Legislature(2001 - 2002)
04/24/2001 08:06 AM House STA
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 87 - ALASKA VETERANS ADVISORY COUNCIL Number 2170 CHAIR COGHILL announced that the last order of business would be HOUSE BILL NO. 87, "An Act establishing the Alaska Veterans Advisory Council; and providing for an effective date." [Before the committee was CSHB 87(MLV).] Number 2165 CHAIR COGHILL mentioned that he has a committee substitute (CS) that differs from CSHB 87(MLV), in that language requiring two legislative members to sit on the council has been removed. He opined that members of the legislature should not sit on councils within the executive branch. [This CS was not provided in the committee secretary's packet.] CHAIR COGHILL called an at-ease from 9:09 a.m. to 9:10 a.m. REPRESENTATIVE JAMES said she disagrees with that point and that she prefers CSHB 87(MLV). She noted that there are many "committees" within the administration that have members of the legislature appointed to them. "There is an advantage for anyone who is doing an advisory issue," which may result in legislation or otherwise fiscally impact the state, to have someone from the legislature on their council. She opined that having members of the legislature on the Alaska Veterans Advisory Council would provide the council with a "soft pillow" in the discussion process in the event that the council decides to recommend legislation or otherwise affect a department's budget. Number 1974 CAROL CARROLL, Director, Administrative Services Division, Department of Military & Veterans Affairs (DMVA), explained that the DMVA would like to see the Alaska Veterans Advisory Council instituted in statute, adding that the council has been of great value to the DMVA in fulfilling its mission of advocating for veterans' issues. The council acts as the eyes and ears of the DMVA for veterans at both the state and national levels. She said that under HB 87, the council would continue the work it currently does, noting that the current administration originally created the council via "Administrative Order." The council makes recommendations on issues of interest to veterans in Alaska to the DMVA, such as benefits for veterans and recognition of veterans' services. She noted that HB 87 stipulates that the council would include the legislature in its discussions regarding any recommendations to the DMVA and the governor. She also mentioned that the chair of the council currently provides all of the council's minutes to the chair of the House Special Committee on Military and Veterans' Affairs. She concluded by saying that the DMVA anticipates that "that sort of activity" will continue, and because the DMVA values what the council does for it, it would like to see the council established in statute. REPRESENTATIVE JAMES asked how the department felt about including members of the legislature on the council. She noted that in the past, she has served as an appointee on some of the administration's committees, and she found it very helpful in terms of creating a dialog between the administration and the legislature regarding legislation. REPRESENTATIVE HAYES indicated he agreed with Chair Coghill: having legislative members on the council is not necessary given that the chair of the House Special Committee on Military and Veterans' Affairs currently receives the council's minutes. Having the legislature involved in this advisory council would just make for an additional layer of people who are not needed, he opined. CHAIR COGHILL mentioned that there is a letter from the attorney general in members' packets. [This letter was not provided in the committee secretary's packet.] Number 1656 JOHN GAGUINE, Assistant Attorney General, Civil Division (Juneau), Department of Law (DOL), noted that the aforementioned letter, written in March, relayed the DOL's concerns about possible constitutional problems with CSHB 87(MLV). He said that his goal today is to make it clear to the committee that the administration views HB 87 as an important matter. With regard to the points addressed in the letter, he explained that appointing legislators to an executive branch committee would - in the DOL's opinion - violate the "dual office holding prohibition" of the Alaska State Constitution - Article II, Section 5 - and other separation-of-powers issues. When asked about other executive branch committees that have had legislative members appointed to them, he said that the administration has taken the position that, as a matter of comity to the legislature, they were not going to challenge those committees. He added that he could not speak to whether the administration would behave in the same fashion toward CSHB 87(MLV). REPRESENTATIVE JAMES noted that when she served on the Alaska Seafood Marketing Institute (ASMI) board, although she was not a voting member, she had opportunity to discuss issues. As a member of the Grant Review and Bond Reimbursement Committee of the Department of Education, during drafting of the regulations pertaining to how schools are built and how to be reimbursed for building schools, she did have a vote. With regard to HB 87, she asked whether not allowing the legislative appointees to vote would change [the DOL's opinion]. MR. GAGUINE said he did not think it would change anything since the legislative members would still be members, and, as a mere advisory committee, having a vote may not be that important anyway. REPRESENTATIVE JAMES, noting that since the administration has chosen not to challenge any of the other executive branch committees that have legislative members, asked Mr. Gaguine why he is challenging CSHB 87(MLV). MR. GAGUINE replied that he is merely expressing the DOL's concerns regarding CSHB 87(MLV), as is done for any legislation to which the DOL has concerns. REPRESENTATIVE JAMES posited that having members of the legislature on the Alaska Veterans Advisory Council would reduce the likelihood of conflict related to legislation arising amongst the various parties involved in veterans' issues. REPRESENTATIVE HAYES reiterated that the legislature currently receives the council's minutes, thus providing safeguards against conflict. Number 1342 REPRESENTATIVE JAMES noted that while it is true that the legislature is kept informed of the council's actions, the legislature currently has no voice in the council's discussions and decisions. She continued: What I'm looking for is a smooth transition between that group of folks and the legislature, as opposed to having any kind of a conflict. And I think that this is an issue which could ensure that we wouldn't have that conflict because you have a viable person in both the House and Senate to support this decision that came out. I'm not saying it would be any different than it currently is, in this recommendation, but I just see that if we do it in other areas, we ought to do it in this one. If we separate this one out, then it tells me you don't want to know what we [think] - you're just going to come and tell us what you want us to do. CHAIR COGHILL noted that this is a good point; "when people do something in a commission and [then] come to the legislature, we automatically become adversarial rather than inclusive." REPRESENTATIVE STEVENS said that although he appreciates the separation-of-power concept, he did not see how sitting on an advisory council could be considered a dual-office violation. As an example, he said that he would first and foremost view Representative James as a member of the legislature rather than as a member of a council, board, or committee on which she happens to sit. He said he sees a real advantage in having legislators on various [executive branch] committees because it enables those legislators to come back to the rest of the legislature and explain the committee's decisions, and vice versa. He asked whether the Alaska Veterans Advisory Council could truly be considered an "office." MR. GAGUINE said that it has been the position of the DOL that the constitutional prohibition against dual office holding prohibits legislators from holding "any other office or position of profit...." He specified that the word "office" stands alone in this prohibition [as opposed to "position of profit"], and that membership on an executive branch committee, even an advisory committee, is an "office". He admitted that there are probably good policy arguments, both for and against allowing legislators to serve on [executive branch] committees such as the Alaska Veterans Advisory Council, but the Alaska State Constitution, as interpreted by the DOL, prohibits dual office holding regardless of the policy arguments. Number 1125 REPRESENTATIVE WILSON said she would like to know what the definition of "office" is, and whether it means an elected office or an appointed office. MR. GAGUINE replied: "In this case it has to be an appointed office because this is a legislator holding an office in the executive branch; the only elected offices are, obviously, governor and lieutenant governor and you can't hold both of those." REPRESENTATIVE WILSON noted that some other states do allow this; it is not uncommon for legislators [in other states] to be appointed to many different committees. MR. GAGUINE said that he could not speak to the constitutional framework of those other states. REPRESENTATIVE WILSON noted that it does help to have the legislative viewpoint on executive branch committees, and it provides continuity when making decisions. She added that obviously, the legislator on any such committee is not going to sway the whole committee when the legislator is only 1 out of 19 or 21 members. Number 0923 MG PHILLIP E. OATES, Adjutant General/Commissioner, Department of Military and Veterans Affairs (DMVA), explained that there are many ways in which the veteran's voice can be heard. One of the ways is through the DMVA. There are also three main organizations that exist - the Veterans of Foreign Wars of the United States (VFW), the Disabled American Veterans (DAV), and the American Legion. He added that the "federal VA" also has a voice, as well as the many veterans around the state serving as advocates. Each one of those entities serves a different purpose, and the idea behind the Alaska Veterans Advisory Council is to talk about the overarching policy needs in order to assist the governor and legislature in coming up with the policies that are appropriate for Alaska's veterans. GENERAL OATES said that he agrees with Representative Hayes's position. The purpose is not to cut anyone out of the discussions or deliberations. "We have one of the most, if not the most, active military and veteran's affairs committees here in our own House of Representatives, probably of any state in the union." He noted that a couple of good points in CSHB 87(MLV) are that the council shall advise the legislature, which is highly appropriate, and shall annually make recommendations to the legislature, along with the governor and the DMVA. He opined, however, that there is value in having a council that does not have himself or someone else from the governor's staff as a member; furthermore, it will still be possible to interact with the council and receive information from them without being a part of the process. GENERAL OATES noted that by putting the Alaska Veterans Advisory Council in statute, it elevates the importance of veterans and gives them the status by which they can advocate veterans' needs to the legislature, the governor, and the DMVA. He also noted, based on his 32 years of military experience, that neither the military nor the veterans are political activists; he said that one of the strengths of the military is that they have "been raised" to keep out of politics. He added that this thread of reasoning is also appropriate in the establishment of the council; the council and the military should work for the civilian leaders of the military - the legislature and Congress, respectively. To illustrate what the Alaska Veterans Advisory Council has done to date, he said that the council has been very helpful with regard to a number of issues: the bill giving high school diplomas to World War II veterans, arranging for veterans' status for the Alaska Territorial Guardsman, and making recommendations to the governor each year regarding recognition for the veteran who has done the most for all veterans in the state. He concluded by saying that the legislature has a voice in the Alaska Veterans Advisory Council, and that the council will work with the legislature as effectively as with any other body. Number 0504 REPRESENTATIVE JAMES reiterated her position that having legislators on the Alaska Veterans Advisory Council would help during deliberations, and opined that had there been legislators on the council during discussions regarding the Pioneers' and Veterans' Home, issues could have been resolved in a smoother fashion. She stated that she is in favor of placing the Alaska Veterans Advisory Council in statute, but added that she is distressed because, although there are legislators on other executive branch committees, it appears that this council is not being treated the same way, as if to say that veterans' issues are not as important or that it does not matter what the legislature can bring to the table regarding these issues. CHAIR COGHILL noted that the current issue is whether the legislature would be included in the discussion at the council level or would simply get the report from the council after decisions are already made; it becomes problematic when the legislature is accused of "playing volley" with issues when they have not been included in the discussion process to begin with. TAPE 01-48, SIDE A Number 0001 GENERAL OATES said that it is very shortsighted to think that the legislature is not a full participant in any policy implemented by [the DMVA]; "I will not achieve my goals by having good ideas [if] we don't work cooperatively with the legislature." He promised that [the Alaska Veterans Advisory Council] would work with the legislature in any way it deems fit. He concluded by saying that he just thinks it is better to have the Alaska Veterans Advisory Council work for the legislature, without having a member of the legislature or an executive branch employee as a member of the council. REPRESENTATIVE CRAWFORD opined that having legislators on the council may "exert undue influence" on the council in its deliberations, and it would be better to just let the council deliberate and then bring its decision to the legislature. REPRESENTATIVE STEVENS opined that the comments heard from the department of law are "just absolutely silly and contradictory." To illustrate this, he referred to page 2, lines 26-27 of CSHB 87(MLV), which says "The council shall elect a chair from among its members who are not state officers or employees"; according to the DOL, everyone on the council will be considered "an officer" - having been appointed to the "office" - therefore, the implication is that no one can be chair. He suggested: "We should do what we darned well please, and if the [DOL] wants to sue us over this issue, let them go ahead; let's get this settled in the courts." Number 0342 TERRI LAUTERBACH, Attorney, Legislative Legal Counsel, Legislative Legal and Research Services, Legislative Affairs Agency, said that although she would not necessarily typify the DOL's comments as "silly, ... I can probably agree that we don't know how the courts would rule" with regard to having legislative members on the council. She added that in its letter, the DOL made some statements that have not yet been confirmed by the courts. With regard to the statement about Article I, Section 5, that the term "office" stands alone and that "of profit" does not pertain to it, she said that it is not certain yet whether "of profit" applies to both "office" and "position", or only to the latter. Therefore, it is not quite fair to say that someone who serves in an office but is not compensated is still covered by this dual office holding prohibition; "the courts haven't told us that." She noted that the other reasons listed in the letter seem to her to be less applicable to an advisory [council] that has no power; there can't be a concentration of power when the [council] itself has no power. Therefore, she surmised, the advisory nature of this council is also something the court would look at when determining whether the purposes for not allowing dual office holding are violated by having legislators on this particular council. MS. LAUTERBACH, on the DOL's concerns regarding separation of powers, pointed out that council members would not be executive officers: they don't carry out laws, they don't make decisions, they simply serve in an advisory capacity. She added: While we're not sure whether the court would agree with us or not, in [Legislative Legal and Research Services], we think there's ample room there for the legislature to take this risk, and ample room for the court to decide that in this case - in an advisory commission where no one's paid, or at least the legislators aren't paid for anything other than their [legislative] salaries - ... that this is ok. They're not executive officers, ... they're not making lots of money, [and] they're not exerting power. On the other hand, we don't know for sure, in this case, how a court would come out 'cause there's no precedent. So it becomes a policy call, both on whether you think legislators would have too much personal power - not executive/legal power, but personal power - to sway the members of the board, and whether you think that's OK; or, whether the advantages of having legislative input are outweighed by the disadvantage of a possible risk of litigation. MS. LAUTERBACH, on a question regarding the staggered three-year terms for members, responded that this provision applies only to council members who are not state officers or employees; therefore, legislators, being employees of the state, are not affected by this provision. In conclusion, she noted that the DOL has taken the position in the past that advisory councils are probably not covered by the prohibition against dual office holding. In fact, an opinion from the attorney general's office in 1977 pertaining to a temporary advisory commission said that the prohibition did not apply, she noted, and added that some of the DOL's concerns could be alleviated by putting a sunset on the Alaska Veterans Advisory Council. She pointed out that many statutes have sunset dates, which makes those statutes more or less temporary. REPRESENTATIVE STEVENS asked Ms. Lauterbach whether her interpretation is that serving on this council would constitute dual office holding. MS. LAUTERBACH reiterated that this is a question that has not yet been decided by the courts and, therefore, she could not foresee how the courts might decide should the question come before them. Number 0826 CHAIR COGHILL noted that the issue before the House State Affairs Standing Committee is whether to report CSHB 87(MLV) from committee. REPRESENTATIVE HAYES objected. Number 0900 A roll call vote was taken. Representatives Fate, James, Stevens, Wilson, and Coghill voted to report CSHB 87(MLV) from House State Affairs Standing Committee. Representatives Crawford and Hayes voted against it. Therefore, CSHB 87(MLV) was reported from the House State Affairs Standing Committee.
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