Legislature(2015 - 2016)CAPITOL 106
03/30/2016 08:00 AM House EDUCATION
Note: the audio ![]()
and video ![]()
recordings are distinct records and are obtained from different sources. As such there may be key differences between the two. The audio recordings are captured by our records offices as the official record of the meeting and will have more accurate timestamps. Use the icons to switch between them.
| Audio | Topic |
|---|---|
| Start | |
| Confirmation Hearings(s): | |
| Professional Teaching Practices Commission (ptpc) | |
| State Board of Education and Early Development | |
| SJR2 | |
| HB357 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | SJR 2 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| *+ | HB 357 | TELECONFERENCED | |
HB 357-BOARD OF ED/BOARD OF REGENTS MEMBERS
9:05:13 AM
CHAIR KELLER announced that the final order of business would be
HOUSE BILL NO. 357, "An Act relating to the Board of Education
and Early Development; and relating to the Board of Regents of
the University of Alaska."
9:07:42 AM
REPRESENTATIVE VAZQUEZ described HB 357, paraphrasing from the
sponsor statement, which read as follows [original punctuation
provided]:
House Bill 357 places two legislators on the state
Board of Education and Early Development and two
legislators on the Board of Regents for the University
of Alaska.
House Bill 357 affords improved communications between
the legislature and each respective board. It opens
dialogue, allows for a better understanding of
successes and challenges, and provides insight into
areas within each organization.
Having two legislatures serve as non-voting members on
each board will allow the legislature to be better
informed and more knowledgeable of each board, assists
in the legislative process to support the goals and
objectives of each organization, and gives improved
insight to each board on the legislative process.
House Bill 357 will build the framework to shape a
strong future for Alaska's educational needs.
9:08:52 AM
REPRESENTATIVE VAZQUEZ emphasized that the legislative board
members would be non-voting, and acknowledged the concern
regarding the possible violation of the separation of powers.
The Legislative Legal Services counsel provided an opinion for
review but may have overlooked AS 24.05.050, she said, and read
the statute as follows:
Sec. 24.05.050. Membership on boards and commissions.
A member of the legislature may serve on a board or
commission of the state government only if the
membership of legislators on the board or commission
is specifically authorized by law.
9:12:55 AM
REPRESENTATIVE VAZQUEZ said that in addition there are
legislators currently serving on 13 boards and commissions,
which include: Alaska Aerospace Corporation seats a senator and
a representative; Alaska Justice Commission seats a senator and
a representative; Governor's Council on Disabilities and Special
Education seats a representative; State Council on Education
Opportunities for Military Children seats a senator; Citizens
Advisory Commission on Federal Lands in Alaska seats a senator
and a representative; State Council for Interstate Adult and
Juvenile Offender Supervision seats a senator; Knik Arm Bridge
and Toll Authority Board of Directors seats a senator and a
representative; Alaska Native Language Preservation Advisory
Council seats a senator and a representative; Pacific States
Marine Fisheries Commission seats a senator; Alaska Commission
on Postsecondary Education seats a senator and a representative;
Statewide Suicide Prevention Council seats two senators and two
representatives; the Alaska Tourism Marketing Board seats a
senator and a representative; and the now defunct Alaska Health
Care Commission, seated a senator and a representative;. There
are also three commissions and committees on which the governor
serves, and the lieutenant governor serves on one commission.
Seating the legislators as non-voting members satisfies the
concern regarding separation of powers, she opined. These
members will be important liaisons for the legislature as a
whole, and given the 90 day session, will facilitate further
understanding during the interim.
9:14:00 AM
CHRIS CHRISTENSEN, Associate Vice President for State Relations,
University of Alaska (UA), stated opposition to HB 357, and said
the intent for improved communications is commendable. However,
having legislative members would create strong grounds for legal
challenges to specific actions that are taken by the board. He
noted that legislators and staff are welcomed to attend board
meetings. In 2015, he reported, the regents met 20 times. Five
of the meetings were multi-day affairs that entertained hours of
public testimony. Often legislators appear at these meetings
and frequently testify. The seating of legislators, however,
would subject board action to legal challenge for three specific
reasons: violation of separation of powers between the
executive and legislative branches; violation of the
constitutional prohibition on dual office-holding by
legislators; and inconsistency with the stated intent of the
framers of the constitution to insulate the university from
politics.
9:15:41 AM
MR. CHRISTENSEN, addressing the concern for separation of
powers, cited the relevant constitutional provision as being
Article 7 Sec. 3, a clear and unambiguous statement, which reads
as follows:
SECTION 3. Board of Regents. The University of Alaska
shall be governed by a board of regents. The regents
shall be appointed by the governor, subject to
confirmation by a majority of the members of the
legislature in joint session. The board shall, in
accordance with law, formulate policy and appoint the
president of the university. He shall be the executive
officer of the board.
MR. CHRISTENSEN opined that the appointment of regents by the
legislature would directly encroach on the governor's exclusive
authority, under the constitution, to appoint board members.
9:16:12 AM
MR. CHRISTENSEN, addressing the concern for dual office-holding,
cited Article 2 Sec. 5, which reads as follows:
SECTION 5. Disqualifications. No legislator may hold
any other office or position of profit under the
United States or the State. During the term for which
elected and for one year thereafter, no legislator may
be nominated, elected, or appointed to any other
office or position of profit which has been created,
or the salary or emoluments of which have been
increased, while he was a member. This section shall
not prevent any person from seeking or holding the
office of governor, secretary of state, or member of
Congress. This section shall not apply to employment
by or election to a constitutional convention.
MR. CHRISTENSEN reported that the Alaska Supreme Court has ruled
that this section should be read and enforced literally. The
position of regent is a constitutional office. A legislator
appointed to serve as regent would, thus, clearly hold two
offices in violation of this section. A ruling in 1976 stated
that judges, a governor, and legislators, may not serve as a
regent while at the same time retaining such office.
9:17:09 AM
MR. CHRISTENSEN, addressing the concern for inconsistency with
the stated intent of the framers of the constitution to insulate
the university from politics, said that placing legislators on
the board inevitably injects politics directly into the internal
operations of the university. The constitutional convention
hosted debate to separate partisan politics from education in
general, and specifically from the university. For example,
during the framers debate on the provision that creates the
executive branch, concerns were raised regarding the appropriate
place for the university in the new state government. Concerns
were repeatedly expressed in terms of the need to insulate the
university from politics. He cited a 2007 opinion provided by
an attorney general, which he summarized as follows:
After reviewing the minutes of the convention, it was
fair to draw two conclusions: the framers intended to
create a very strong governor with full appointive
power, but that, despite the strong governor model,
the convention never the less intended to insulate the
university from politics, including from the governor.
9:18:15 AM
MR. CHRISTENSEN said that placing legislators on the board would
be the exact opposite of insulating the university from
politics, and serve to insert legislative politics into the
internal decision making. The legislators hold the ultimate
authority over the university, but that authority is meant to be
exercised in the confines of the Capitol through the budget and
bill processes. He maintained that the framers of the
constitution worked to create these protections. A seated, non-
voting legislator would influence decisions, he opined, and said
voting is not the only means by which a member of a public body
participates or influences decisions of that public body. Even
as the committee debates the bill proposed today, the debate
itself will influence the outcome of the final decision on the
legislation. The executive branch ethics act, to which all
regents are subject, states:
Refraining from voting is not sufficient to avoid
taking official action. Advice, participation, or
assistance is enough.
MR. CHRISTENSEN stressed that under existing Alaskan law mere
participation by board members is enough to constitute official
action, even when not voting.
9:20:09 AM
MR. CHRISTENSEN referred to the boards and commissions, which
seat legislators, and said statutes do not override the language
of the constitution. He pointed out that the board of regents
is one of only four constitutional boards. The boards and
commissions listed earlier by Representative Vazquez were
created under statute, by the legislature, with enabling
legislation to allow for that service/seating. He underscored
the significance of the regents being a constitutional board,
and said it often takes controversial actions, such as tuition
increases, allocation of declining budgets between campuses and
programs, law suits filed/defended, transactions of investment
bonds and real estate, and hiring a president. Unhappy parties
may, and have, brought legal suit challenges to the board for
reasons such as the ones named, he reported. One significant
power of the board, which is especially relevant at this time,
is the power to reduce or discontinue academic programs and the
power to declare financial exigency. These actions permit the
university to reduce faculty and staff without the normal
constraints or notice periods that are ordinarily required by
contracts, law, or regulation. People dissatisfied with
decisions in this area will seize on any uncertainty regarding
the board's authority and use that uncertainty to delay or
disrupt necessary actions. Litigation often ensues during
aggressive, reorganizational periods, which is what the
university is currently undergoing to meet budgetary demands.
During the financial crash that occurred in the 1980's the
university underwent a restructuring phase, absorbing the
community campus system, which resulted in significant, lengthy
litigation, which was sustained by a faculty union. The
uncertain legality of seating legislators on the board will
provide fodder for opponents of other actions; claim could be
brought due to this technicality versus actual merit. Argument
would be made that the disagreeable action taken by the board
was illegal because some members of the board were illegally
seated. The risk of this type of technical challenge outweighs
any benefits of increased communication.
9:23:45 AM
MR. CHRISTENSEN underscored the importance for improved
communication, and offered examples of how that might be handled
without legislators being seated or enactment of additional
legislation. Inner branch advisory commissions exist throughout
the state, some are university commissions and seat legislators.
When President Jim Johnson assumed office, in 2015, he created
the Alaska Higher Education Roundtable, for the purpose of
advising him, and the invited membership included business
leaders as well as the Alaska House of Representatives and State
Senate education and finance committee chairs.
9:24:51 AM
REPRESENTATIVE COLVER asked for the names of the four boards
established by order of the constitution.
MR. CHRISTENSEN responded: University of Alaska Board of
Regents, the Judicial Council, the Commission on Judicial
Conduct, and the local boundary [commission].
9:25:26 AM
REPRESENTATIVE DRUMMOND asked when the regent meetings are held.
MR. CHRISTENSEN answered that 5 multi-day meetings are held in
February, April, June, September, and December. In addition 15
single day meetings are held throughout the year. The multi-day
meetings are held on the three different main campuses, and the
single day meetings are often accomplished via
telecommunications to minimize travel costs.
9:26:27 AM
CHAIR KELLER opined that the university appears to hold a low
opinion of the legislature. He suggested that the board would
be aware of the political presence and any undue partisan
concerns would be identified and managed appropriately. Also,
he questioned whether there are constitutional prohibitions for
seating a legislator.
9:28:15 AM
MR. CHRISTENSEN cited the roundtable invitation to the chair and
his colleagues.
CHAIR KELLER opined on the difference of attending a roundtable,
philosophical discussion versus sitting with a decision making
body. He acknowledged the concerns for possible complications
and enhancement as an invitation for litigation; however, that
may not have been tested and remains a theory.
MR. CHRISTENSEN agreed that policy making bodies and advisory
bodies are very different, and it's that distinction which the
opinions of attorneys general have pointed towards when
considering the dual office holding and separation of powers
provisions, as well as the insertion of politics beyond the
oversight level of the Capitol. The constitution states that
the governor shall appoint, and the use of the term "shall"
would be held in court as a limitation, he predicted.
CHAIR KELLER maintained that it hasn't been tested in court.
MR. CHRISTENSEN reiterated that a number of attorneys general
have issued and held the same opinion for over 40 years that
serving on a non-advisory board violates the dual office-holding
provision, as well as the separation of powers provision. One
Alaska Supreme Court reading cautions close adherence to the
dual office-holding provision, with allowances made strictly for
military service and service as a member of a constitutional
convention. The court has said that, because these two
exceptions are made, they are to be held to without expansion.
This is a similar provision as is written in the U.S.
Constitution and 45 other states, where the topic has undergone
extensive litigation. He agreed to provide copies of the
opinions to the committee.
9:31:34 AM
REPRESENTATIVE VAZQUEZ asked whether the constitution prohibits
legislators from serving on the Board of Regents.
MR. CHRISTENSEN opined that it's difficult to confine some
responses to a non-elaborated yes or no, and said "I believe
that yes it does, if I were to limit it to one of those two
words."
REPRESENTATIVE VAZQUEZ said, "And that is your interpretation."
MR. CHRISTENSEN responded, "It's also the interpretation of the
attorney general going back over 40 years."
REPRESENTATIVE VAZQUEZ asked whether statute prohibits
legislators from serving on the Board of Regents.
MR. CHRISTENSEN answered no, because the constitution overrides
statute, and the concern is specifically addressed in the
constitution.
REPRESENTATIVE VAZQUEZ pointed out that state statute allows
members to sit on 13 other boards.
MR. CHRISTENSEN explained that the boards, previously named,
were established by legislation. Some are disallowed, he added,
and said the ones that are allowed do so primarily because they
have not been tested in court. The Board of Regents is held
differently than any of those agencies. He reiterated that
given the law of unintended consequences, if a union takes issue
with any action taken by the Board of Regents and the court
upholds that a seated member was serving in violation, it's
conceivable that legislators may be unseated from the other
boards and commissions.
9:34:40 AM
REPRESENTATIVE VAZQUEZ surmised that distinguishing between a
voting versus non-voting member is a factor and the objection is
to the mere legislative presence.
MR. CHRISTENSEN restated that influence occurs during debate,
thus constituting official action.
REPRESENTATIVE VAZQUEZ maintained that every bureaucracy has its
own politics.
MR. CHRISTENSEN agreed, and said that is why the framers worked
to insulate facets of politics from the Board of Regents.
9:36:55 AM
CHAIR KELLER closed public testimony.
9:37:18 AM
REPRESENTATIVE SEATON referred to the committee packet and the
three page Legal Services memorandum, dated 3/26/16, with the
subject "Constitutionality of HB 357 (Work Order No. 29-
LS1520\A), issued by Kate S. Glover, Legislative Counsel, and
said it covers the topic of advisory board versus executive
action, as well as a detailed explanation of the dual office-
holding prohibition, contained in Article 2, Section 5 of the
state constitution.
9:39:15 AM
CHAIR KELLER commented that the issue of whether politics should
be involved, and avoidance for including legislators on any
board or council is an undefined, overused term to avoid
interaction by the legislature. He opined that this puts the
legislature at a disadvantage, despite the members being elected
officials representing constituents. Partisan politics should
not be brought to bear, he opined, and said:
The role of a legislator is much more than that - it's
one of communicating and interacting and, frankly,
debate. Debate is a way to get to the truth.
9:41:14 AM
REPRESENTATIVE SPOHNHOLZ expressed concern of politics entering
into the decisions of the university. Legislative participation
appears to be welcomed by the regents; however, a non-voted
legislative member would exert an element of influence through
the act of participating. Additionally, the means by which the
legislators would be selected, is in itself a political action.
The bill removes a level of insulation that is important in
ensuring a separation of power. The intent for improving
communications is commendable, but there may be other vehicles
to accomplish that end. The separation of bodies, as outlined
in the constitution may be jeopardized by HB 357, and said it's
naïve to think that the bill would not inject politics into the
deliberations of the Board of Regents.
9:45:29 AM
REPRESENTATIVE DRUMMOND said that, as a member of the Anchorage
Municipal Assembly, she was required to resign her seat in order
to assume her position at the legislature. She reviewed the
regent's 2016 schedule: 15 single day meetings and 5 multi day
conferences. In order for a legislator to participate,
especially during a 90 day legislative session, the time
constraints could prove to be prohibitive and possibly
disruptive to the schedule. However, she pointed out,
legislative members are not precluded from auditing board
meetings.
CHAIR KELLER announced HB 357 as held over.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SJR2 version A.pdf |
HEDC 3/30/2016 8:00:00 AM |
SJR 2 |
| SJR 2 Sponsor Statement.pdf |
HEDC 3/30/2016 8:00:00 AM |
SJR 2 |
| SJR2 Fiscal Note OOG-DOE 3-18-2016.pdf |
HEDC 3/30/2016 8:00:00 AM |
SJR 2 |
| SJR 2 Letter of Support-University of Alaska.pdf |
HEDC 3/30/2016 8:00:00 AM |
SJR 2 |
| SJR 2 Letter of Support-Juneau Chamber of Commerce.pdf |
HEDC 3/30/2016 8:00:00 AM |
SJR 2 |