Legislature(2001 - 2002)
04/02/2002 03:40 PM Senate STA
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
HB 331-PRESENTMENT OF GOVERNOR'S APPOINTEES
LINDA SYLVESTER, legislative aide to Representative Pete Kott,
introduced HB 331 and read the preamble to AS 39.05.070 that
clarifies how presentments of the Governor are handled:
The purpose of this section of statute is to provide
the procedural uniformity in the exercise of appointive
powers conferred by the Legislature to eliminate,
insofar as possible, recess or interim appointments
except in the event of death, resignation, inability to
act or other removal from office and the exercise,
insofar as possible, of appointive powers only when the
Legislature is in session.
Following is the sponsor summary:
HB 331 eliminates ambiguities in AS 30.05.080 making it
clear that presentment of the governor's appointees to
boards and commissions may only occur during regular
sessions of the legislature. This bill eliminates the
potential for confirmation sessions occurring during
special sessions and it also reconciles potentially
conflicting language regarding the timing of the
appointee's presentation.
This issue arose at the end of the 2001 regular
session, following the failed confirmation bid of a
Game Board appointee. In response to that event, under
paragraph (3), the governor made a new appointment and
presented the name to the Legislature within 20 days
following notification of the failed nomination. As to
that Game Board vacancy, the Governor was correct under
paragraph (3) in appointing and presenting the name,
but since the regular session of the Legislature had
adjourned, under paragraph (1), that presentment was
ineffective.
The waters become muddy because the 20-day requirement
(that the governor has to name a candidate following a
failed confirmation) of paragraph (3) is a direct
conflict with paragraph (1), which states that only
presentment that occurs during a regular session
constitutes presentment. To further complicate the
issue, AS 39.050.080 by:
· Removing the 20-day requirement in paragraph (3) and
keeping the requirement of paragraph (1) stating
that only presentment during a regular session is
valid;
· Inserting as appropriate throughout the section,
"regular,"
· Removing "within five calendar days" from the latter
part of paragraph (1) because the five-day
presentment requirement in paragraph (1) is just as
problematical as the 20-day presentment requirement
since the fifth day could be outside the regular
session even if the appointment were made during the
regular session.
MS. SYLVESTER explained the following changes:
On page 2, line 3, after "expire" insert "on or before" and
on line 6, delete the words "within five calendar days after
the appointment is made," and insert "immediately." The five
day presentment requirement was problematic because the
fifth day could be outside the regular session even if the
appointment was made during the regular session.
On page 2, lines 8-9 delete, "The deadline may be extended
by the Legislature by the approval of a concurrent
resolution." and insert "immediately." It is
unconstitutional to modify a statute by concurrent
resolution; a statute can only be modified by adoption of
another statute.
CHAIRMAN THERRIAULT asked whether Legislative Legal said that
point was unworkable.
MS. SYLVESTER said they have something that says it is unclear
whether or not an appointee can be confirmed during the special
session.
CHAIRMAN THERRIAULT restated his question concerning the
constitutionality of extending the deadline by passage of a
concurrent resolution.
MS. SYLVESTER replied that was unconstitutional.
On page 2, lines 24-28, the following is deleted: "The new
appointment shall be presented for confirmation to the
Legislature within 20 calendar days following receipt by the
governor of the legislature's notification of its refusal to
confirm the prior appointment."
CHAIRMAN THERRIAULT recapped using a hypothetical situation that
might occur at the end of a regular legislative session if an
appointee is turned down and the regular session is over the
following day. The Governor would make a locum tenens appointment
and the powers for that position would come under paragraph (4),
page 3, lines 5-25. When the Legislature next convened in regular
session eight or nine months later, the Governor would present
his appointee within the first 30 days and the Legislature would
confirm or deny the appointment.
He noted the board member would be participating and making
decisions for almost a year after which they might be denied the
appointment.
MS. SYLVESTER said the Governor's Office proposed inserting
language saying that the Governor would refrain from making
appointments within the last fourteen days of the regular
legislative session. They believe this is problematic because the
Legislature wouldn't have the authority to limit the Governor and
he could simply ignore it or the law would be unconstitutional.
The other problem is that if the Governor does make a presentment
to the Legislature during the last few days of a regular session
the Legislature could act if it weren't limited by the fourteen
day rule. Additionally, on page 3, lines 3 and 4 the statute
stipulates that if the Legislature does not act by the end of the
regular session that is tantamount to declination. The have added
the word "regular" before the word "session" here and every place
"session" occurs to make it very clear that it takes place during
the regular session.
CHAIRMAN THERRIAULT asked for the administration's position on
the bill in general.
MS. SYLVESTER replied they liked the fact that it was a clean-up
bill, but they wanted the fourteen days. They weren't very
receptive to the word, "immediate."
CHAIRMAN THERRIAULT wanted to take time to think about the
implications of the legislation, but asked Ms. Sylvester to
assure Representative Kott that he didn't have a specific problem
with the bill.
HB 331 was held in committee.
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