Legislature(1993 - 1994)
04/07/1993 08:00 AM RES
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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 RECOMMENDATION Confirmation: Appointees to the Board of Game (Didrickson, Polley) COMMITTEE DISCUSSION ONLY, NO ACTION TAKEN (* first public hearing) WITNESS REGISTER W. Scott Ogan HC04-9248 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 SHORT TITLE: CHILKAT BALD EAGLE PRESERVE ADV. COUNCIL 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, DAVIES 04/07/93 1076 (H) DP: FINKELSTEIN, MULDER,BUNDE, WILLIAMS 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, 1993. Number 050 W. SCOTT OGAN, APPOINTEE TO THE BIG GAME COMMERCIAL SERVICES 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 Alaska. 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 Library.) 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 industry. 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 Alaska. 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 DAVE GRAY, LEGISLATIVE AIDE TO REPRESENTATIVE JERRY MACKIE, 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 BILL GARRY, REGIONAL MANAGER, SOUTHEAST AREA, DIVISION OF PARKS AND OUTDOOR RECREATION, DEPARTMENT OF NATURAL 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 board. MR. WARREN replied that there was none he knew of, but he had heard opinions that a larger board might become more cumbersome. 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 inholders. 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 remark. 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 JERRY LUCKHAUPT, ATTORNEY WITH THE DIVISION OF LEGAL 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 said. 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 retention. 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 now. 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 legislature. 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 (c). 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 session. Number 161 ANNOUNCEMENT 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. ADJOURNMENT There being no further business to come before the House Resources Committee, Chairman Williams adjourned the meeting at 9:55 a.m.