Legislature(1995 - 1996)
03/30/1995 02:10 PM House HES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 171 - COMMISSIONER OF EDUCATION SERVES AT BOARD'S PLEASURE Number 245 CO-CHAIR BUNDE said the HESS Committee has previously heard this bill. An amendment was brought forward, and those concerns were taken back to the bill's sponsor. Co-Chair Bunde asked that the bill and the amendment be addressed again. REPRESENTATIVE TERRY MARTIN, sponsor of HB 171, said the major concern addressed in the bill was to somehow get control of the system of appointment by governors. Governor Cooper did it, so did Hickel and Governor Knowles. The whole system of appointment is being disregarded in the sense of continuity for officers. In some areas, this continuity is needed. Some commissions need people with one, two or five years experience. REPRESENTATIVE MARTIN said those commissioners are paid well, and they should be paid well for their expertise. Representative Martin has become very concerned. In the most recent case, the Commissioner of Education was paid very well in his contract, and he was paid very well to resign. This is a misuse of the system and a misuse of public money. REPRESENTATIVE MARTIN said if the person appointed was well qualified and worthy of special compensation, they should be allowed to serve the full four or five years of their appointment. It is not right for a new Governor to be elected and call for all resignations, and then pay the people to resign. Usually, these people receive a "$75,000 handshake" to leave the contract. That is a complete misuse of the system. Number 360 REPRESENTATIVE MARTIN said the amendment seeks to defer the problem. CO-CHAIR BUNDE asked a question about the bill. He said it currently reads, "The commissioner serves at the pleasure of the board and may not be appointed by the board for a term of office." REPRESENTATIVE MARTIN realized that did not sound right. He said he has been reviewing that statement. A term of office is a term of office. Representative Martin meant for it to mean that the commissioner of education would complete his or her term. The term could not be cut off by a new governor. Only the board, in this particular case, should decide who is the executive director. REPRESENTATIVE MARTIN said he then found out that did not solve the problem. He then inquired how many people in the past have been paid off to resign early. He asked if people felt multi-year terms were a good idea in order to continue consistency throughout the terms of gubernatorial administrations. The Alaska Housing and Finance Corporation (AHFC) is currently in a large mess. In three governors, the AHFC has seen three boards. There has also been four commissioners in the last two years. This is ridiculous. REPRESENTATIVE MARTIN asked if the HESS Committee could devise a permanent plan. One of the incentives in getting a commissioner to leave is to pay them $160,000 or some other amount to bow out of their contract. That completely destroys the legislators' efforts and, in most cases, the intent of statutes which offset years of service. Number 497 REPRESENTATIVE MARTIN said the bill strictly deals with the Department of Education. He felt, however, that all the commissioners should be protected. Governor Knowles will get his chance in the last two or three years. However, some of the people appointed recently who are just getting the hang of their job are wiped out. A new person is then appointed. CO-CHAIR BUNDE again read, "The commissioner of serves at the pleasure of the board and may not be appointed by the board for a term of office." He asked if that meant if the board wanted a commissioner to serve from one governor's administration to another, the board could do that. REPRESENTATIVE MARTIN said he would like, in this particular case, to have the law follow as much as possible for the appointment to be by the board. The constitutional convention made it very clear it wanted the board and the executive director to not be political pawns. Number 580 CO-CHAIR TOOHEY asked if therefore, the sentence in question should be changed to "The commissioner serves at the pleasure of the board and may not be removed by the board until his term is completed." REPRESENTATIVE MARTIN said he was after something like that. CO-CHAIR BUNDE asked what was a term. He suggested the sentence be shortened to "serves at the pleasure of the board." That way, the board could have the commissioner work for a week or for ten years. REPRESENTATIVE MARTIN asked if the new board should be able to get rid of the old appointee who just got appointed with a new contract. He asked if the state wants the Board of Education to be independent of the governor. There is a normal changeover of those directors every three, four or five years so there is continuity. It that is true, the board will then elect their own executive director. A new governor coming in cannot get rid of them. REPRESENTATIVE MARTIN said again, to pay someone to resign is a misuse of government money. Number 670 CO-CHAIR TOOHEY asked if a commissioner is appointed by the current governor, does the governor also appoint the board. REPRESENTATIVE MARTIN said there are only two cases where constitutionally the commissioner or the director is appointed by the board. Those two cases are the Department of Education and the Department of Fish and Game. Therefore, the Governor, indirectly (through his new board), can appoint someone. CO-CHAIR TOOHEY asked if the Governor appoints a whole new board when the commissioner comes on. REPRESENTATIVE MARTIN said that is part of the trouble now. As with other agencies, it completely destroys the continuity of offices. It would be better to rotate the board, perhaps by appointing two new members every year. If a new governor erases the board, it may be that some members of the board have only completed five or six months in their position. Number 739 CO-CHAIR BUNDE pointed out that what happened this year is the commissioner refused to leave. The Governor appointed a new board. The commissioner serves at the pleasure of the board, and he was paid to leave. CO-CHAIR TOOHEY said that was her point. If Representative Martin does not want to make political appointments, that is fine as long as the board is not politically appointed also. If the board is rotated through different appointments and different governors, that is fine. REPRESENTATIVE MARTIN said one way to stop it is that people will not voluntarily resign until they are given a large amount of money and a sweet job. Number 756 TOM ANDERSON, Legislative Assistant, Representative Terry Martin's Office, said the idea is that the state has a governor turnover every four years. There is also a turnover of the board. But currently, the law (which is being deleted in this bill) stipulates the Department of Fish and Game and the Department of Education appointments are not to exceed five years. Therefore, the appointment "runs over" into another governor's term. MR. ANDERSON said HB 171 stipulates that as the state gets a new governor, it gets a new Board of Education which has the right to dismiss the commissioner without a contract. Therefore, the commissioner serves at the pleasure of the board. The board would then pick the commissioner and may not be appointed by the board for a term of office. Therefore, the commissioner would not be bound by this potential to have up to a five year service. MR. ANDERSON said it is confusing, but it does work. Legal Services believes it works. That would prevent the "$75,000 handshake" from ever occurring again. Number 857 CO-CHAIR BUNDE asked to discuss the main bill before the amendment was addressed. Number 872 MARY HALLORAN, Legal Administrator, Office of the Attorney General, Department of Law, said basically the Governor has offered similar legislation in HB 174, also in the HESS Committee. Everybody is concerned that the Commissioner of Education, under current statute, is a contractual employee as opposed to being someone who serves at the pleasure of either the board or the Governor. MS. HALLORAN said HB 171 clearly changes that status to make the Commissioner of Education like other commissioners who serve at the pleasure of someone. In this case, the state does not end up in a situation where the commissioner does not meet the requirements of the Governor or the board and cannot be dismissed. The current statute requires the commissioner can only be dismissed for causes very difficult to prove. MS. HALLORAN said where there is a case where removal is necessary for whatever reason, it almost always will cost the state more in litigation than to just simply buy out the contract. HB 171 also repeals the requirement that the commissioner can only be removed for cause. That makes the removal possible for pleasure. The DOL supports this. It increases the accountability of that public official. Number 955 CO-CHAIR BUNDE asked about his possible change, which would make the bill read, "The commissioner of education serves at the pleasure of the board." MS. HALLORAN agreed that the words "...and may not be appointed by the board for a term of office" is additional language that is not needed. People who serve at the pleasure of the board are not allowed to have contracts. Therefore, that language takes the bill where the sponsor wants it to be. CO-CHAIR TOOHEY understood that the Governor's bill is exactly the opposite. His says the commissioner may serve at the pleasure of the Governor. MS. HALLORAN said of course it does, but the DOL is also happy with that approach. The DOL would like to get the fundamental problem resolved. Number 1007 CO-CHAIR BUNDE asked because the Governor appoints the Board of Education, it might delay the change but it will not prevent the change. MS. HALLORAN said he was right. She then asked to respond to Co- Chair Toohey's question. The board is composed of seven voting members. Only four of them can be of the same political party as the Governor. That is meant to keep the board as a-political as possible in a very political world. CO-CHAIR TOOHEY asked if the board resigns upon the inauguration of a new governor. MS. HALLORAN said the Governor may request their resignations if he decides to do so. CO-CHAIR BUNDE said in the most current case, one person was held over, and six new people were appointed. Number 1070 REPRESENTATIVE ROBINSON felt this was kind of a "toss up." The board is going to be appointed by the Governor. She therefore didn't care which direction the bill went, but she somewhat felt it makes it cleaner by having the commissioner serve at the pleasure of the governor. She was curious why Representative Martin felt it would be better if the commissioner served at the pleasure of the board. The Governor is clearly going to ask the old board to leave and appoint new board members. REPRESENTATIVE ROBINSON realized the board was responsible for taking the recommendation to the Governor. She felt perhaps that was the reason behind Representative Martin's choice. She felt, however, that the commissioner could easily serve at the pleasure of either the Governor or the board. CO-CHAIR BUNDE felt Representative Martin's choice makes the appointment a little less political. In addition, the board feels a little bit more involved in the process by doing the appointing. They are doing the recommendations, and Co-Chair Bunde would suspect the Governor would be inclined to accept their recommendation. Number 1160 CO-CHAIR TOOHEY did not think anyone would have a problem with either this bill or the Governor's. However, the reference to severance pay and the high cost of getting rid of unwanted commissioners must be addressed. She feels this bill addresses that. CO-CHAIR BUNDE said if the commissioner serves at the pleasure of someone, that will get rid of severance pay regarding the Commissioner of Education. Number 1197 SHEILA PETERSON, Special Assistant to the Commissioner of Education, said the State Board is very concerned about this issue also. Their primary concern is getting rid of the "cause" phrase, and getting rid of the term of office. The Department of Education would like to see the legislature address this issue to allow some flexibility as to who the commissioner is. MS. PETERSON said the State Board of Education represents the whole state. The members need to be from different judicial districts, and they must be from different political parties. Therefore, currently the statute is written to provide a cross-section of people on the board to represent the general public. The board strongly urges the legislature to act on this legislation. Number 1236 REPRESENTATIVE ROBINSON asked if there has been a lot of discussion on this. One of the main reasons the original law was set up and passed was to try to take the appointment out of the political process. The whole concept was there would be a commissioner who would continue to serve and a board that would continue to serve. The education was supposed to be separate. Representative Robinson felt the bottom line is that the appointment is political and all the state is doing is causing more problems. REPRESENTATIVE ROBINSON wondered if the board talked about the philosophy of the bill and what this change truly means. It means this bill clearly changes the philosophy of how the state hoped education was going to be managed in this state. Number 1273 MS. PETERSON did not think the current board feels they are a "parrot" for the Governor. They feel they are very independent individuals. They present and work through problems as individuals. The recent appointment of the commissioner was completely at the direction of the board. The board made the selection independent of any advice from the Governor. MS. PETERSON believes this is how they will respond to their commissioner. Governor Knowles is not getting involved, and Ms. Peterson does not believe he will get involved. People who are on the State Board of Education take that as a serious opportunity to represent the public. They are very interested in education. They will look at the commissioner in that light to make decisions concerning the commissioner. Number 1321 CO-CHAIR TOOHEY asked if the commissioner signs a contract. MS. HALLORAN answered that under HB 171, the commissioner would not sign a contract. CO-CHAIR TOOHEY thought the whole purpose of this legislation is to have the commissioner agree that his/her term is limited, and he/she can be removed at the will of the board at any time and without severance pay. She asked if the commissioner was therefore paid by the month. MS. HALLORAN said Co-Chair Toohey was correct on all points. CO-CHAIR TOOHEY then asked if she was correct that the commissioner is under no obligation to stay longer than the board. MS. HALLORAN again said Co-Chair Toohey was correct. Number 1359 REPRESENTATIVE DAVIS asked if there had to be a cause for the commissioner to be terminated by the board. MS. HALLORAN said under current statute, he/she can only be removed for cause. HB 171 deletes that provision. CO-CHAIR BUNDE asked for discussion on Amendment 1. REPRESENTATIVE MARTIN said the whole idea is that other problems arose with the introduction of HB 171. People asked him about departments other than Education, departments not addressed in HB 171 as it now reads. Representative Martin asked people if other problems with payoff occurred in state agencies other than the Department of Education. He found there were payoffs to make people resign, and that is a misuse of government money. CO-CHAIR BUNDE asked HESS Committee members to notice the amendment changes the title and broadens the scope of this bill significantly. Co-Chair Bunde asked that Representative Martin speak again to the amendment, and then public testimony would be taken. Number 1432 REPRESENTATIVE MARTIN said if it would simplify what Ms. Halloran said about the Board of Education, the amendment could be made into a separate bill. CO-CHAIR BUNDE said it would be the preference of the chair to make the amendment a separate bill. He proposed HB 171, line 5 to read, "The commissioner serves at the pleasure of the board." REPRESENTATIVE DAVIS asked if the bill was going to address who appoints the commissioner, or is that going to be assumed. REPRESENTATIVE BRICE concurred if the bill says he/she serves at the pleasure of the board, that does not say he/she is appointed by the board. MS. HALLORAN said in other sections of AS 14.07.145 it provides for the appointment of the commissioner of Education by the Board of Education subject to the approval of the Governor. Number 1499 CO-CHAIR BUNDE closed public testimony on HB 171 and asked for the pleasure of the committee. Representative Davis moved HB 171 as amended with attached fiscal notes and individual recommendations. There were no objections, and the bill passed. REPRESENTATIVE MARTIN asked the committee to entertain a committee bill consisting of Representative Martin's original amendment to HB 171. Co-Chair Bunde said such a bill would be considered.
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