Legislature(2001 - 2002)
03/13/2001 03:35 PM Senate STA
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ALASKA STATE LEGISLATURE
SENATE STATE AFFAIRS COMMITTEE
March 13, 2001
3:35 p.m.
MEMBERS PRESENT
Senator Gene Therriault, Chair
Senator Randy Phillips, Vice Chair
Senator Drue Pearce
Senator Bettye Davis
MEMBERS ABSENT
Senator Rick Halford
COMMITTEE CALENDAR
SENATE BILL NO. 92
"An Act relating to removal of members of the board of trustees of
the Alaska Permanent Fund Corporation; and providing for an
effective date."
MOVED SB 92 OUT OF COMMITTEE
SENATE BILL NO. 90
"An Act establishing the Office of Citizenship Assistance; and
providing for an effective date."
HEARD AND HELD
HOUSE CONCURRENT RESOLUTION NO. 6
Requesting the Governor to declare March 18 - 24, 2001, to be
Inhalants and Poisons Awareness Week.
SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
SB 90 - No previous action recorded.
SB 92 - See State Affairs minutes dated 3/01/01.
WITNESS REGISTER
Clark Gruening
Chairman of the Board of Trustees
Alaska Permanent Fund Corporation
217 Second Street Suite 604
Juneau, AK 99801
POSITION STATEMENT: Answered questions on SB 92.
Jim Baldwin
Assistant Attorney General
Department of Law (DoL)
P.O. Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Testified on SB 92.
Jessie R. Pelayo
9023 Long Run Drive
Juneau, AK 99801
POSITION STATEMENT: Supports SB 90.
Mario K. Lim
3496 Meander Way
Juneau, AK 99801
POSITION STATEMENT: Supports SB 90.
Mara Kimmel
Immigration Attorney
700 Gold Street #3
Juneau, AK 99801
POSITION STATEMENT: Supports SB 90.
Robin Bruner
Program Director
Catholic Social Services
No address provided
POSITION STATEMENT: Supports SB 90.
Andre McLeod
No address provided
POSITION STATEMENT: Testified against SB 90.
ACTION NARRATIVE
TAPE 01-12, SIDE A
Number 001
CHAIRMAN GENE THERRIAULT called the Senate State Affairs Committee
meeting to order at 3:35 p.m. Present were Senators Phillips, Davis
and Chairman Therriault.
HCR 6 was scheduled to be heard today, pending referral, but it
didn't leave the House so today's meeting will be recessed rather
than adjourned and the bill will be heard on March 15, 2001.
The first order of business was SB 92.
SB 92-REMOVAL OF MEMBERS OF THE PF BOARD
CHAIRMAN THERRIAULT asked Clark Gruening whether anyone from the
Permanent Fund Trustee Board was planning to speak to the memo from
Mr. Lorensen, attorney with Simpson Tillinghast Sorensen Lorensen &
Longenbaugh.
CLARK GRUENING, Chairman of the Alaska Permanent Fund Corporation's
(APFC) Board of Trustees, said no, the memo speaks for itself and
should answer questions raised at the last meeting.
CHAIRMAN THERRIAULT said the memo did a concise job of covering the
issues raised at the previous meeting.
JIM BALDWIN, Assistant Attorney General, Governmental Affairs
Section, said SB 92 is not a new issue and that, based on the text
of the Alaska Constitution, it raises legal issues. According to
the Alaska Constitution, the legislature may, by law, provide for
removal by cause for boards or commissions that are at the head of
executive agencies or are quasi-regulatory or are quasi-judicial.
Since it is specifically stated there, it shouldn't be implicated
anywhere else in the legislative or executive article. The APFC
isn't quasi-regulatory or judicial, it isn't at the head of the
executive branch agency. The argument focuses on separation of
powers.
SENATOR PEARCE joined the meeting.
MR. BALDWIN said, as discussed at the previous meeting, Bradner v.
Hammond is the only case that touches on appointment power but it
isn't "directly on point". The argument was put forth before the
last legislature and he thought the constitutional amendment was
evidence that it was accepted. This is a legal position that the
office has taken and there is evidence of this in other opinions
from prior administrations.
CHAIRMAN THERRIAULT said that he read past testimony in addition to
Bradner v. Hammond and he agrees that case isn't directly on point
because it dealt with legislative confirmation. The discussion last
year was centered around there being a continuum of legislative
interference in the confirmation process. He can understand the
court's ruling because the legislature could insert itself in the
process to a greater degree than having the removal for cause
language, which would still be an administrative action taken
without legislative interaction. He asked Mr. Baldwin to discuss
the differences and degree from the viewpoint of the Department of
Law.
He also asked for a discussion on the Alaska State Pension
Investment (ASPI) Board which has similarities and is not quasi-
regulatory or quasi-judicial but has a removal for cause clause
that hasn't been litigated. He asked whether the position taken by
the department when that language was put into statute was that it
was likely to be suspect if there was a challenge on constitutional
grounds.
Number 519
MR. BALDWIN said that Alaska has, by intent, a strong executive
branch and the power of appointment is solely an executive power.
The Alaska Constitution gives the legislative branch no role,
through law making power, in deciding how appointments are made,
their duration, and removal. In pre-statehood days, there was
government by commission, which had the effect of blunting the
power of the federal government, thereby giving more power to local
government. Constitutional framers believed there needed to be a
change from this arrangement and wanted a strong, centralized,
government with boards and commissions under the appointed power of
the governor. There would be a check on the appointment power for
quasi-judicial, quasi-regulatory or heads of principle departments
by providing confirmation hearings. The removal provision, which
places the appointee beyond the reach of the removal at pleasure
of the governor applies to everything else in the executive branch.
Property and liberty rights are another issue because persons with
a salary or a property right in an office can't, under the 5th
amendment, have that taken away arbitrarily; there must be some due
process.
As a matter of degree, he thinks it's a skilled legal argument but
questions of degree don't always hold sway in a constitutional
argument. It is not cut and dried and is, in fact, a point of
debate among lawyers that has not yet been tested in an Alaskan
court.
The argument was made on the ASPI Board, and it subsequently became
law against the advice from the Department of Law. There is
speculation as to why this happened, but it isn't the only example
of a law being enacted even though the constitutionality is
arguable. He thought he could probably find several examples in
Alaska statute where removal for cause has been applied to a non-
quasi-judicial or regulatory board or a board that is not that of
an executive agency. The fact that they are there doesn't make them
more constitutional.
MR. BALDWIN said the constitutional amendment passed by the
legislature last session is a significant piece of legislative
history for anyone analyzing the issue. "It could be argued that
the intent was that they supported that construction." However,
trying to prove legislative intent is difficult, at best.
CHAIRMAN THERRIAULT said he didn't mean to imply constitutionality
just because something similar is in statute. This hasn't, as yet,
been tested in court and since there is no similar case with this
language it is not known how the court would rule.
MR. BALDWIN agreed and said it's an open question in Alaska but DOL
believes its argument is contextually supported by the
Constitution. If the committee passes SB 92, he noted he had
several suggestions to make it a better piece of legislation.
CHAIRMAN THERRIAULT said he knew Mr. Baldwin was concerned about a
definition for "just cause" but there was no definition in that
section of statute addressing the ASPI Board and there is "no need
for a definition unless you want to stray from the ordinary court
interpretation of the phrase."
MR. BALDWIN said you'd be relying on the common law interpretation
for the phrase which means the definition is left to judges,
attorneys and established precedent. Determining the meaning of
"just cause" isn't easy because a citizen might be interpreting one
event and the law might be interpreting another event and both are
using the term "just cause". Another statute where cause is more
specifically stated is AS 16.05 for the Board of Fish and Game.
He pointed out a weakness in the legislation is the absence of
provision for due process. The language appears to say that a
letter is sent stating cause and that's the end of it. However,
when someone is removed in that manner they might have the right to
a due process hearing, which may be trial like with discovery and
an independent third party to make the decision about removal. This
can be a very long and complicated process. Removing a board member
doesn't just happen, there is a process that must be followed.
CHAIRMAN THERRIAULT said that administrative appeals follow the
process whereby a division director makes a decision which is
reviewed up the chain of authority. If someone is removed for cause
it's the Governor, who is at the top of the authority chain, making
the decision. Other than asking for a reconsideration, the only
option is to take the matter to the court for a decision. Since the
process is trial like anyway, why not just take it through the
court system?
MR. BALDWIN said that, under this legislation, the decision itself
would be the Governor's and it's then established that there must
be some sort of due process that leads to that decision. That
process may be a simple hearing where the individual can come in
and try to clear their reputation or something more involved where
the individual can come in and there's a record created where the
reasons are put on the record and the individual has a chance to
rebut those reasons and try to prove their case. Going directly to
court is essentially delegating the decision to the judicial branch
and the court probably would not allow this, saying that
administrative remedies haven't been exhausted. This most probably
means that the due process hearings haven't been held.
Reading the statute, it appears that the Governor simply writes a
letter. If that is the intent of SB 92, then it should be clear on
the record that there is no more due process being accorded than
just the letter. This would be less than the removal right accorded
to a member of the Fish and Game Board or a member of the
Regulatory Commission for Alaska both of which are boards with
salary, property rights and due process rights.
CHAIRMAN THERRIAULT said that in going in that direction, the level
of legislative interference with the Governor's process is
heightened so the possibility that it would be ruled
unconstitutional is also heightened.
MR. BALDWIN said Chairman Therriault hit upon the tension between
the legal issues at play. The for cause provision intrudes upon the
appointment power but the for cause provision that's not spelled
out in how it's exercised produces legal problems on the other side
of the argument.
He wanted it clearly understood that removal for cause isn't as
simple as writing a letter. There must be due process in removal
for cause.
CHAIRMAN THERRIAULT asked for questions from committee members and
members of the public. There were none.
Committee members had no amendments. The bill has a zero fiscal
note. He asked for the will of the committee.
SENATOR PHILLIPS moved SB 92 and zero fiscal note from committee
with individual recommendations. There were no objections.
Number 1405
SB 90-OFFICE OF CITIZENSHIP ASSISTANCE
CHAIRMAN THERRIAULT asked Senator Kelly to introduce the bill and
noted that it was his intent to hear public testimony and take up
final action on the bill at a later meeting.
SENATOR PETE KELLY, sponsor of SB 90, said this bill creates a
director position under the Office of the Ombudsman to act as a
liaison between new citizens and those studying to become citizens.
The many state and private services available to citizens and
citizen candidates may be inaccessible due to language, social and
cultural barriers. The Office of Citizenship Assistance would
respectfully help these individuals while remaining sensitive to
their various customs and cultures.
CHAIRMAN THERRIAULT asked whether the liaison would function under
the ombudsman in an ombudsman capacity.
SENATOR KELLY said the director would be a liaison between the
ombudsman and the individuals so there is someone to go to in the
ombudsman's office that will be more sensitive to cultural and
language difficulties.
SENATOR PHILLIPS asked whether there are other states with this
type of division.
SENATOR KELLY said no there aren't.
SENATOR PHILLIPS said he has difficulty with this bill because both
of his parents are immigrants.
SENATOR PEARCE thinks the idea is good but wonders whether this
helps interface more with state and local services or federal ones.
SENATOR KELLY said it will interface more with state services. He
reassured Senator Pearce that this position will not help in the
naturalization process, rather it will provide help in locating
state and local services.
JESSIE R. PELAYO, Filipino Community leader, gave lengthy and heart
felt testimony in support of SB 90. The full testimony is available
in the bill record.
MR. PELAYO, said that in the fall of 1989, there was a statewide
meeting of Filipino organizations held in Anchorage to discuss
solutions to the difficulties Filipino citizen candidates
encounter. He found that the difficulties he and his family and
friends experienced in Juneau were common in large and small
communities across the state.
Until the City and Borough of Juneau passed a resolution requesting
a permanent immigration officer, immigration problems were
commonplace, expensive and lengthy.
He went on to outline discriminatory employment practices,
difficulty understanding legal issues and housing, medical and
educational problems.
In closing, Mr. Pelayo urged committee members to support SB 90 so
that naturalized citizens would have a place to turn when faced
with injustices resulting from a difference in cultures.
MARIO D. LIR, Pastor of the Word of Life Christian Center,
testified in support of SB 90. As a pastor, he has repeatedly seen
the problems naturalized citizens have assimilating with a
different culture. The State of Alaska has never before addressed
these needs and it is past time for them to do so. Many of these
individuals are productive state employees so it is the state's
responsibility to help them with difficulties associated with
changing countries and cultures.
PASTOR LIR also outlined specific immigration, legal, medical and
language problems faced by Filipinos and other immigrants and said
there needs to be a place these individuals can go and get help
dealing with the shock experienced when moving into a different
culture.
He is proud to be an American citizen but is concerned about the
new immigrant population. He closed saying, "You need to walk a
mile in my shoes, there are many stories to tell."
SENATOR PHILLIPS said both his parents were immigrants, and he's
dealt with discrimination as well.
MARA KIMMEL is an immigration attorney who has worked in both
private practice and, more recently, for a statewide non-profit
social service agency providing immigration services. She is also
the co-chair of the Immigration Law Section of the Alaska Bar
Association.
She applauded the efforts of Senators Kelly, Austerman, Ellis and
Taylor in putting forth SB 90. The problems listed by Mr. Pelayo
and Pastor Lim are those facing her clients every day and she has
no place to refer them. SB 90 recognizes the valuable contributions
made by Alaska immigrants and acknowledges the fact that they have
difficulties in obtaining services that are taken for granted by
others who aren't faced with the same language and cultural
barriers.
Immigrants are frequently overlooked even though they are an
integral part of the Alaskan community. Creating the Office of
Citizenship reflects an important public policy which is
recognition of Alaska as a melting pot and welcoming these
newcomers to our state and nation. There is no other agency that
offers the services outlined in this bill. Many individuals will
benefit from the services The Office of Citizenship will provide.
ROBIN BRUNER, Program Director of Immigration and Refugee Services
Program at Catholic Social Services in Anchorage, also applauds the
efforts of the sponsors. The services are desperately needed by the
people her office represents. They are the only agency and
organization in Alaska providing legal services to immigrants and
refugees. There are six staff members in her office and they worked
with 2,700 people in fiscal year 2000.
Alaska is a very diverse state with 1,000 Salvadorans on Kodiak
Island, 500 Russians in Delta Junction and large communities of
Filipinos living in Southeast Alaska, Kodiak Island, Dutch Harbor
and the Interior.
Naturalization clinics held state wide have helped between 100 and
200 people become citizens each year. Although legal services are
provided, other needs mentioned by Mr. Pelayo and Pastor Lim aren't
addressed because there isn't anyplace to refer them. There is a
great need for an office where individuals could go and get the
referral and information services they desperately need.
She asked legislators to call her at (907) 276-5590 if there was
any way she could help them move the legislation forward.
Number 2077
ANDRE MCLEOD, testifying as a private citizen, called SB 90 "one of
the most harebrained schemes I have ever seen, to the tune of
$310,000 dollars." She thought the money could be better spent
elsewhere and that the two testifiers from Juneau appeared to have
adjusted to life in the United States very well. The challenges
they have met are the same as those faced by every one else.
Interfacing with government is always problematic. If there is
difficulty with Immigration & Naturalization Service (INS) forms
then those individuals should deal directly with INS. For problems
with discrimination, AS 18.80, The Human Rights Commission, is the
place to go. Attorney Kimmel should send individuals experiencing
difficulties of these types to either INS or the Human Rights
Commission. If there's any other type of difficulty with the state
government, there's always AS 24.55, the ombudsman's office. She
is sure there are better places to spend $310,000. "If things
aren't going right then fix it but don't build another empire."
CHAIRMAN THERRIAULT asked for a phone number in case the bill
sponsors wanted to contact her directly.
C
MS. MLEOD said "I've already spoken to the sponsors of the bill
and as I've spoken to them, I've tried to see where need for this
legislation comes from and I was told that I really didn't need to
know that." However, if committee members want to talk to her the
number is 561-8595.
CHAIRMAN THERRIAULT asked for other testimony. There was none.
The bill was held in committee so that Chairman Therriault could
discuss several matters with Senator Kelly.
The meeting was recessed until 3:30 p.m., Thursday, March 15, 2001.
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