Legislature(2019 - 2020)BUTROVICH 205
03/25/2020 01:00 PM Senate RULES
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| Audio | Topic |
|---|---|
| Start | |
| HB309 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 309 | TELECONFERENCED | |
HB 309-CONFIRMATION OF APPOINTMENTS
1:35:28 PM
CHAIR COGHILL announced the consideration of HOUSE BILL NO. 309
am, "An Act relating to the procedure for confirmation of the
governor's appointments; relating to the board of the Mental
Health Trust Authority; and providing for an effective date."
He asked Ms. Miller to present the bill.
1:35:58 PM
RENA MILLER, Staff, Senator Cathy Giessel, Alaska State
Legislature, Juneau, Alaska, stated that HB 309 relates to the
confirmation of the governor's appointees. It temporarily
extends the time when the legislature must meet in joint session
to confirm the governor's appointments to cabinet positions and
state boards and commissions. Under current law, AS 39.05.080,
failure to take up these confirmations in joint session before
adjournment of the regular session is equivalent to a
declination of the appointments. If that were to happen, the
appointees would not be eligible for reappointment. She pointed
out that a joint session of the legislature would mean that 60
members plus support staff would convene in an enclosed space
for up to several hours. Such close quarters meetings are
discouraged by the current health mandates related to Covid-19,
she said.
MS. MILLER advised that HB 309 would allow the legislature to
defer meeting in joint session to confirm the appointees, while
ensuring that those Alaskans who are volunteering to serve on
these boards and commissions are not automatically disqualified
if the legislative session adjourns without having met in joint
session.
1:37:14 PM
MS. MILLER reviewed the sections of HB 309 AM:
Section 1 adds a new section to uncodified law that
applies only to the 31st legislature. For the
appointments presented by the governor during the
second regular session, the legislature shall meet in
joint session at any time to confirm or deny those
appointments. If the legislature does not meet in
joint session by the day that the regular session
adjourns, those appointees will not be considered
denied. After the legislature does meet later this
year to consider the appointments, failure to act on
any of the appointments at that point would be
considered a denial of the appointment.
MS. MILLER said the House added an amendment on the floor to
provide special treatment for an appointee to the Mental Health
Trust Advisory Board of Trustees, such that a member whose term
expires on March 1, 2020 may not continue to serve until a new
member is appointed. She said the Mental Health Trust Authority
has special statutory treatment regarding appointments and they
believe this provision is warranted.
1:38:22 PM
Section 2 sets an immediate effective date.
CHAIR COGHILL offered his understanding that the floor amendment
relates to a statute that requires the appointee to be confirmed
by the legislature or the incumbent must remain on the board. He
said he did not believe that that was the intention of the
governor or the House.
He asked Mr. Abbott to confirm that a seat on this board cannot
be vacant; if an appointee is not confirmed the incumbent will
continue to serve.
1:39:38 PM
MIKE ABBOTT, Chief Executive Officer, Alaska Mental Health Trust
Authority, Anchorage, Alaska, agreed. He said the statute
related to the appointment of a Mental Health trustee indicates
that until an appointee is confirmed by the legislature, the
incumbent trustee must continue to serve. In fact, trustees
sometimes have served for several additional years because an
appointee was withdrawn or failed to be confirmed by the
legislature. Under current law, if the legislature fails to
confirm appointee Rhonda Boyles, incumbent Mary Jane Michael
would continue to serve until Ms. Boyles is confirmed or Ms.
Michael resigns.
1:40:47 PM
SENATOR BEGICH related his understanding of the amendment and
wondered if he was interpreting the language incorrectly.
MR. ABBOTT agreed that he was not interpreting it appropriately.
SENATOR BEGICH recalled the complex Mental Health Trust issue
that was resolved in the late 1980s and asked for assurance that
this provision would not violate that settlement.
1:42:06 PM
MR. ABBOTT advised that he consulted with the Department of Law
when the House was contemplating the floor amendment and
received assurance that it would not affect the Weiss v. State
settlement.
CHAIR COGHILL read the following from page 15 of the Weiss
settlement: "If the Legislature materially alters or repeals any
of those provisions, the plaintiffs' sole remedy is a new action
alleging that the mental health trust has not been adequately
reconstituted"
1:42:53 PM
SENATOR BEGICH commented that if the specific notwithstanding
language was not in the bill, it would be a violation of the
trust.
CHAIR COGHILL agreed it was a possibility.
1:43:14 PM
MR. ABBOTT added that the Department of Law advised that the
House floor amendment was written to affect a statute written in
1991 that contemplated the formation of the trust and created
the structure of the trustees. That was three years before the
1994 Weiss settlement so the floor amendment in HB 309 would not
be considered an adjustment of the Weiss settlement from 1994.
CHAIR COGHILL said the explanation was helpful.
SENATOR BEGICH agreed.
CHAIR COGHILL asked Ms. Miller to formulate for Ms. Wallace the
question that came up about the wording on page 2, lines 3-4,
regarding the governor's appointments during and after
adjournment of the regular legislative session.
1:44:58 PM
MS. MILLER directed attention to page 1, [lines 6-8], which
read, "(a) Notwithstanding AS 39.05.080, for appointments
presented by the governor during the Second Regular Session of
the Thirty-First Alaska State Legislature." She then directed
attention to page 2, lines 3-4, which read, "? during, and after
adjournment of, the Second Regular Session of the Thirty-First
Alaska State Legislature?." She said the language on page 2,
"during, and after adjournment of" could be interpreted to
relate to the appointments presented by the governor and not to
the wording on line 3 that reads: "meeting in joint session
during, and after adjournment of".
1:45:41 PM
MEGAN WALLACE, Director, Legislative Legal Services, Legislative
Affairs Agency, Juneau, Alaska, related her understanding that
the language in subsection (b) on page 2, lines 3-7 indicates
that the names not taken up once the legislature meets in joint
session to consider the names presented by the governor during
the Second Regular Session of the Thirty-First Alaska State
Legislature, as well as any names presented between adjournment
of the Second Regular Session of the Thirty-First Alaska State
Legislature and when it meets in joint session, will be
tantamount to declining the confirmation.
MS. WALLACE recalled a unique circumstance in 2008 and 2009 when
the legislature had to come back in joint session during the
interim to confirm appointments that were presented by the
governor during the interim. She clarified that this language is
to accommodate that rare circumstance where the governor might
actually present a name to the legislature during the interim.
Other than that, this provision would not modify the general
practice in which the governor could wait until the beginning of
the next legislative session to present names of interim
appointments.
1:47:40 PM
CHAIR COGHILL noted that members were satisfied with the
explanation. He solicited amendments.
1:47:58 PM
SENATOR BEGICH moved to adopt Amendment 1, work order 31-
LS1719\M.A.1.
31-LS1719\M.A.1
Wallace
3/25/20
AMENDMENT 1
OFFERED IN THE SENATE BY SENATOR BEGICH
TO: HB 309 am
Page 2, lines 3 - 7:
Delete all material and insert:
"(b) On November 30, 2020, or upon expiration of
the declaration of a public health disaster emergency
issued by the governor on March 11, 2020, whichever is
earlier, the failure of the legislature to act to
confirm or decline to confirm an appointment presented
by the governor during the Second Regular Session of
the Thirty-First Alaska State Legislature will be
tantamount to a declination of confirmation."
CHAIR COGHILL objected for an explanation.
SENATOR BEGICH directed attention to page 2, line 3 that states,
"After the legislature meets in joint session assembled to act
on the appointments . He pointed out that the legislature may
not meet or may even be prohibited from meeting.
He explained that the language in Amendment 1 would prevent the
possibility of appointees not being subject to confirmation by
this legislature, but left to the next legislature to act on,
thereby taking away this legislature's right to do so.
CHAIR COGHILL said he believes that the language in subsection
(a) would require the legislature to meet and confirm the
appointments. He asked Ms. Wallace to comment.
1:49:55 PM
MS. WALLACE explained that subsection (a) does require that the
31st Alaska State Legislature meet to confirm the governor's
appointees. It modifies the declination language on page 1, line
11 that states that the legislature shall at any time meet to
confirm the appointees.
CHAIR COGHILL related his understanding that the requirement is
that this body either meets or it is a de facto declination.
MS. WALLACE replied the requirement that the legislature meet in
joint session to approve or decline to approve the governor's
appointees is a constitutional requirement under Article III,
Sections 25 and 26 that provide that the governor's appointees
are subject to confirmation by the legislature. It is not a
discretionary function so this legislature must fulfill its
constitutional obligation to meet to confirm those appointments.
CHAIR COGHILL related his understanding that the confirmation of
appointees is limited to this legislature; the time can be
deferred but not the event.
MS. WALLACE answered that is correct.
1:51:56 PM
SENATOR BEGICH expressed confusion and asked what would compel
the legislature to do so. He referred to paragraph (2) and read:
(2) if the legislature does not act to confirm or
decline to confirm an appointment, the failure of the
legislature to act to confirm or decline to confirm an
appointment presented is not tantamount to a
declination of confirmation on the day the Second
Regular Session of the Thirty-First Alaska State
Legislature adjourns.
SENATOR BEGICH said this provision would remove the statutory
requirement that if a legislative session is adjourned, the
appointments do not die with the session. He asked how the
legislature is compelled to return to act on its constitutional
responsibility if it cannot since to do so the legislature or
the governor must call the legislature into special session.
That might not happen. For example, last year the House could
not get 40 members to agree to call a special session. Further,
it might not be in the best interest of the legislature to
convene, and finally, the governor might choose not to call the
legislature into special session citing health concerns or some
other reason. He asked if this would create a situation in which
the legislature cannot not exercise its constitutional
obligation to address the governor's appointees in this
legislature.
1:53:29 PM
MS. WALLACE answered that HB 309 does not contemplate the
legislature not meeting in joint session to approve the
confirmation of the governor's appointees. She said she may
agree with his comments that it may be possible, but that is not
what this bill contemplates.
1:53:52 PM
SENATOR VON IMHOF asked what would happen if the legislature
does not meet until January 2021. She also asked if Amendment 1
should state the date of November 30, 2020 or if the date should
be changed to the start of the next legislature in January 2021.
SENATOR BEGICH said he picked what he thought was a reasonable
date, but the last day of this legislature would be fine. He
expressed concern about the legislature violating its
constitutional authority and jeopardizing every one of the
governor's appointees.
CHAIR COGHILL related his understanding that the point is that
inserting a time specific date would circumvent the requirement
for a two-thirds vote by the legislature.
SENATOR BEGICH said putting in a time specific date would be as
though the legislature had officially adjourned and those
applicants would expire because the legislature never
reconvened. The law says that the legislature must exercise its
constitutional authority either by meeting in joint session and
taking up the confirmation hearings or not addressing the
appointments at all.
1:55:43 PM
SENATOR GIESSEL noted that the day before the Alaska legislature
is scheduled to convene is January 18, 2021. She asked if the
convening date should read on that date or 30 days after the
declaration of a public health disaster emergency.
SENATOR BEGICH said that works fine for him.
CHAIR COGHILL asked why it is necessary to insert the January
date since this provision would give the legislature 30 days to
figure it out.
SENATOR BEGICH answered that it's to protect the legislature and
the legitimacy of the three branches. He said this was an
oversight in the bill. As Ms. Wallace said, the bill
contemplates that the legislature will reconvene but that may be
an error.
1:57:40 PM
CHAIR COGHILL offered his view that the closer to the end of the
extension of the disaster declaration of September 1, the
better. Amendment 1 would still provide a 30-day window, all of
September, to contemplate the pandemic and the capability of the
legislature. He asked if the legislature would still need a two-
thirds polling to do so.
1:58:10 PM
MS. WALLACE answered that if the legislature wanted to come back
into special session to address the extension of the disaster
declaration, it would either need to comply with the polling
requirements or the governor would have to call the legislature
into special session.
1:58:38 PM
SENATOR BEGICH restated the motion to adopt Amendment 1, as
follows:
On January 18, 2021, or 30 days after expiration of
the declaration of a public health disaster emergency
issued by the governor on March 11, 2020, whichever is
earlier, the failure of the legislature to act to
confirm or decline to confirm an appointment presented
by the governor during the Second Regular Session of
the Thirty-First Alaska State Legislature would be
tantamount to a declination of confirmation.
1:59:23 PM
CHAIR COGHILL found no objection.
MS. MILLER suggested asking Legislative Legal Services if the
date should be after the expiration of a disaster declared by
the governor or if the intent is to make it within 30 days of a
declaration of a proclamation that the disaster is over. She
recalled that the disaster extension bill used a similar
benchmark.
1:59:57 PM
CHAIR COGHILL suggested that Ms. Wallace, Legislative Legal
Services director, draft the amendment with that comment in mind
while the committee takes an at-ease. He then asked if the next
amendment would still be pertinent.
SENATOR BEGICH answered yes.
2:00:25 PM
SENATOR VON IMHOF asked if the language, "would be tantamount to
a declination of confirmation" means all the confirmations
become invalid.
SENATOR GIESSEL said tantamount means "the same as."
SENATOR VON IMHOF asked if that means the legislature would
decline all the confirmations.
SENATOR GIESSEL answered yes.
SENATOR BEGICH commented that it is consistent with the
legislature's current power under the Constitution of the State
of Alaska.
CHAIR COGHILL remarked that it is the same as the current
statute. He asked Ms. Wallace to work with Senator Begich on
draft language for Amendment 1, as discussed.
2:01:15 PM
MS. WALLACE asked if it is the will of the committee for the
amendment to contemplate the date the disaster is over.
SENATOR BEGICH said he believes Ms. Miller was looking for the
wording of the date of when an official proclamation is given
but that the content would be the same. Senator Giessel
indicated 30 days after expiration of the declaration but Ms.
Miller was saying 30 days after the proclamation that the
disaster is over.
CHAIR COGHILL pointed out that the legislature has a hard date
in statute, but the governor has the authority to issue disaster
declarations. He asked if that works well with the proposed
language.
MS. WALLACE answered that the current version of the disaster
extension bill provides that the disaster will expire on
September 1, 2020, or earlier if the governor issues a
proclamation declaring that the disaster is over. If that
language is included, it would mean it will be 30 days after
either the expiration of the declaration or 30 days after the
governor issues a proclamation that there is no longer a
disaster.
CHAIR COGHILL agreed that was the goal.
2:03:24 PM
CHAIR COGHILL recessed the meeting.
2:37:44 PM
CHAIR COGHILL reconvened the meeting. Present at the call to
order were Senators Begich, Giessel and Chair Coghill. He said
that other two members were attending a conference committee. He
advised members that the committee was awaiting an amendment. He
solicited a motion.
2:38:09 PM
SENATOR BEGICH withdrew Amendment 1.
CHAIR COGHILL said the committee would revisit the issue with a
forthcoming amendment.
2:38:40 PM
SENATOR BEGICH moved to adopt Amendment 2, work order 31-
LS1719\M.A.3:
31-LS1719\M.A.3
Wallace
3/25/20
AMENDMENT 2
OFFERED IN THE SENATE BY SENATOR BEGICH
TO: HB 309 am
Page 2, following line 15:
Insert a new subsection to read:
"(d) If, after the Second Regular Session of the
Thirty-First Alaska State Legislature adjourns, a
person whose appointment is still awaiting
confirmation or declination of confirmation resigns
that person's appointment, or the position or
membership of that person becomes vacant for any
reason other than the expiration of the person's term
of office, the governor may not appoint that person to
the same position or membership until the First
Regular Session of the Thirty-Second Alaska State
Legislature convenes."
CHAIR COGHILL objected for an explanation.
2:38:45 PM
SENATOR BEGICH said Amendment 2 will protect the legislature's
constitutional duty to confirm appointees by closing a loophole
created by HB 309 that would allow nominees to serve through the
next year's legislative session. The amendment would make
nominees that resign after the end of the regular session
ineligible to be reappointed, as if they had been rejected.
Currently, nominees who are appointed can resign if it looks
like they might not be confirmed. However, after the legislature
adjourns these nominees could get appointed again by the
governor. The legislature has always tried to avoid that in its
processes and Amendment 2 will ensure that the current law is
respected, he said.
2:40:03 PM
CHAIR COGHILL removed his objection and Amendment 2 was adopted.
He related that Legislative Legal Services has provided the new
draft amendment to replace Amendment 1 that was withdrawn. He
solicited a motion.
2:40:26 PM
SENATOR BEGICH moved to adopt Amendment 3, work order 31-
LS1719\M.A.4:
31-LS1719\M.A.4
Wallace
3/25/20
AMENDMENT 3
OFFERED IN THE SENATE
TO: HB 309 am
Page 2, lines 3 - 7:
Delete all material and insert:
"(b) The failure of the legislature to act to
confirm or decline to confirm an appointment presented
by the governor during the Second Regular Session of
the Thirty-First Alaska State Legislature will be
tantamount to a declination of confirmation, on the
earlier of
(1) January 18, 2021; or
(2) 30 days after
(A) expiration of the declaration of a
public health disaster emergency issued by the
governor on March 11, 2020; or
(B) issuance of a proclamation that the
public health disaster emergency identified in the
declaration issued by the governor on March 11, 2020,
no longer exists."
CHAIR COGHILL objected for an explanation.
2:40:48 PM
At ease.
2:42:13 PM
CHAIR COGHILL reconvened the meeting. He asked Ms. Wallace if
Amendment 3 would essentially provide ways a declination of
confirmation could happen: the earlier of January 18, or 30 days
after the expiration of the declaration, or the issuance of a
proclamation that the public disaster no longer exists.
2:42:53 PM
MS. WALLACE said she didn't hear the question.
CHAIR COGHILL asked her to discuss Amendment 3.
2:43:13 PM
MS. WALLACE explained that Amendment 3 would delete subsection
(b) of HB 309, on page 2 lines 3-7. This means that there would
be an automatic declination of confirmation upon the earlier of
January 18, 2021, or 30 days after expiration of the disaster
declaration, or 30 days after issuance of a proclamation that
the emergency no longer existed. Amendment 3 is intended to
replace the conceptual amendment discussed prior to the recess.
CHAIR COGHILL opined that Amendment 3 does what the committee
intended to do.
2:44:38 PM
SENATOR BEGICH agreed.
2:44:47 PM
CHAIR COGHILL removed his objection. Finding no further
objection, Amendment 3 was adopted.
2:44:58 PM
SENATOR GIESSEL moved to report SCS HB 309(RLS), work order 31-
LS1719\M.A as amended, from committee with individual
recommendations and forthcoming fiscal note(s).
2:45:47 PM
CHAIR COGHILL found no objection. Therefore, the SCS HB 309(RLS)
was reported from the Senate Rules Standing Committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| Back up for HB 309.pdf |
SRLS 3/25/2020 1:00:00 PM |
HB 309 |