03/05/2012 01:30 PM Senate JUDICIARY

                    HB   6-REMOVING A REGENT                                                                                
                                                                                                                                
1:34:02 PM                                                                                                                    
CHAIR FRENCH announced  the consideration of HB 6.  He noted that                                                               
the committee did  not have a quorum and would  take no action on                                                               
the legislation.                                                                                                                
                                                                                                                                
1:34:33 PM                                                                                                                    
REPRESENTATIVE MAX  GRUENBERG, sponsor of  HB 6, stated  that the                                                               
bill  is in  response to  an incident  several years  in which  a                                                               
member  of the  University of  Alaska (UA)  Board of  Regents was                                                               
indicted and subsequently convicted of  a felony. The board found                                                               
that  other than  the  impeachment  process, it  did  not have  a                                                               
procedure to remove or suspend  the member. This is potentially a                                                               
serious problem if  the Board of Regents needs a  full quorum, he                                                               
said.                                                                                                                           
                                                                                                                                
REPRESENTATIVE  GRUENBERG explained  that Section  1 pertains  to                                                               
legislative findings and purposes  and indicates why establishing                                                               
this procedure  is important and  also constitutional.  Section 2                                                               
adds a new section .155 to  AS 14.40 laying out the procedure for                                                               
the  governor  to  either  suspend  or remove  a  regent.  It  is                                                               
patterned  after the  statutory  removal  procedures for  certain                                                               
other boards. Section 3 -  the applicability section - stipulates                                                               
that the bill  applies to all conduct that occurs  before, on, or                                                               
after the effective date.                                                                                                       
                                                                                                                                
1:41:32 PM                                                                                                                    
CHAIR  FRENCH  asked  the  sponsor to  summarize  the  two  legal                                                               
memorandums  in the  bill packet.  One was  dated April  17, 2007                                                               
from Jean  Mischel, Legislative Counsel  with Legal  and Research                                                               
Services,  and  the  other  was   dated  February  2,  2007  from                                                               
Assistant Attorney  General Michael Barnhill with  the Department                                                               
of Law (DOL).                                                                                                                   
                                                                                                                                
REPRESENTATIVE GRUENBERG reviewed the  Department of Law response                                                               
to  the question  of whether  the governor  has the  authority to                                                               
remove a  member of the  UA Board  of Regents without  cause. Mr.                                                               
Barnhill's  answer  was  no.  He  acknowledged  that  legislative                                                               
counsel  concluded that  regents  serve at  the  pleasure of  the                                                               
governor  and may  be  removed  at any  time,  and University  of                                                               
Alaska  counsel  concluded that  a  regent  may be  removed  only                                                               
through impeachment by the Legislature.                                                                                         
                                                                                                                                
CHAIR  FRENCH  asked  the  sponsor  if he  crafted  the  bill  in                                                               
response  to  the idea  that  there  had  to  be good  cause  for                                                               
removing a regent.                                                                                                              
                                                                                                                                
REPRESENTATIVE GRUENBERG replied he absolutely did.                                                                             
                                                                                                                                
He  reviewed  the Legislative  Legal  Services'  response to  the                                                               
question.  Ms. Mischel's  answer was  yes; the  governor has  the                                                               
general authority to remove a  regent absent cause. She cited the                                                               
constitutional  authority under  Article VII,  sec 3  and Article                                                               
III, sec. 26.                                                                                                                   
                                                                                                                                
REPRESENTATIVE  GRUENBERG offered  his opinion  that even  if the                                                               
Board  of Regents  were to  bring a  constitutional challenge,  a                                                               
judge would likely  favor the process that  the bill establishes,                                                               
particularly  since the  board has  for years  failed to  act. He                                                               
asked the  record to  reflect that  the House  Judiciary Standing                                                               
Committee  received no  response when  it informed  the Board  of                                                               
Regents  that it  was considering  this kind  of legislation.  He                                                               
maintained that  HB 6  will avert a  potential crisis  and ensure                                                               
that the board can function at full strength.                                                                                   
                                                                                                                                
1:46:57 PM                                                                                                                    
CHAIR FRENCH asked  if there was opposition in the  House to this                                                               
particular bill.                                                                                                                
                                                                                                                                
REPRESENTATIVE GRUENBERG  responded that HB 6  passed unanimously                                                               
in the House.                                                                                                                   
                                                                                                                                
1:48:47 PM                                                                                                                    
FULLER A.  COWELL, Regent,  UA Board  of Regents,  Anchorage, AK,                                                               
testified  in  opposition  to  HB 6.  He  said  the  constitution                                                               
provides impeachment  as the  method for  removing a  regent from                                                               
office and that  has served the university well in  its near 100-                                                               
year  history. In  fact, there  has been  just one  case where  a                                                               
regent did not  resign immediately when there  was a controversy.                                                               
In  that  instance, the  regent's  attorney  advised him  not  to                                                               
resign,  because  it  might  indicate guilt.  The  board  has  11                                                               
members so even  in that case it was able  to operate effectively                                                               
and govern the university.                                                                                                      
                                                                                                                                
MR.  COWELL informed  the committee  that  the board  was in  the                                                               
process  of  changing  its   bylaws  to  facilitate  recommending                                                               
impeachment  when  a  majority  of the  members  believes  it  is                                                               
appropriate. He noted  that although the board opposes  HB 6, the                                                               
university  discussed with  the  sponsor several  changes to  the                                                               
bill if it does move forward, he said.                                                                                          
                                                                                                                                
1:51:34 PM                                                                                                                    
CHRIS  CHRISTENSON, Associate  Vice  President, State  Relations,                                                               
University of Alaska  (UAA), said he was prepared  to discuss the                                                               
changes the  Board of  Regents propose if  the committee  were to                                                               
decide to move the bill forward.                                                                                                
                                                                                                                                
CHAIR  FRENCH  questioned  the   efficiency  of  relying  on  the                                                               
impeachment  process to  remove a  regent.  If an  issue came  up                                                               
during the  Interim, the  Legislature would  either have  to call                                                               
itself into  special session for  an impeachment process  or wait                                                               
until the next 90-day Session to take up the matter.                                                                            
                                                                                                                                
MR.  CHRISTENSON replied  the board  believes  that the  founders                                                               
intended the procedure  to be impeachment only.  Giving the power                                                               
to anyone else  potentially politicizes the Board  of Regents and                                                               
the university  in the  process. He  reiterated that  the current                                                               
process  works well  and the  board's  ability to  govern is  not                                                               
affected if one member is  missing. He highlighted that after the                                                               
controversy arose  in 2007, that  regent did not  attend meetings                                                               
or vote. He  did not resign because his attorney  advised that it                                                               
would look like  an admission of guilt. That was  to no damage to                                                               
the university, he stated.                                                                                                      
                                                                                                                                
CHAIR FRENCH  offered his  perspective that  it was  damaging and                                                               
embarrassing to the university to  have a regent under indictment                                                               
for embezzlement among other things.  The issue dragged on a long                                                               
time and he was identified as a regent in every news report.                                                                    
                                                                                                                                
MR. CHRISTENSON responded  that it was no  more embarrassing than                                                               
when  so   many  legislators   were  indicted.   The  Legislature                                                               
continued to  function and  it, too, had  the ability  to impeach                                                               
those members.                                                                                                                  
                                                                                                                                
1:55:43 PM                                                                                                                    
MR.  CHRISTENSON reviewed  the provisions  in HB  6 that  were of                                                               
particular concern  to the Board  of Regents. First,  the regents                                                               
request the removal  of Section 1. It suggests the  board has the                                                               
power to do  something it has not  done and that is  why the bill                                                               
is  necessary.  AS  14.40.170(b)(1)  is  cited  as  granting  the                                                               
authority,  but the  language  is very  vague.  What the  statute                                                               
essentially does is give the  board the authority to regulate its                                                               
internal operation as  a board, which is very  different from the                                                               
explicit  authority  to  remove a  constitutional  officer.  This                                                               
would override the will of  the governor who appointed the regent                                                               
and the will of the legislature that confirmed him or her.                                                                      
                                                                                                                                
CHAIR FRENCH  asked if  he would draw  a distinction  between the                                                               
words "remove" and "suspend" or if both were problematic.                                                                       
                                                                                                                                
MR.  CHRISTENSON replied  both  are problematic  because in  both                                                               
instances  someone is  prevented  from doing  the  job they  were                                                               
appointed  and  confirmed  to  do.   In  essence,  the  board  is                                                               
substituting  its  own  political judgment  without  an  explicit                                                               
grant of statutory or constitutional authority.                                                                                 
                                                                                                                                
The  second   concern  relates  to   Section  2.  The   new  Sec.                                                               
14.40.155(a) lays out  the conditions under which  a governor may                                                               
suspend a regent, and all but  the provision in paragraph (4) are                                                               
based  on proceedings  by an  independent  entity. Paragraph  (4)                                                               
does  not belong  because  it involves  a  verified complaint  of                                                               
malfeasance or  nonfeasance in office under  consideration by the                                                               
governor. In this case the  governor could immediately remove the                                                               
regent without waiting  for another entity to act so  there is no                                                               
reason to suspend.  He continued that the provision  is even more                                                               
problematic because of its subjectivity  and the fact that it may                                                               
or  may  not  be  politically   motivated.  The  regents  suggest                                                               
establishing  a   process  that   would  be  more   difficult  to                                                               
manipulate  politically,  and  specifically  request  removal  of                                                               
paragraph (4).                                                                                                                  
                                                                                                                                
Finally, the  regents request that  the language in the  new Sec.                                                               
14.40.155(a)(5) be tightened  to apply to a  formal allegation or                                                               
charge by a professional or  occupational licensing body alleging                                                               
or finding a violation of relevant licensing statutes.                                                                          
                                                                                                                                
2:00:49 PM                                                                                                                    
SENATOR PASKVAN joined the committee.                                                                                           
                                                                                                                                
CHAIR FRENCH  asked the sponsor  if he  would like to  comment on                                                               
the testimony from Mr. Cowell and Mr. Christensen.                                                                              
                                                                                                                                
2:01:23 PM                                                                                                                    
REPRESENTATIVE GRUENBERG offered to  work with Mr. Christenson to                                                               
resolve the problems. He then  suggested inserting a statement in                                                               
the  bill  that   these  procedures  were  in   addition  to  the                                                               
impeachment procedure.                                                                                                          
                                                                                                                                
CHAIR  FRENCH  responded  that would  be  redundant  because  the                                                               
impeachment proceedings are in the  constitution and nobody would                                                               
presuppose that they had been done away with.                                                                                   
                                                                                                                                
REPRESENTATIVE GRUENBERG  said he did  not agree with  the second                                                               
suggestion to  remove Sec.  14.40.155(a)(4) regarding  a verified                                                               
complaint.                                                                                                                      
                                                                                                                                
CHAIR  FRENCH  asked  if  an  email  to  the  governor  would  be                                                               
sufficient to be a verified complaint.                                                                                          
                                                                                                                                
REPRESENTATIVE  GRUENBERG said  no it  would be  a formal,  sworn                                                               
document.                                                                                                                       
                                                                                                                                
CHAIR FRENCH  suggested he consider changing  the term "verified"                                                               
to "sworn" if his intention was to require a sworn statement.                                                                   
                                                                                                                                
2:04:54 PM                                                                                                                    
SENATOR COGHILL joined the committee.                                                                                           
                                                                                                                                
REPRESENTATIVE GRUENBERG  indicated he would  like to have  a new                                                               
CS  drafted   and  would  try  to   find  accommodation  wherever                                                               
possible.                                                                                                                       
                                                                                                                                
CHAIR FRENCH  said he  liked the  idea of the  bill but  had some                                                               
questions about constitutionality.                                                                                              
                                                                                                                                
HB 6 was held in committee.