Legislature(1993 - 1994)
04/07/1993 08:00 AM House RES
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ 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
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.
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