Alaska  99645                                                        
  Phone:  745-3300                                                             
  Position Statement: Described his background and answered                    
                      questions related to his appointment to                  
                      the Big Game Commercial Services Board                   
  David Gray, Legislative Aide                                                 
    to Representative Jerry Mackie                                             
  Alaska State Legislature                                                     
  State Capitol                                                                
  Court Building, Room 602                                                     
  Juneau, Alaska  99801-1182                                                   
  Phone:  465-4925                                                             
  Position Statement: Presented sponsor statement on HB 260                    
  Bill Garry, Regional Manager                                                 
  Southeast Area                                                               
  Division of Parks and Outdoor Recreation                                     
  Department of Natural Resources                                              
  400 Willoughby Ave, Suite 300                                                
  Juneau, Alaska  99801                                                        
  Phone:  465-4563                                                             
  Position Statement: Supported HB 260                                         
  Ed Warren                                                                    
  Klukwan, Inc.                                                                
  P.O. Box 1389                                                                
  Sawmill Rd.                                                                  
  Haines, Alaska  99827                                                        
  Phone:  766-2211                                                             
  Position Statement: Supported HB 260                                         
  Barbara Blasco                                                               
  Assistant Attorney General                                                   
  Department of Law                                                            
  P.O. Box 110300                                                              
  Juneau, Alaska  99811-0300                                                   
  Phone:  465-3600                                                             
  Position Statement: Presented administration's legal opinion                 
                      on the confirmation of Jack Didrickson                   
                      and Ernie Polley to the Board of Game                    
  Jerry Luckhaupt, Attorney                                                    
  Legislative Affairs Agency                                                   
  Division of Legal Services                                                   
  130 Seward Street                                                            
  Juneau, Alaska  99801-2105                                                   
  Phone:  465-2450                                                             
  Position Statement: Presented legislative legal opinion on                   
                      the confirmation of Jack Didrickson and                  
                      Ernie Polley to the Board of Game                        
  PREVIOUS ACTION                                                              
  BILL:  HB 260                                                                
  BILL VERSION:                                                                
  SPONSOR(S):   REPRESENTATIVE(S) MACKIE                                       
  TITLE: "An Act relating to the membership of the Alaska                      
  Chilkat Bald Eagle Preserve Advisory Council."                               
  JRN-DATE     JRN-PG               ACTION                                     
  03/26/93       796    (H)   READ THE FIRST TIME/REFERRAL(S)                  
  03/26/93       796    (H)   RESOURCES, FINANCE                               
  04/07/93              (H)   RES AT 08:00 AM CAPITOL 124                      
  04/07/93      1076    (H)   RES RPT  8DP                                     
  04/07/93      1076    (H)   DP: HUDSON, CARNEY, GREEN,                       
  04/07/93      1076    (H)   DP: FINKELSTEIN, MULDER,BUNDE,                   
  04/07/93      1077    (H)   -ZERO FISCAL NOTE (DNR)  4/7/93                  
  04/07/93      1077    (H)   REFERRED TO FINANCE                              
  ACTION NARRATIVE                                                             
  TAPE 93-42, SIDE A                                                           
  Number 000                                                                   
  The House Resources Committee was called to order by                         
  Chairman Bill Williams at 8:17 a.m.  Members present at the                  
  call to order were Representatives Williams, Hudson, Bunde,                  
  Davies, and Green.  Members absent at the call were                          
  Representatives Carney, Finkelstein, James and Mulder.                       
  CHAIRMAN BILL WILLIAMS announced that there was a quorum                     
  present, and said the committee would first take up                          
  consideration of the confirmation of W. Scott Ogan to the                    
  Big Game Commercial Services Board, then would hear HB 260,                  
  and finally would examine the legal issues surrounding the                   
  confirmation of Jack Didrickson and Ernie Polley to the                      
  Board of Game.  He announced that the meeting was not being                  
  held by regular teleconference, but said that Mr. Ogan was                   
  on-line from Palmer.                                                         
  CHAIRMAN WILLIAMS told the members that Mr. Ogan had been                    
  appointed to fill a vacancy on the Big Game Commercial                       
  Services Board, effective March 9 and to expire June 30,                     
  Number 050                                                                   
  BOARD described his background and qualifications to the                     
  committee.  He is 40 years old and has been an Alaskan                       
  resident since 1975.  His occupation, he said, was as a                      
  cabinetmaker and he also held a private pilot's license with                 
  500 hours of Bush flying.  He noted his extensive hunting                    
  experience, and mentioned that his wife was a United States                  
  Fish and Wildlife Service biologist.                                         
  Number 098                                                                   
  REPRESENTATIVE CON BUNDE asked Mr. Ogan whether he had any                   
  relationship to the guide business which might serve as                      
  qualification for service on the board.                                      
  MR. OGAN replied that he had never been a guide, and the                     
  seat he was appointed to was set up as a citizen member of                   
  the board.  He described the composition of the board, which                 
  included guides and outfitters, as well as two citizen                       
  members to provide balance.  He reiterated his extensive                     
  experience as a hunter.                                                      
  Number 126                                                                   
  REPRESENTATIVE BUNDE asked Mr. Ogan whether he would be able                 
  and willing to meet the level of time commitment required of                 
  board members.                                                               
  MR. OGAN explained that he had been involved and outspoken                   
  in local issues for some time.  He recognized that serving                   
  on the board would be a thankless job monetarily, but felt                   
  he would derive satisfaction from being involved in the                      
  decision making process.  He noted that he values ethical                    
  hunting practices and wanted to contribute toward seeing                     
  ethics preserved in the sport.                                               
  Number 167                                                                   
  REPRESENTATIVE BUNDE endorsed Mr. Ogan's ideas and asked him                 
  to describe his overall feelings about the guide industry in                 
  MR. OGAN told him that the industry seemed to be in great                    
  turmoil.  He referred to privately owned exclusive use areas                 
  and noted that a recent court decision had eliminated the                    
  right to guide out of exclusive areas.  There was an effort                  
  to regain those rights based on a point system, he said, and                 
  added that this would be controversial.  He said that he had                 
  not had time to review all the issues before the board, but                  
  believed that was the main one.  He said guiding brings a                    
  great deal of money into Alaska and the industry faced                       
  pressures from subsistence and sport hunting interests.                      
  Number 226                                                                   
  CHAIRMAN WILLIAMS noted for the record that Representatives                  
  Pat Carney and Eldon Mulder had joined the meeting.                          
  REPRESENTATIVE JOE GREEN referred to Mr. Ogan's resume and                   
  client list that was distributed to committee members, and                   
  asked Mr. Ogan to explain the work he did for those clients.                 
  (A copy of Mr. Ogan's resume and client list may be found in                 
  the House Resources Committee Room, Capitol Room 124, and                    
  after the adjournment of the second session of the 18th                      
  Alaska State Legislature, in the Legislative Reference                       
  Number 240                                                                   
  MR. OGAN explained that in his cabinet making business, he                   
  had a number of commercial clients for whom he builds                        
  counters, shelves, teller-windows, etc.                                      
  Number 254                                                                   
  REPRESENTATIVE BUNDE commented that there were "a few bad                    
  apples" in the guide industry, and referred to recent                        
  scandals which were seen as damaging to the entire industry.                 
  He asked Mr. Ogan to comment, in light of his previously                     
  stated commitment to ethical practices in the guide                          
  Number 272                                                                   
  MR. OGAN said that often a bad apple or two can taint the                    
  whole industry.  He referred to specific instances where                     
  guides had hunted the same day they were airborne in                         
  violation of hunting regulations.  He was adamantly opposed                  
  to anyone who would compromise the ethics of guiding in                      
  Number 299                                                                   
  MR. OGAN referred to guide profits and the subject of guides                 
  being able to hunt in exclusive use areas.  He suggested                     
  that being able to hunt in such areas might be good                          
  incentive to guides to not violate regulations.                              
  VICE CHAIRMAN BILL HUDSON made a MOTION to advance the name                  
  of Scott Ogan for confirmation to the Big Game Commercial                    
  Services Board.                                                              
  Number 316                                                                   
  CHAIRMAN WILLIAMS  asked if there were any objections to the                 
  motion.  Hearing none, the MOTION PASSED.  He announced the                  
  committee would next take up HB 260.                                         
  HB 260:  CHILKAT BALD EAGLE PRESERVE ADV. COUNCIL                            
  Number 331                                                                   
  PRIME SPONSOR OF HB 260, read the bill's sponsor statement.                  
  The bill, he said, would add one member to the advisory                      
  board which oversees the bald eagle preserve.  In 1982, he                   
  explained, the legislature established the preserve and the                  
  advisory board, which was to be comprised of representatives                 
  of various interests.  These included national, state, and                   
  municipal officials, conservation groups, the business                       
  community, and a local fish and game advisory committee.                     
  MR. GRAY noted that the advisory board had not had                           
  representation by private land inholders who own land within                 
  the preserve.  He said there were issues of access and                       
  eminent domain which affected those inholders.  He noted                     
  that the preserve has been growing in popularity and                         
  attention from the tourism industry.  He said that inholders                 
  want to have a presence on the advisory board, especially                    
  since the actions of that board affect them directly.                        
  Number 393                                                                   
  REPRESENTATIVE GREEN asked if the statute defines the                        
  composition of the present 12-member board.                                  
  MR. GRAY replied that the information was contained in                       
  members' packets, with the statute on the final page.  He                    
  noted that AS 41.21.625 lists the board's membership, and                    
  designates that members are appointed by the governor.                       
  Number 407                                                                   
  REPRESENTATIVE PAT CARNEY asked how many inholders had land                  
  within the preserve.                                                         
  MR. GRAY said there were approximately 22.                                   
  REPRESENTATIVE BUNDE asked whether those inholders were                      
  residents of the properties, or were absentee land owners.                   
  MR. GRAY answered that he was not certain how many of those                  
  land owners reside there.  He mentioned that some of the                     
  land had come from Native corporation allotments, and that                   
  some was used for fishing, while some of the land was not in                 
  any use.  He said that whether lands were in use or not, the                 
  land inholders should have the opportunity to participate on                 
  the board.                                                                   
  Number 429                                                                   
  REPRESENTATIVE ELDON MULDER asked whether taxation without                   
  representation was an issue.                                                 
  MR. GRAY said he was not prepared to speak to that issue.                    
  CHAIRMAN WILLIAMS noted for the record that Representative                   
  Finkelstein had joined the meeting.                                          
  Number 440                                                                   
  RESOURCES (DNR), told the committee that as manager of the                   
  Chilkat Bald Eagle Preserve, he was in support of HB 260.                    
  He said that he did not know an accurate figure on the land                  
  status of inholders.                                                         
  Number 451                                                                   
  REPRESENTATIVE GREEN asked if there were any restraints on                   
  private ownership of land within the preserve, and whether                   
  land ownership has an adverse affect on the eagles.                          
  MR. GARRY responded that he was involved only when inholders                 
  entered into a modification of the landscape.  He noted that                 
  motorized access is allowed on the preserve, but said the                    
  DNR would be involved if a road were built.  He agreed that                  
  an additional position on the board would allow                              
  representation of the access interests.                                      
  Number 469                                                                   
  VICE CHAIRMAN HUDSON asked if there were any multiple use                    
  activities going on, or mineral rights activities.  He asked                 
  what restrictions were placed on private landholders in                      
  development of their lands.                                                  
  MR. GARRY replied that the ownership and development rights                  
  were complex, and said there was some logging and mining                     
  taking place within the preserve.                                            
  REPRESENTATIVE BUNDE asked whether the estimate of 22 land                   
  inholders was accurate.                                                      
  Number 485                                                                   
  MR. GARRY believed it was, but said he did not know the                      
  exact number.  The two largest land inholders, he said, were                 
  the University of Alaska and the Mental Health Lands Trust.                  
  He said that representation on the board would help, and                     
  noted that the status of the lands is dynamic.                               
  Number 505                                                                   
  ED WARREN, KLUKWAN, INC., explained that he has been a                       
  representative on the Chilkat Bald Eagle Preserve Advisory                   
  Board for the past eight years.  He noted that his concerns                  
  were contained in a letter before the committee members in                   
  their bill files.  The advantages of having inholders                        
  participate on the board, he said, included the knowledge                    
  inholders have of the animal life and habitat within the                     
  preserve.  This would contribute to the resource management                  
  perspective of the board, he explained.                                      
  MR. WARREN added that the presence of inholders on the board                 
  would serve as a preventive measure.  Statutes prohibit the                  
  state from exercising eminent domain, he said, and issues of                 
  access and multiple use should have the input of the people                  
  affected by the board's decisions.  If the legislature                       
  missed the opportunity to provide representation on the                      
  board, he suggested that the frustrations of the inholders                   
  would multiply, and that lawsuits were a possibility.  He                    
  displayed a map of the preserve which showed in color-coded                  
  areas those lands held by private inholders.                                 
  Number 576                                                                   
  MR. GRAY explained that the map was prepared by the Division                 
  of Parks and Recreation.                                                     
  Number 585                                                                   
  REPRESENTATIVE BUNDE asked Mr. Warren if there was any known                 
  opposition to increasing the membership of the advisory                      
  MR. WARREN replied that there was none he knew of, but he                    
  had heard opinions that a larger board might become more                     
  Number 598                                                                   
  REPRESENTATIVE JOHN DAVIES referred to the composition of                    
  the board and noted that in statute, only a small portion of                 
  the seats were designated to be filled by representatives of                 
  specific organizations.  He asked why, of the remaining                      
  undesignated seats, the governor could not just appoint an                   
  inholder, rather than statutorily increasing the membership                  
  of the board.                                                                
  MR. WARREN replied that inholders were told when the                         
  preserve was established that they would have representation                 
  on the board, and he did not know why that had not happened                  
  yet.  Rather than hope that the governor might fill a seat                   
  with an inholder, he said HB 260 was important to ensure                     
  that inholders are represented.                                              
  Number 627                                                                   
  REPRESENTATIVE CARNEY referred to a letter that noted the                    
  last appointee to the board had been a representative of                     
  environmental interests.                                                     
  MR. WARREN said he has been frustrated by restrictions on                    
  the board, and that in his opinion, the writer of that                       
  letter, a Mr. Jahnko, shared those frustrations.                             
  Number 654                                                                   
  REPRESENTATIVE MULDER followed up on comments regarding the                  
  composition of the board, and suggested that rather than                     
  adding a seat, the legislature stipulate that one of the                     
  current seats be filled by a representative of the                           
  Number 667                                                                   
  MR. WARREN explained that one of the problems has been that                  
  while one governor might be receptive to appointing an                       
  inholder, there was no guarantee that another governor might                 
  honor the intent.  Including an additional designated seat,                  
  he said, would ensure continuity of inholder representation                  
  on the board.  He asked Representative Mulder if his                         
  comments indicated he would prefer to amend the law to                       
  stipulate a current seat be filled by an inholder.                           
  REPRESENTATIVE MULDER confirmed that this was what he had                    
  been considering.  He noted that the larger the number of                    
  members on a board, the more cumbersome it becomes.                          
  REPRESENTATIVE GREEN said that looking at the statute, it                    
  seemed that most of the members of the 12-member board were                  
  effectively designated.                                                      
  REPRESENTATIVE MULDER pointed out that a number of those                     
  designated spots were ex-officio members.                                    
  VICE CHAIRMAN HUDSON referred to the statute and noted that                  
  of the twelve members, only three are statutorily                            
  designated.  He added that he personally had no problem with                 
  HB 260 and designating an inholder as a member.                              
  REPRESENTATIVE DAVIES MOVED to pass HB 260 and a zero fiscal                 
  note from committee with individual recommendations.                         
  CHAIRMAN WILLIAMS asked if there were any objections.                        
  Hearing none, the MOTION PASSED.                                             
  TAPE 93-42, SIDE B                                                           
  Number 000                                                                   
  CHAIRMAN WILLIAMS announced that the committee's next item                   
  for consideration would be discussion of the legal questions                 
  surrounding appointees to the Board of Game.  The question,                  
  he said, surrounds the constitutionality of the governor's                   
  action in withdrawing the name of one appointee, Jack                        
  Didrickson, before he had been presented to the legislature                  
  for confirmation, and nominating a second person to that                     
  seat, Ernie Polley.                                                          
  CHAIRMAN WILLIAMS summarized the opinion of the legislative                  
  Division of Legal Services, which said the governor's action                 
  was unconstitutional because Mr. Didrickson's name was                       
  considered properly nominated and before the legislature for                 
  confirmation at the time of appointment.  The Department of                  
  Law, representing the administration, he explained, had                      
  presented the Resources Committee with an opinion that Mr.                   
  Didrickson's name was not legally before the legislature                     
  until the name was formally submitted for confirmation.                      
  CHAIRMAN WILLIAMS said the issue presented a possible                        
  manipulation of the board process by the governor, enabling                  
  him to put board members on and pull them off the board for                  
  political purposes.  He told the committee that Jerry                        
  Luckhaupt of Legal Services and Barbara Blasco of the                        
  Department of Law, were present to answer questions on these                 
  legal issues.                                                                
  Number 119                                                                   
  BARBARA BLASCO, ASSISTANT ATTORNEY GENERAL, explained that                   
  she had reviewed prior case law and legal opinions, and said                 
  that the Department of Law letter dated March 26, 1993,                      
  restates prior legal opinions on the governor's authority to                 
  make appointments to boards.  She explained that this was a                  
  primacy issue, and that the executive branch considered Mr.                  
  Didrickson to be an interim appointee.  This was shown by                    
  his name not being submitted to the legislature for                          
  confirmation, and Mr. Polley's name being submitted instead.                 
  MS. BLASCO remarked that the April 5th date may appear                       
  arbitrary or manipulative of the system, having people come                  
  and go off the board depending upon the issues.  In fact,                    
  she explained, that date was arrived at in an effort by the                  
  governor to work with Mr. Didrickson who had expressed a                     
  desire to continue on the board through the last meeting.                    
  At a minimum, she said, it was the opinion of the Department                 
  of Law that Mr. Didrickson's name is not before the                          
  legislature for confirmation, absent the presentment by the                  
  governor that is contemplated and required by statute as a                   
  necessary step in order to get to confirmation.                              
  MS. BLASCO said that Mr. Didrickson could not be confirmed                   
  by the legislature, and that this was not a removal issue                    
  because the step was not taken where his name was presented                  
  for confirmation.  Instead, she claimed Mr. Polley's name                    
  was properly before the committee because that was the name                  
  submitted by the governor.  She said that if Mr. Polley is                   
  confirmed, there may be an issue as to whether Mr.                           
  Didrickson continues on the board until the end of the                       
  legislative session.  By not being confirmed, Mr.                            
  Didrickson's term may continue to the end of the session,                    
  and Mr. Polley's term would commence at that point.                          
  Number 187                                                                   
  REPRESENTATIVE CARNEY found the legal discussion puzzling,                   
  and remarked that clearly Mr. Polley was not as well                         
  qualified to serve on the board as Mr. Didrickson.  He asked                 
  what the governor's reasons could be for pushing to get Mr.                  
  Polley on the board when there was no good reason for making                 
  the switch.  If there were any reason the governor                           
  considered Mr. Didrickson not qualified or fit to serve, he                  
  said, the governor should make that known.                                   
  MS. BLASCO said she was not in a position to respond to that                 
  CHAIRMAN WILLIAMS noted that there were different issues at                  
  stake; one being the legal question and the qualifications                   
  of the appointees being a separate issue.                                    
  Number 208                                                                   
  VICE CHAIRMAN HUDSON told the committee that the reason he                   
  was told for submitting Mr. Polley's name was to give                        
  Southeast Alaska some regional representation to achieve                     
  balance on the board.                                                        
  REPRESENTATIVE DAVIES asked whether the governor had                         
  actually stated that, in writing.                                            
  REPRESENTATIVE HUDSON replied that the governor had not, as                  
  far as he knew, and that this reason was given in a                          
  conversation with the governor.                                              
  Number 216                                                                   
  REPRESENTATIVE DAVIES asked Ms. Blasco to clarify her                        
  remarks regarding the issue of removal versus the governor                   
  merely submitting another name.  He said this raises the                     
  specter that the governor can effectively remove board                       
  members just by putting out another name at any time,                        
  seemingly circumventing the requirement in law that board                    
  members be removed only for cause.                                           
  MS. BLASCO agreed that this question was the crux of the                     
  issue.  The attorney general and Department of Law have                      
  consistently taken the position that prior to the                            
  presentment of the name of an interim appointee to the                       
  legislature, the governor has the authority to submit a                      
  different name for confirmation.  The removal for cause                      
  provisions were not, in their interpretation, triggered                      
  until that presentment is made.                                              
  REPRESENTATIVE DAVIES asked where that distinction was                       
  located in the statutes.                                                     
  MS. BLASCO noted that the pertinent statute was AS                           
  39.05.080, stating the procedure for appointments.  This                     
  section, she said, states that the appointing authority                      
  presents to the legislature within 30 days the names of                      
  persons and within five days the names of persons appointed                  
  during the legislative session.  It has been the Department                  
  of Law's position, she said, that that section makes clear                   
  that an interim appointee is not deemed presented to the                     
  legislature simply by the fact of having been appointed.                     
  The presentment to the legislature was an important step                     
  that needs to be taken, she explained.                                       
  MS. BLASCO said Mr. Polley's name would fit within the                       
  subcategory 1(c) as being appointed subject to confirmation                  
  to fill a position, the term of which would expire before                    
  July 2, following the session of the legislature.                            
  REPRESENTATIVE DAVIES asked if it was correct that Mr.                       
  Didrickson's name had never been presented.                                  
  Number 279                                                                   
  MS. BLASCO replied that this was correct.                                    
  CHAIRMAN WILLIAMS stated that in the interest of time, he                    
  would like to hear from the other attorney after another                     
  five minutes of testimony from Ms. Blasco.                                   
  Number 288                                                                   
  REPRESENTATIVE BUNDE commented that Mr. Didrickson has been                  
  voting and attending meetings as a member of the board, and                  
  suggested this indicated that this constituted presentment                   
  in an informal fashion.  He said that in his opinion, Mr.                    
  Didrickson had served as a de facto member and so the                        
  removal for cause provision applies.                                         
  Number 305                                                                   
  MS. BLASCO noted that there is an important distinction                      
  between an interim appointment and being formally presented                  
  to the legislature for confirmation.  She said a clear step                  
  has to take place; that presentment just doesn't happen                      
  because the person starts going to meetings.  She agreed                     
  that Mr. Didrickson had been attending meetings and had been                 
  voting, and she said they did not want a situation where his                 
  status as a voting member was called into question.  She                     
  referred to AS 39.05.080(4) which related to pending                         
  confirmation of persons appointed, saying persons appointed                  
  pending confirmation or rejection of appointment, exercise                   
  the functions and have the powers and duties prescribed by                   
  law for the appointed positions.                                             
  Number 320                                                                   
  MS. BLASCO added that the statute does contemplate that an                   
  interim appointee has the powers and can go to meetings and                  
  vote, pending confirmation.  She explained that the fact                     
  that this was occurring does not, therefore, mean that the                   
  requirements on presentment and submission of the name are                   
  evaporated.  She said that step still needs to be taken.                     
  She agreed that this kind of situation is one that a                         
  governor would not want to find himself in very often                        
  because it might look as if he were manipulating the system.                 
  The law contemplates the ability of the executive branch to                  
  make adjustments that the governor feels are necessary to                    
  get the best appointee on the board.                                         
  Number 335                                                                   
  REPRESENTATIVE MULDER explained that it was his                              
  interpretation of the situation that Mr. Didrickson's name                   
  was not rightly before the legislature and therefore not                     
  subject to confirmation.                                                     
  CHAIRMAN WILLIAMS announced that the committee would next                    
  hear from the attorney from the Division of Legal Services.                  
  Number 354                                                                   
  SERVICES, LEGISLATIVE AFFAIRS AGENCY, told the committee                     
  that as he saw it, the points the attorney general's office                  
  tried to make deal with the idea that when someone is merely                 
  nominated for a position, they are not actually officially                   
  in that position until confirmed.  He contrasted the federal                 
  system to Alaska's, referring to the recent case of the                      
  federal attorney general, Janet Reno, who did not take                       
  office until she was actually confirmed by the senate.  That                 
  can occur in the federal system because Congress essentially                 
  meets year-round and there does not exist the danger that                    
  the executive branch can't function because an appointee's                   
  confirmation is pending for a period of time.                                
  MR. LUCKHAUPT pointed out that in Alaska, because of the                     
  part-time legislature, there is a problem when appointments                  
  are made during the interim.  The framers of the                             
  Constitution, he said, saw a need for the executive branch                   
  to be able to appoint people to take office upon                             
  appointment.  The Constitution says, he explained, that                      
  appointees have to be able to take office.  This provision                   
  was found in Article III, Section 27, he said.  The logical                  
  follow-up to the governor's and attorney general's position,                 
  he said, would be the idea that once the legislature starts                  
  those people would leave office.                                             
  MR. LUCKHAUPT disagreed with that rationale.  The appointees                 
  take office as soon as they are appointed, he said, and as                   
  soon as the legislature comes into session they have the                     
  authority to confirm people in offices appointed by the                      
  governor.  He referred to AS 39.05.080(4), that said while                   
  the legislature is in session those appointees shall                         
  exercise all the duties of office.  The Constitution also                    
  says, he explained, that the governor can only remove people                 
  for cause as provided by the legislature.  There was no                      
  rationale behind the governor's contention that the governor                 
  can fail to submit a name to the legislature.                                
  MR. LUCKHAUPT said the idea of having interim appointments                   
  and giving those appointees the powers of office, then                       
  having the governor remove them or fail to submit their                      
  names, also is not supported by any clear rationale.                         
  Number 419                                                                   
  MR. LUCKHAUPT said the governor had the power to appoint                     
  people subject to the legislature's decision on how to                       
  remove those people.  In the situation like the one with Mr.                 
  Didrickson, he said, where the governor had refused to                       
  submit a name, theoretically the governor could then appoint                 
  someone the day after the legislature adjourns.  That person                 
  could be appointed repeatedly as an interim appointee                        
  without ever being submitted to the legislature for                          
  approval, following the governor's line of reasoning, he                     
  MR. LUCKHAUPT explained that, using the rationale presented                  
  by the Division of Legal Services, when people take office                   
  they are subject to all the rights and obligations of that                   
  office, as well as being subject to removal according to                     
  procedures established by the legislature.  This would                       
  eliminate the situations where abuse can occur.  The case                    
  law in other states has been established on this subject,                    
  but because Alaska is a relatively young state, it has not                   
  had many circumstances where these laws have come under                      
  challenge.  Typically, such cases have occurred when a state                 
  was around 30 to 40 years old.                                               
  MR. LUCKHAUPT referred to the Alaskan case of Bradner vs.                    
  Hammond, in 1975 or 1976, which dealt with who the                           
  legislature has the authority to confirm.  He said the Legal                 
  Services' division has been exploring what the respective                    
  authorities of the legislature and the governor are under                    
  the Constitution.  This is an area, he added, where other                    
  states that have ruled on the issue have all gone the way                    
  espoused by the Legal Services' division.  This position                     
  holds that if the governor refuses to submit a name, the                     
  legislature can take notice of who has been serving in that                  
  position and confirm that person if they see fit.                            
  MR. LUCKHAUPT said in this case, the governor has no right                   
  to remove that person because there has been no misconduct                   
  in office.                                                                   
  MR. LUCKHAUPT explained the options available in the                         
  situation with Mr. Didrickson and Mr. Polley.  The                           
  legislature could take up Mr. Didrickson's name on the                       
  floor, or choose not to take up his name, and decide not to                  
  confirm him.  In either case, Mr. Didrickson would leave                     
  office as of the last day of the legislative session.                        
  Another option would be to take up Mr. Polley's name, which                  
  could be seen as an implicit rejection of Mr. Didrickson.                    
  In either case, he explained, Mr. Didrickson would serve                     
  until the end of session.                                                    
  MR. LUCKHAUPT said if the committee accedes to the view of                   
  the governor, that he can remove Mr. Didrickson without                      
  cause, and accedes to the view that the governor can refuse                  
  to submit a name to the legislature and therefore stymie the                 
  legislature's constitutional authority to confirm or not to                  
  confirm, the legislature's authority as granted under the                    
  Constitution would be severely diminished.                                   
  Number 473                                                                   
  VICE CHAIRMAN HUDSON remarked that the governor contends                     
  there is only the name of Ernie Polley before the committee,                 
  but said that the question of Mr. Didrickson is still there.                 
  Regarding the legislature's options, he asked whether, if                    
  Mr. Polley's name was not taken up, and was not sent forward                 
  for confirmation, would Mr. Polley then not be eligible to                   
  fill a seat on the board.  He suggested that it would be                     
  best if the governor withdrew the name of Mr. Polley.                        
  Number 500                                                                   
  MR. LUCKHAUPT commented that that solution (withdrawal)                      
  would preserve the arguments of all parties.   Regarding the                 
  question of not taking up Mr. Polley's name for                              
  confirmation, he said it was his opinion that Mr. Polley's                   
  name was not really before the legislature because no                        
  vacancy exists.  He reiterated his position that Mr.                         
  Didrickson was the only one who could rightly be considered                  
  for confirmation.  Therefore, he explained, Mr. Polley's                     
  name could be resubmitted if the legislature failed to                       
  confirm Mr. Didrickson.                                                      
  Number 534                                                                   
  REPRESENTATIVE GREEN asked what the distinction was between                  
  appointments to a board or to a commission, and how the                      
  removal for cause provisions apply.  In the case of Mr.                      
  Didrickson, he said the governor never submitted his name,                   
  but was just filling an interim gap.  He referred to a                       
  similar situation with an appointment to the Alaska Oil and                  
  Gas Conservation Commission, where an interim appointment                    
  was made to fill a gap after a resignation.  The same person                 
  was reintroduced as the appointee subject to confirmation.                   
  Until that action, the appointee had been under the                          
  impression that he was simply an interim appointee who would                 
  be replaced at any time.                                                     
  REPRESENTATIVE GREEN felt this instance implied that interim                 
  members of a board are not subject to confirmation until                     
  their name is submitted for confirmation to the legislature.                 
  Number 545                                                                   
  MR. LUCKHAUPT was not aware of the removal provisions of the                 
  Oil and Gas Commission, and said the issue does not stand on                 
  whether an appointment is made to a board or to a                            
  commission.  Article III, Section 24 of the Constitution                     
  provides that the governor shall appoint members of                          
  regulatory, quasi-judicial and other boards that are at the                  
  head of an agency (such as the Board of Education).  With                    
  those types of boards, he said, the legislature is given the                 
  explicit authority to provide for their removal.  With                       
  perhaps 60% to 70% of the boards, he said, members serve at                  
  the pleasure of the governor and can be removed by the                       
  governor at any time for any reason.                                         
  Number 565                                                                   
  MR. LUCKHAUPT said this situation did not apply to the case                  
  of the Board of Game, whose members can only be removed for                  
  cause.  He explained that the authority of an appointing                     
  authority ends when they perform their "last act" that they                  
  have the authority to perform.  He referred to a case                        
  involving the appointment of a judge, Judge Johnstone, where                 
  a question was raised as to whether he was appointed as of                   
  the date the governor sent the letter, or on the day he                      
  entered upon the duties of the office.  It became important                  
  because it determined whether he had to stand for a vote on                  
  Number 580                                                                   
  MR. LUCKHAUPT said the date of the appointing letter would                   
  have made him subject to the retention vote in the fall, but                 
  the date he assumed his duties would have delayed the                        
  retention vote another year.  The Supreme Court said the                     
  governor's authority ended when he sent the letter making                    
  the appointment.  This, he said, constituted the last act of                 
  the executive appointing authority.                                          
  Number 600                                                                   
  MR. LUCKHAUPT said this case showed that in the case of Mr.                  
  Didrickson, as soon as he received his appointment from the                  
  governor, that was when the governor's authority to remove                   
  ended.  Any authority to remove kicks in subject to the                      
  legislature acting, which is not an executive function.                      
  Number 610                                                                   
  CHAIRMAN WILLIAMS announced that discussion of the                           
  confirmations of Jack Didrickson and Ernie Polley would be                   
  continued to another meeting because only ten minutes                        
  remained in this meeting.                                                    
  REPRESENTATIVE GREEN commented that the case he referred to                  
  earlier, of the Oil and Gas Commission, was more relevant to                 
  the current situation than was the case of the judge cited                   
  by Mr. Luckhaupt.                                                            
  Number 620                                                                   
  REPRESENTATIVE BUNDE referred to the semantics involved,                     
  such as the legislature's concern with the governor's                        
  "manipulation" of the appointing authority, versus the                       
  governor's wishes to make an "adjustment" on the board.  He                  
  suggested that the governor was indeed trying to manipulate                  
  the board process and the legislature ought not be a party                   
  to that.  He said it would set a precedent that in the                       
  future a highly manipulative governor could use to serve his                 
  or her specialized purpose with the board process.                           
  REPRESENTATIVE DAVIES asked Mr. Luckhaupt to clarify how the                 
  process addressed the situation where Mr. Didrickson was                     
  appointed, he attended meetings, and then the governor                       
  failed to send his name to the legislature for confirmation.                 
  If the legislature does not act on that, he asked if Mr.                     
  Didrickson would no longer be on the board at the end of the                 
  legislative session.                                                         
  MR. LUCKHAUPT said that was exactly the case.  As of the                     
  last day of session, an appointee whose name was not acted                   
  on in the affirmative for confirmation would be removed from                 
  office, according to [AS] 39.05.080.  That statute also says                 
  that the person cannot be reappointed to that position by                    
  the governor.                                                                
  REPRESENTATIVE DAVIES noted that the statute says the                        
  governor needs to submit the name of an appointee to the                     
  legislature within 30 days.  He asked what the consequence                   
  would be if the governor failed to do that.                                  
  Number 650                                                                   
  MR. LUCKHAUPT said that gets into the question of whether                    
  the statutory provision overrides the constitutional                         
  provision that requires the legislature to confirm                           
  appointees.  He suggested a situation where a governor might                 
  refuse to submit the names of all appointees, and                            
  potentially they would all be removed from office at the end                 
  of session.  By operation of law the legislature would have                  
  adjourned without those people being in office, so they                      
  could be reappointed the day after session ended.                            
  Number 660                                                                   
  MR. LUCKHAUPT explained that situation could not exist if                    
  the legislature has the authority to take up a name that the                 
  governor has refused to submit to the legislature and the                    
  legislature recognizes that person as actually serving as a                  
  member of the board.  Eight other states have had the same                   
  problem, he added, and all reached conclusions such as the                   
  one he advocated.  That solution, he said, would reduce the                  
  potential for manipulation and abuse.                                        
  REPRESENTATIVE DAVID FINKELSTEIN asked Mr. Luckhaupt how                     
  this situation could be reconciled with the case of the                      
  Alaska Public Utilities Commission (APUC), when an appointee                 
  was serving in the position and the governor changed his                     
  mind, there was no cause, and the legislature confirmed the                  
  new appointee named to replace the first one.                                
  Number 673                                                                   
  MR. LUCKHAUPT explained that at that confirmation hearing                    
  two years ago, Don Schroer, the second appointee, was taken                  
  up first and his name was rejected.  Peter Sokolov, who had                  
  been initially appointed by Governor Cowper, had been                        
  reappointed at the end of his term, in October of 1990, by                   
  outgoing Governor Cowper.  Mr. Luckhaupt explained that                      
  after Mr. Schroer was rejected, the confirmation session was                 
  adjourned, and started again two days later.  Mr. Sokolov's                  
  name was taken up then.                                                      
  REPRESENTATIVE FINKELSTEIN noted that the replacement's name                 
  was what was taken up and eventually approved by the                         
  legislature.  He asked why the legislature could not do that                 
  MR. LUCKHAUPT said it had been his opinion then that Mr.                     
  Schroer's name was not rightly before the legislature.  He                   
  added that after taking up and rejecting Mr. Schroer, then                   
  voting to reject Mr. Sokolov, there was reconsideration of                   
  the vote to reject Mr. Schroer, and he was then confirmed.                   
  REPRESENTATIVE FINKELSTEIN asked Mr. Luckhaupt if, as he saw                 
  it, the key point was the moment the governor made the                       
  appointment in making that name subject to confirmation by                   
  the legislature.  In contrast, he asked if it was correct                    
  that the attorney general's office saw that key point as the                 
  time the name is submitted by the governor to the                            
  TAPE 93-43, SIDE A                                                           
  Number 000                                                                   
  MR. LUCKHAUPT explained that the legislature specifically                    
  decided that members of certain boards would serve at the                    
  pleasure of the governor while other boards were intended to                 
  have members removed only for certain reasons.  The                          
  rationale for those boards where members serve at the                        
  pleasure of the governor, he added, is that the governor                     
  should be able to reconsider his decisions regarding people                  
  he appointed during the interim, in case a mistake was made.                 
  Number 032                                                                   
  MR. LUCKHAUPT said the confirmation by the legislature has                   
  nothing to do with the appointing authority of the                           
  executive.  The legislature determined that certain boards                   
  and commissions could not have members removed arbitrarily                   
  by the governor, and that there should be continuity and                     
  steadiness in those boards so board members would not have                   
  to worry that their decisions might offend the governor.  He                 
  reiterated that 60% to 70% of the boards and commissions are                 
  established so members serve at the pleasure of the                          
  governor.  The Game Board, he said, was one of those deemed                  
  important enough to assure continuity, so the governor was                   
  not given the authority with that board to remove members                    
  unless there was cause shown in accordance with statute.                     
  Number 066                                                                   
  REPRESENTATIVE CARNEY referred to [AS] 39.05.080, and asked                  
  Ms. Blasco to respond to the section which requires that the                 
  appointing authority shall, within 30 days of the convening                  
  of the legislature in regular session, present the names for                 
  confirmation.  Under (b) it says, "the names of the                          
  following people: ...persons appointed subject to                            
  confirmation to fill an existing position or membership                      
  vacancy."  He said this made it clear to him that when a                     
  person is appointed, the governor is supposed to give the                    
  name to the legislature for confirmation.  He interpreted                    
  the section to mean that if the governor failed to present                   
  the name, the legislature should go ahead and act on                         
  confirmation without that step.                                              
  REPRESENTATIVE CARNEY added that the statute seemed to make                  
  it clear that the legislature should go forward with                         
  confirming Mr. Didrickson.                                                   
  Number 097                                                                   
  MS. BLASCO explained that it was the position of the                         
  Department of Law and the attorney general that the governor                 
  had complied with subsection 1, by submitting the name of                    
  Mr. Polley, and that Mr. Polley is, therefore, subject to                    
  confirmation as indicated in subsection 3.  She said she                     
  realized it was Mr. Luckhaupt's position that this was an                    
  anticipatory appointment and that Mr. Didrickson's                           
  appointment was the one that should stand.  She added that                   
  it was the department's position that absent the submission                  
  of Mr. Didrickson's name, his appointment would expire and                   
  Mr. Polley's name was properly submitted under subsection                    
  REPRESENTATIVE CARNEY said it seemed the governor had                        
  appointed two people to the same position at the same time.                  
  Number 133                                                                   
  MS. BLASCO pointed out the April 5, 1993 date and said this                  
  makes the situation "a little odd."  Subsection (c), she                     
  said, contemplates two persons being appointed to a                          
  position, because when positions are about to become vacant,                 
  there is both an appointee who will assume that position,                    
  and an appointee who is already in that particular seat.                     
  There is a provision for that expiration date, with a one-                   
  day overlap.                                                                 
  REPRESENTATIVE CARNEY suggested that at the next meeting of                  
  the Resources Committee, with a full quorum of the committee                 
  present, Mr. Didrickson's name be moved for advancement.                     
  Number 144                                                                   
  VICE CHAIRMAN HUDSON noted to Ms. Blasco that it was his                     
  understanding that if the governor leaves Mr. Polley's name                  
  before the legislature, and for whatever reason, the                         
  legislature has to take up Mr. Didrickson and not Mr.                        
  Polley, then Mr. Polley is "out of the ballpark" in terms of                 
  being appointed to a position in the future.  For a name to                  
  be submitted and not taken up, was tantamount to rejection,                  
  he said was his understanding.  He added that it seemed the                  
  governor's best recourse would be to remove Mr. Polley's                     
  name and not submit Mr. Didrickson's name.                                   
  VICE CHAIR HUDSON believed this would force the legislature                  
  to bring it up on their own volition and then the governor                   
  could contest it.  The position would be open because Mr.                    
  Didrickson would be off the board at the end of the 1993                     
  Number 161                                                                   
  CHAIRMAN WILLIAMS announced the subject of the Board of Game                 
  appointments would be taken up again at the next meeting of                  
  the House Resources Committee, and said the attorneys from                   
  the Department of Law and the Division of Legal Services                     
  would be invited back to answer questions.  He also                          
  announced that a statewide teleconference meeting was                        
  planned to hear public testimony on HB 238, on Saturday,                     
  April 17, from 10:00 a.m. to 2:00 p.m.  He added that the                    
  committee would not meet on April 9 or April 12, and the                     
  next meeting would be held on April 14, 1993 at 8:00 a.m.                    
  There being no further business to come before the House                     
  Resources Committee, Chairman Williams adjourned the meeting                 
  at 9:55 a.m.                                                                 

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