Legislature(2011 - 2012)CAPITOL 120
04/04/2011 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB168 | |
| HB1 | |
| HB6 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 161 | TELECONFERENCED | |
| += | HB 168 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 1 | TELECONFERENCED | |
| += | HB 6 | TELECONFERENCED | |
HB 6 - REMOVING A REGENT
2:19:56 PM
VICE CHAIR THOMPSON announced that the final order of business
would be HOUSE BILL NO. 6, "An Act authorizing the governor to
remove or suspend a member of the Board of Regents of the
University of Alaska for good cause; and establishing a
procedure for the removal or suspension of a regent." [Before
the committee was CSHB 6(EDC); left pending from the hearing on
March 21, 2011, was the motion to adopt the proposed committee
substitute (CS) for HB 6, Version 27-LS0027\T, Mischel, 2/25/11,
as the working document; included in members packets was a new
proposed committee substitute (CS) for HB 6, Version 27-
LS0027\R, 3/25/11.]
2:20:11 PM]
REPRESENTATIVE PRUITT moved to adopt the proposed CS for HB 6,
Version 27-LS0027\R, 3/25/11 as the working document.
REPRESENTATIVE HOLMES objected for the purpose of discussion.
2:20:46 PM
TED MADSEN, Staff, Representative Max Gruenberg, Alaska State
Legislature, on behalf of the sponsor, Representative Gruenberg,
explained that Version R incorporates three changes. Proposed
AS 14.40.155(a)(3) now uses the phrase, "an accusation" rather
than the phrase "a complaint"; this new language conforms to
that used by the Department of Law (DOL) with regard to the
state's personnel board. Proposed AS 14.40.155(g)(1) now
includes the additional wording of, "that results in a
recommendation of removal under AS 39.52.410(b)(3)"; this
additional language should ensure that only the most serious of
such violations may constitute good cause for removal. And
proposed AS 14.40.155(g)(4)(B) now includes the additional
wording of, "for an extended period of time"; this additional
wording should ensure that an inability to serve for just one
meeting, for example, wouldn't constitute grounds for removal.
REPRESENTATIVE HOLMES removed her objection.
VICE CHAIR THOMPSON, noting that there were no further
objections, announced that Version R was before the committee.
MR. MADSEN, to briefly recap, explained that HB 6 has been
introduced in response to an incident that occurred back in
2007, when a member of the Board of Regents of the University of
Alaska was indicted on many counts of fraud and embezzlement of
federal funds [but refused to resign his position as regent].
Inquiries by various legislative committees at the time revealed
that the Board of Regents didn't have a procedure in place by
which to remove a regent. To date, the Board of Regents has yet
to adopt such a procedure. House Bill 6 would insulate the
university from any cloud of suspicion, and ensure that the
university remains free from political pressure. Under HB 6, a
regent could only be removed or suspended for good cause.
2:24:23 PM
REPRESENTATIVE KELLER referred to a proposed amendment included
in members' packets that read [original punctuation provided]:
Page 2 line 5
Delete all language and insert
05 (1) clarify that the governor may remove a regent
for good cause, or a determination that the good of
the university requires it;
REPRESENTATIVE KELLER noted that currently the bill authorizes
the governor to remove a regent only for "good cause", with that
concept then being defined in terms of actions undertaken by the
regent, and asked why the bill wasn't written such that the
governor could simply remove a regent if he/she thinks doing so
would be good for the university. With some other boards, for
example, members serve at the pleasure of the governor.
REPRESENTATIVE GRUENBERG, speaking as the sponsor, explained
that the University of Alaska was set up as a separate
constitutional entity, with its Board of Regents being different
than other boards or commissions, which fall under the purview
of the executive branch. Under Article III, Section 26, of the
Alaska State Constitution, the members of those other boards and
commissions may be removed as provided by law. [Under Article
VII, Section 3, of the Alaska State Constitution, regents are
also appointed by the governor and subject to legislative
confirmation, but in contrast, that constitutional provision
doesn't directly address the removal of a regent and instead
mandates that the Board of Regents formulate policy in
accordance with law. Again, the Board of Regents has yet to
exercise] this inherent constitutional authority to establish a
policy for removing a regent for good cause, and so the only
option currently is for the legislature to conduct a formal
impeachment proceeding, but such proceedings, in addition to
being cumbersome, are not practical given that the legislature
meets for only part of the year. He offered his understanding
that members' packets include a legal opinion to this effect.
REPRESENTATIVE GRUENBERG, referring, then, to the proposed
amendment, said he is concerned that it would subject the Board
of Regents to potential political pressure and political
interpretation regarding what would constitute "the good of the
university" in the eyes of the governor, particularly given that
in the Alaska State Constitution, the university has been set
apart from the executive branch of government. The proposed
amendment would therefore be subject to constitutional challenge
and likely be found unconstitutional, he predicted.
REPRESENTATIVE KELLER asked of Legislative Legal and Research
Services whether, if the committee were to choose to allow, as a
matter of policy, for the removal of a regent by the governor
for the good of the university, that would pass constitutional
muster, and whether there is currently a way to remove a regent
because of some wrong that the regent is accused of committing.
2:31:01 PM
JEAN MISCHEL, Attorney, Legislative Legal Counsel, Legislative
Legal and Research Services, Legislative Affairs Agency (LAA),
ventured that impeachment would be one way of removing a regent,
and offered her belief that currently the governor has the
implied authority to remove any regent, and that nothing in
current case law or the Alaska State Constitution prohibits the
governor from removing a regent under the governor's inherent
appointment authority. The legislature's options are to either
clarify that point in statute and risk a constitutional
challenge over separation of power, or change Article VII,
Section 3, of the Alaska State Constitution to allow for the
removal of a regent as provided by law.
VICE CHAIR THOMPSON asked whether the governor supports HB 6.
MS. MISCHEL relayed that she wasn't able to say.
2:33:28 PM
JUDY BOCKMAN, Assistant Attorney General, State Ethics Attorney,
Opinions, Appeals, & Ethics, Civil Division (Anchorage),
Department of Law (DOL), relayed that she wasn't able to say,
either.
VICE CHAIR THOMPSON asked whether passage of HB 6 would provide
the governor with the immediate authority to suspend a regent
and have that suspension remain in effect until the regent is
cleared in a hearing.
MS. BOCKMAN said she was unable to say.
REPRESENTATIVE GRUENBERG offered his belief that passage of HB 6
would provide that authority. [Under proposed AS 14.40.155(b),]
the governor could remove a regent for good cause, [with
proposed AS 14.40.155(g) defining what would constitute good
cause]; some examples are felony convictions, or malfeasance or
nonfeasance in office, including an inability to serve [for an
extended period of time. Under proposed AS 14.40.155(a)], the
governor, after providing notice and an opportunity for a
hearing, could suspend a regent while final disposition on
certain issues is pending; one example would be a felony
indictment. With regard to suspensions, either the governor or
the regent could request a hearing, which would be conducted by
the Office of Administrative Hearings.
REPRESENTATIVE GRUENBERG, regarding the question of whether the
governor supports HB 6, mentioned that the previous
administration had assisted in drafting a previous iteration of
the bill, and that no one from the current administration has
expressed concern about HB 6.
2:37:27 PM
REPRESENTATIVE KELLER asked Representative Gruenberg whether he
would be amenable to altering the bill such that it would
provide the governor with a means of removing a regent for the
good of the university, or whether he would prefer to keep the
bill's current limitation of removing a regent only for good
cause.
REPRESENTATIVE GRUENBERG offered his belief that from both a
policy perspective and a constitutional-law perspective, there
should be specific guidelines set out in the bill rather than
just a vague and standard-less delegation of authority. The
language in the proposed amendment - "the good of the
university" - goes beyond what he would be comfortable with, he
relayed, because adoption of such language would allow the
governor to impose his/her political will simply because he/she
disapproves of certain decisions made by the Board of Regents -
for example, how many football scholarships to provide for. It
would therefore be unwise to adopt such vague language, he
opined, surmising that it would probably also be
unconstitutional.
REPRESENTATIVE GRUENBERG pointed out that even proposed AS
14.40.155(g)(4) - which currently lists malfeasance or
nonfeasance in office as one meaning of the term, "good cause" -
further outlines in its subparagraphs (A)-(E) what would
constitute malfeasance or nonfeasance in office, and regardless
that some of those items are subjective, a nexus is required.
In other words, there must be a finding that the regent had
either done something or failed to do something and that that
action or failure to act was connected with the duty of the
regent.
REPRESENTATIVE KELLER indicated a preference for ensuring that
the legislature, along with the executive branch, be able to
provide input regarding the university and its Board of Regents.
REPRESENTATIVE GRUENBERG expressed a preference for setting up
some sort of procedure now, regardless that it may not yet be
perfect, that would allow for the removal a regent for good
cause. Doing something now would ensure that the legislature
isn't put in the same position it found itself in a few years
ago, when a regent was indicted on criminal charges but refused
to resign his position.
REPRESENTATIVE KELLER - mentioning that he wouldn't be moving
the proposed amendment because he agrees that it's too broad -
requested that the bill not be reported from committee at this
time. He indicated, however, that he would be amenable to
reporting the bill from committee if that was the vice chair's
preference.
2:44:47 PM
REPRESENTATIVE KELLER then made a motion to adopt [Conceptual
Amendment 1], which read [original punctuation provided]:
Page 2, line 14
after the word "suspend"
Add
14 ...with or without pay....
REPRESENTATIVE PRUITT objected for the purpose of discussion.
REPRESENTATIVE KELLER explained that [Conceptual Amendment 1]
would address situations in which the governor wishes to suspend
a regent without pay.
MR. MADSEN relayed that information he's been provided with
indicates that regents do not receive pay for serving on the
Board of Regents but instead receive per diem when traveling to
meetings, and since a suspended regent wouldn't be attending any
meetings during the period of suspension, he/she wouldn't be
entitled to per diem.
REPRESENTATIVE KELLER withdrew [Conceptual Amendment 1].
REPRESENTATIVE KELLER then mentioned that he would not be
offering another proposed amendment he'd had drafted [that would
also have provided for the removal of a regent for the good of
the university].
VICE CHAIR THOMPSON, after ascertaining that no one else wished
to testify, closed public testimony on HB 6.
2:46:57 PM
REPRESENTATIVE GRUENBERG moved to report the proposed CS for
HB 6, Version 27-LS0027\R, Mischel, 3/25/11, out of committee
with individual recommendations and the accompanying fiscal
notes.
REPRESENTATIVE KELLER objected, expressing a preference that
more research be conducted on the bill before it's reported from
committee.
REPRESENTATIVE GRUENBERG, in response, relayed that he would
continue working on the bill to try to address members' concerns
about it.
2:49:01 PM
A roll call vote was taken. Representatives Pruitt, Thompson,
Gruenberg, and Holmes voted in favor of reporting the bill from
committee. Representative Keller voted against it. Therefore,
CSHB 6(JUD) was reported out of the House Judiciary Standing
Committee by a vote of 4-1.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB168 Proposed Amendment B.2 03-29-11.pdf |
HJUD 4/4/2011 1:00:00 PM |
HB 168 |
| HB1 CS Version B 04-01-11.pdf |
HJUD 4/4/2011 1:00:00 PM |
HB 1 |
| HB6 CS Version R WORK DRAFT 03-25-11.pdf |
HJUD 4/4/2011 1:00:00 PM |
HB 6 |
| HB6 Draft Amendment Keller 1 03-21-11.pdf |
HJUD 4/4/2011 1:00:00 PM |
HB 6 |
| HB6 Draft Amendment Keller 2 04-04-11.pdf |
HJUD 4/4/2011 1:00:00 PM |
HB 6 |
| HB6 Draft Amendment Keller 3 04-04-11.pdf |
HJUD 4/4/2011 1:00:00 PM |
HB 6 |
| HB6 Explanation of Changes Version T to R 04-04-11.pdf |
HJUD 4/4/2011 1:00:00 PM |
HB 6 |