Legislature(1993 - 1994)

04/14/1993 08:00 AM RES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
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               HOUSE RESOURCES STANDING COMMITTEE                              
                         April 14, 1993                                        
                            8:00 a.m.                                          
                                                                               
                                                                               
  MEMBERS PRESENT                                                              
                                                                               
  Representative Bill Williams, Chairman                                       
  Representative Bill Hudson, Vice Chairman                                    
  Representative Con Bunde                                                     
  Representative Pat Carney                                                    
  Representative Joe Green                                                     
  Representative Eldon Mulder                                                  
                                                                               
  MEMBERS ABSENT                                                               
                                                                               
  Representative John Davies                                                   
  Representative Jeannette James                                               
  Representative Eldon Mulder                                                  
                                                                               
  OTHER LEGISLATORS PRESENT                                                    
                                                                               
  Representative Carl Moses                                                    
                                                                               
  COMMITTEE CALENDAR                                                           
                                                                               
  HB 230:   "An Act relating to fees for commercial fishing                    
            licenses and permits."                                             
                                                                               
            ADOPTED CSHB 230 (RES) AND PASSED FROM COMMITTEE                   
            WITH A DO PASS RECOMMENDATION                                      
                                                                               
  Board of Game Confirmations:                                                 
            A. Ruggles, R. Huntington, S. Entsminger, J.                       
            Didrickson, E. Polley                                              
                                                                               
            ALL NAMES ADVANCED WITH INDIVIDUAL RECOMMENDATIONS                 
            WITH COMMITTEE REPORT AND LETTER OF EXPLANATION                    
                                                                               
  WITNESS REGISTER                                                             
                                                                               
  Representative Carl Moses                                                    
  Alaska State Legislature                                                     
  State Capitol, Room 204                                                      
  Juneau, Alaska  99801-1182                                                   
  Phone:  465-4451                                                             
  Position Statement: Prime Sponsor, HB 230                                    
                                                                               
  Frank Homan, Commissioner                                                    
  Commercial Fisheries Entry Commission                                        
  8800 Glacier Highway, Suite 109                                              
  Juneau, Alaska  99801-8079                                                   
  Phone:  789-6160                                                             
  Position Statement: Responded to license term question on HB
                      230                                                      
                                                                               
  Jerry Luckhaupt, Attorney                                                    
  Legislative Affairs Agency                                                   
  Division of Legal Services                                                   
  130 Seward Street, Suite 409                                                 
  Juneau, Alaska  99801-2105                                                   
  Phone:  465-2450                                                             
  Position Statement: Responded to questions on legal aspects                  
                      of appointments to the Board of Game                     
                                                                               
  Marjorie Odlund                                                              
  Assistant Attorney General                                                   
  Department of Law                                                            
  P.O. Box 110300                                                              
  Juneau, Alaska  99801-0300                                                   
  Phone:  465-3600                                                             
  Position Statement: Responded to questions on legal aspects                  
                      of appointments to the Board of Game                     
                                                                               
  PREVIOUS ACTION                                                              
                                                                               
  BILL:  HB 230                                                                
  SHORT TITLE:  VESSEL FEES                                                    
  BILL VERSION:                                                                
  SPONSOR(S):   REPRESENTATIVE(S) MOSES                                        
                                                                               
  TITLE: "An Act relating to fees for commercial fishing                       
  licenses and permits."                                                       
                                                                               
  JRN-DATE     JRN-PG               ACTION                                     
  03/15/93       649    (H)   READ THE FIRST TIME/REFERRAL(S)                  
  03/15/93       649    (H)   FISHERIES, RESOURCES, FINANCE                    
  03/26/93              (H)   FSH AT 08:30 AM CAPITOL 17                       
  03/26/93              (H)   MINUTE(FSH)                                      
  04/02/93       957    (H)   FSH RPT  CS(FSH) NEW TITLE  1DP                  
                              2NR                                              
  04/02/93       958    (H)   DP: MOSES                                        
  04/02/93       958    (H)   NR: PHILLIPS, OLBERG                             
  04/02/93       958    (H)   -FISCAL NOTE  (F&G)  4/2/93                      
  04/02/93              (H)   MINUTE(FSH)                                      
  04/14/93              (H)   RES AT 08:00 AM CAPITOL 124                      
                                                                               
                                                                               
  ACTION NARRATIVE                                                             
                                                                               
  TAPE 93-44, SIDE A                                                           
  Number 000                                                                   
                                                                               
  The House Resources Committee was called to order by                         
  Chairman Bill Williams at 8:25 a.m.  Members present at the                  
  call to order were Representatives Williams, Hudson, Bunde,                  
  Carney, Green, and Finkelstein.  Members absent were                         
  Representatives Davies, James and Mulder.                                    
                                                                               
  CHAIRMAN BILL WILLIAMS announced the order of the meeting,                   
  with consideration of HB 230 first, followed by action on                    
  the confirmation of appointees to the Board of Game.                         
                                                                               
  HB 230:  VESSEL FEES                                                         
                                                                               
  REPRESENTATIVE CARL MOSES, PRIME SPONSOR OF HB 230, told the                 
  committee that the fee structure for commercial fishing                      
  vessels proposed in the legislation was intended to make the                 
  fees equitable.  He explained that currently, a flat $20 fee                 
  is charged for all vessels without regard to vessel size.                    
  The House Special Committee on Fisheries' substitute for HB
  230 (CSHB 230 (FSH)) proposes a sliding fee scale, based on                  
  the length of the vessel, so that larger boats would be                      
  charged a higher fee, he informed.                                           
                                                                               
  REPRESENTATIVE MOSES noted that the original version of HB
  230 would have removed a cap that currently exists on annual                 
  commercial fishing license fees.  Those fees are based, in                   
  limited entry fisheries, on the value of the permit, and in                  
  non-limited entry fisheries on the average or gross                          
  earnings.  The current $750 cap has artificially kept permit                 
  fees down to $150 maximum for Alaska residents and $750                      
  maximum for non-residents.                                                   
                                                                               
  REPRESENTATIVE MOSES explained that after the House Special                  
  Committee on Fisheries heard testimony from commercial                       
  fishermen on the potential impacts of that portion of HB
  230, it was decided that the issue of fishing fees would be                  
  examined during the interim.  He stated CSHB 230 (FSH) only                  
  addresses the vessel license fees and would generate                         
  approximately $600,000 in additional revenue to the state.                   
  The state's fisheries' management programs are losing ground                 
  to inflation and increasing complexity and value of                          
  fisheries, he added, and the legislation includes intent                     
  language that the additional funds generated by HB 230 would                 
  be used to enhance fisheries management and development                      
  programs.                                                                    
                                                                               
  REPRESENTATIVE MOSES noted that CSHB 230 (FSH) has the                       
  support of the United Fishermen of Alaska (UFA).                             
                                                                               
  Number 101                                                                   
                                                                               
  REPRESENTATIVE PAT CARNEY referred to line 8 on page 1                       
  regarding the payment of the license fee, and commented that                 
  the language there seemed unnecessary because of previous                    
  references to licensing for two years.  He suggested                         
  deleting from the beginning of "20" on line 8, through "and"                 
  on line 9.                                                                   
                                                                               
  Number 126                                                                   
                                                                               
  VICE CHAIRMAN BILL HUDSON asked whether there was a shift                    
  from one year to up to two years.                                            
                                                                               
  REPRESENTATIVE MOSES stated that was not the intent, and                     
  said it had been "up to two years" previously.                               
                                                                               
  Number 146                                                                   
                                                                               
  VICE CHAIRMAN HUDSON commented that he had been approached                   
  by three commercial fishermen in Juneau who asked if                         
  legislation could be introduced to create a five-year                        
  license, paid in advance for that time period.  The state                    
  would then have the revenues in the bank to draw interest                    
  from, with the idea being that the fishermen are in a                        
  commercial business and a five-year license would be less                    
  cumbersome to their commercial enterprises.  He suggested                    
  this would be something to look into in the future, and not                  
  necessarily to consider as an addition to HB 230.                            
                                                                               
  NUMBER 160                                                                   
                                                                               
  REPRESENTATIVE MOSES noted that under the fee structure                      
  proposed in HB 230, most of the fishermen probably would not                 
  want to pay the fees for five years in advance.                              
                                                                               
  CHAIRMAN WILLIAMS asked if there were any comments on                        
  Representative Carney's suggested language.                                  
                                                                               
  REPRESENTATIVE CARNEY made a MOTION to delete language on                    
  line 8, beginning after "fee" to just before "and" on line                   
  9.                                                                           
                                                                               
  Number 170                                                                   
                                                                               
  CHAIRMAN WILLIAMS asked if there were any objections to the                  
  motion.  Hearing none, the MOTION PASSED.                                    
                                                                               
  REPRESENTATIVE JOE GREEN suggested making the license fee                    
  time period optional so that those who wished to pay for a                   
  five-year license in advance could do so.                                    
                                                                               
  Number 187                                                                   
                                                                               
  FRANK HOMAN, COMMISSIONER, COMMERCIAL FISHERIES ENTRY                        
  COMMISSION, said that the idea was something that would have                 
  to be researched before any recommendation could be made.                    
                                                                               
  REPRESENTATIVE CON BUNDE voiced concerns over the impact                     
  such a measure might have on administration of the fees.                     
                                                                               
  Number 200                                                                   
                                                                               
  REPRESENTATIVE BUNDE made a MOTION to pass CSHB 230 (FSH) as                 
  amended with individual recommendations.  He asked unanimous                 
  consent.                                                                     
                                                                               
  CHAIRMAN WILLIAMS asked if there were any objections.                        
  Hearing none, the MOTION PASSED.                                             
                                                                               
  Number 220                                                                   
                                                                               
  CHAIRMAN WILLIAMS announced that the committee would next                    
  take up the confirmations to the Board of Game.  He                          
  explained that at the committee's previous meeting on April                  
  7, attorneys from the Department of Law and the Legislative                  
  Legal Services' division explained their respective views on                 
  the legal issues surrounding the appointments of Jack                        
  Didrickson and Ernie Polley to the Board of Game.  Having                    
  heard those legal opinions, he hoped the committee could now                 
  decide on the action they wished to take.                                    
                                                                               
  Number 238                                                                   
                                                                               
  REPRESENTATIVE BUNDE said he would like to MOVE that the                     
  committee consider only Jack Didrickson be recommended for                   
  confirmation to the disputed seat.                                           
                                                                               
  REPRESENTATIVE CARNEY noted that four of the appointees                      
  should be moved.                                                             
                                                                               
  REPRESENTATIVE BUNDE agreed and said that was his intent,                    
  but because committee discussion had centered on Mr.                         
  Didrickson, he would like to start with him.                                 
                                                                               
  Number 260                                                                   
                                                                               
  REPRESENTATIVE DAVID FINKELSTEIN commented that the                          
  confirmation decision would actually be made by the full                     
  membership of the House and Senate in joint session.  He                     
  said the Resources committee recommendation was important                    
  but in the end, all five names would be available to the                     
  full body.  Personally, he believed the committee should                     
  first dispose of the first name before them, then consider                   
  the next name the governor had put before the committee.                     
                                                                               
  Number 279                                                                   
                                                                               
  VICE CHAIRMAN HUDSON remarked that if Mr. Didrickson is the                  
  duly appointed nominee, as appeared to be the case, while                    
  the governor takes the position that only Ernie Polley's                     
  name should be put forward, then the committee's only option                 
  is to advance Mr. Didrickson's name for confirmation.  He                    
  noted that this leaves the committee with the question of                    
  what to do about Mr. Polley.                                                 
                                                                               
  VICE CHAIRMAN HUDSON also suggested the committee send                       
  forward a letter or some record of the issues at hand as the                 
  basis for whatever decision is reached.  He advised that Mr.                 
  Polley's name should not be construed as having been                         
  rejected for the seat.  He said it was important that the                    
  possibility be left open for Mr. Polley to be appointed to a                 
  seat on the board in the future, or to Mr. Didrickson's seat                 
  if he is not confirmed.                                                      
                                                                               
  Number 320                                                                   
                                                                               
  JERRY LUCKHAUPT, ATTORNEY, DIVISION OF LEGAL SERVICES,                       
  explained that on the issue of Mr. Polley, he differed in                    
  opinion with the attorney general's office.  He believed Mr.                 
  Polley's name was never properly before the legislature.  He                 
  noted a rule that says when a name is properly before the                    
  legislature and is not confirmed, that person is not                         
  eligible for appointment to that board.  That rule does not                  
  apply in the case of Mr. Polley, he explained.  Mr. Polley                   
  would be eligible for reappointment, in his opinion.                         
                                                                               
  MR. LUCKHAUPT referred to the attorney general's opinion,                    
  stated at the previous meeting, which held that Mr. Polley's                 
  name was properly submitted and was before the legislature,                  
  so it would be viewed as a rejection were his name not taken                 
  up and confirmed.                                                            
                                                                               
  MR. LUCKHAUPT told the committee that regardless of what it                  
  does, any name the full House wants to consider will be                      
  considered and is eligible to be considered.                                 
                                                                               
  Number 355                                                                   
                                                                               
  VICE CHAIRMAN HUDSON repeated his suggestion that the                        
  committee go along with Representative Bunde's motion to                     
  advance the name of Mr. Didrickson for confirmation, but                     
  also cover that action with a legal opinion explaining that                  
  Mr. Polley's name was not taken up and was not denied.                       
  This, he said, would leave open the possibility for Mr.                      
  Polley to be appointed to the board at another time.                         
                                                                               
  CHAIRMAN WILLIAMS referred to a draft letter for that                        
  purpose prepared by committee staff, and asked for comments                  
  on that from Ms. Odlund of the Department of Law.                            
                                                                               
  Number 370                                                                   
                                                                               
  MARJORIE ODLUND, ASSISTANT ATTORNEY GENERAL, said her office                 
  is basically holding that Mr. Didrickson is not before the                   
  legislature at all to be acted on.  Only Mr. Polley is                       
  properly put before the legislature for confirmation, she                    
  said.  Mr. Didrickson, she said, was in a nomination status,                 
  which she said was not a vested right and, therefore, the                    
  removal for cause provisions do not apply.  Any action taken                 
  on Mr. Didrickson, according to the Department of Law, would                 
  be a null and void action.                                                   
                                                                               
  Number 387                                                                   
                                                                               
  REPRESENTATIVE CARNEY commented that the best way to resolve                 
  the dispute would be for the committee to let both names go                  
  before the full body, as Representative Finkelstein had                      
  suggested.                                                                   
                                                                               
  Number 394                                                                   
                                                                               
  REPRESENTATIVE BUNDE understood that both names would go                     
  forward, but wanted to ensure that both names did not go                     
  forward with the committee members' endorsement.  He felt                    
  the governor was trying to circumvent the process and he did                 
  not want to endorse that.  He wanted it to be clear that                     
  only one person was properly before the committee, and that                  
  the other name was not.  He suggested that because the                       
  attorneys representing the legislature held that the name                    
  properly before the legislature was that of Mr. Didrickson,                  
  the committee should heed that advice.                                       
                                                                               
  REPRESENTATIVE BUNDE noted that the attorney general's                       
  office had another client, the governor, whose interests                     
  they represent.  He added that it was not his intent to                      
  reject Mr. Polley, which would be the effect of taking up                    
  Mr. Polley's name and not confirming him, but to act on the                  
  legal opinion in the best interest of the legislature.                       
                                                                               
  Number 408                                                                   
                                                                               
  CHAIRMAN WILLIAMS explained to the committee that the letter                 
  of explanation would accompany the committee reports that go                 
  to the full body for confirmation.                                           
                                                                               
  Number 413                                                                   
                                                                               
  REPRESENTATIVE GREEN differed in his agreement with the                      
  opinion of the respective attorneys.  He said that if two                    
  attorneys present different views, ethics would not allow                    
  them to just find a rendering for their particular clients.                  
  Because there are two opposing legal views, the committee                    
  should not be bound to one of them just because the                          
  legislature happens to have an attorney who says it should                   
  be that way.                                                                 
                                                                               
  REPRESENTATIVE GREEN commented that the fact that the                        
  committee had Mr. Didrickson as a nominee, but he was never                  
  acted upon, does not place him in any higher position than                   
  Mr. Polley.  If the committee moves only on Mr. Didrickson's                 
  name, he suggested that the letter of explanation                            
  accompanying the committee report include a minority view.                   
  He explained that this would be so the legislators                           
  considering confirmation on the floor would not be guided                    
  only by one opinion.                                                         
                                                                               
  Number 449                                                                   
                                                                               
  REPRESENTATIVE FINKELSTEIN suggested the committee could                     
  make everyone satisfied with the process by voting on both                   
  names and then voting on the letter.  While he did not                       
  necessarily agree with the opinion of the letter, he felt it                 
  represented a viewpoint well portrayed in committee.  The                    
  minority view would be a good idea, he said.                                 
                                                                               
  Number 460                                                                   
                                                                               
  REPRESENTATIVE BUNDE, in respect to Representative Green's                   
  comments, said that the matter of who employs an attorney                    
  does have an effect on the legal opinion presented.  The law                 
  is something reasonable people can disagree upon, he said,                   
  and added that the legal opinion from the legislative                        
  attorney does have the best interest of the legislature at                   
  heart.                                                                       
                                                                               
  Number 471                                                                   
                                                                               
  REPRESENTATIVE CARNEY believed Mr. Didrickson had the                        
  advantage in that he had already been serving as a member of                 
  the Board of Game.                                                           
                                                                               
  REPRESENTATIVE GREEN stressed the importance of the process,                 
  which is to have a nomination made by the governor and                       
  confirmed by the legislature.  He felt that the committee's                  
  actions seemed to be saying to the governor that the                         
  legislature was taking exception to his wishes.  If the                      
  governor nominates someone or temporarily fills a position,                  
  Representative Green said the governor should have the                       
  prerogative to withdraw that name and nominate someone else.                 
                                                                               
  Number 483                                                                   
                                                                               
  CHAIRMAN WILLIAMS remarked that this discussion showed why                   
  the legislature has attorneys available to address these                     
  issues. He tended to agree with the legislative attorney,                    
  that Mr. Didrickson's name was before the legislature and                    
  his seat was not vacant for Mr. Polley to be appointed to.                   
  He added that the Constitution provides for protection of                    
  the board process so that a governor cannot play games by                    
  filling seats and then taking those individuals out before                   
  the legislature can act on confirmation.  He pointed out the                 
  potential for abuse if a governor moves appointees on and                    
  off a board according to how they might vote on any                          
  individual issue.                                                            
                                                                               
  CHAIRMAN WILLIAMS asked the committee to review the draft                    
  letter and discuss it.                                                       
                                                                               
  Number 510                                                                   
                                                                               
  REPRESENTATIVE FINKELSTEIN commented that it was a good                      
  letter and an important part of the committee's                              
  deliberations.  He said that once the committee had acted on                 
  the confirmations, it should also act on the letter.  He did                 
  not share the legal opinion in the letter, but felt the                      
  letter was well-written and presents a good argument to                      
  present to the full body.                                                    
                                                                               
  VICE CHAIRMAN HUDSON remarked that the letter could be                       
  reduced.                                                                     
                                                                               
  REPRESENTATIVE FINKELSTEIN proposed a substantive change:                    
  Adding some acknowledgment at the end of the letter, that if                 
  Mr. Didrickson's name was turned down, then Mr. Polley's                     
  name could be considered for confirmation.                                   
                                                                               
  Number 529                                                                   
                                                                               
  VICE CHAIRMAN HUDSON referred to a conversation he and the                   
  chairman had had with the governor, at which the governor                    
  took the position that his appointment of Mr. Didrickson was                 
  an interim appointment, and was never completed because the                  
  name was never submitted to the legislature.  Vice Chairman                  
  Hudson suggested the letter should reflect the governor's                    
  stand.                                                                       
                                                                               
  Number 536                                                                   
                                                                               
  REPRESENTATIVE CARNEY recommended that the committee members                 
  read the relevant statute carefully.  He said the statute                    
  said simply that the governor makes the appointment, and                     
  that appointment is then subject to confirmation by the                      
  legislature.  He noted that the statute did not say anything                 
  about interim appointments.                                                  
                                                                               
  REPRESENTATIVE BUNDE remarked that this issue was not a                      
  discussion about the qualifications of the two individuals,                  
  but about the process for checks and balances.                               
                                                                               
  Number 550                                                                   
                                                                               
  VICE CHAIRMAN HUDSON reminded the committee that they could                  
  each write their individual opinions on the committee                        
  report, which would be read across at the time of the joint                  
  confirmation session.  To the assistant attorney general, he                 
  asked what problems would be created if both names went to                   
  the full body, and then Mr. Didrickson was not confirmed but                 
  Mr. Polley was confirmed.                                                    
                                                                               
  Number 567                                                                   
                                                                               
  MS. ODLUND said this would not create a problem at all                       
  because this would create the outcome the attorney general's                 
  office advocated.                                                            
                                                                               
  VICE CHAIRMAN HUDSON noted that the legislative attorney had                 
  held the opinion that once Mr. Didrickson was appointed,                     
  that act constituted submission of the name to the                           
  legislature.                                                                 
                                                                               
  REPRESENTATIVE GREEN referred to the removal for cause                       
  provision, and asked whether it applied to a board member                    
  once confirmed, or after the appointment was made.                           
                                                                               
  Number 581                                                                   
                                                                               
  MR. LUCKHAUPT explained that it was his opinion that the                     
  removal provisions attach at the time an appointment is                      
  made.  The Constitution, he said, does not say anything                      
  about nominations.  In fact, he explained, the first draft                   
  of the Constitution at the Constitutional Convention                         
  included the language "nominate and appoint," with the idea                  
  that nomination was embodied in the Constitution.  That                      
  language was taken out, he said, and the Constitution was                    
  left with the language applying only to appointment.                         
                                                                               
  MR. LUCKHAUPT referred also to Article III, Section 27, that                 
  was put into the constitution, which said the governor could                 
  make recess appointments, or appointments while the                          
  legislature was not in session.  Those appointments, he                      
  said, are like any other appointment, except that they last                  
  as long as the legislature says they last.  Alaska Statute                   
  39.05.080, he added, was adopted by the legislature and says                 
  those appointments last until the person is confirmed or not                 
  confirmed.  To apply the removal provisions just to those                    
  who have been confirmed by the legislature, he said, invites                 
  the potential for abuse.                                                     
                                                                               
  MR. LUCKHAUPT could see no distinction between when the                      
  appointing authority performs the last act by appointing the                 
  person, and the legislature's taking action by confirming or                 
  not confirming.  The system contemplates an orderly                          
  progression of the governor appointing someone during the                    
  interim, that person taking office and being subject to the                  
  removal for cause provisions, and then the governor                          
  submitting the name to the legislature.  He explained that                   
  his legal opinion has to do with what happens if the                         
  governor fails to submit the name.                                           
                                                                               
  Number 620                                                                   
                                                                               
  MR. LUCKHAUPT cautioned that adopting the governor's view on                 
  this issue opens the potential for abuse of the process.  He                 
  remarked that at the previous meeting, Barbara Blasco of the                 
  attorney general's office had admitted to the committee that                 
  there was the potential for abuse and that it was a very                     
  likely potential that if Mr. Polley was confirmed he would                   
  not be able to take office until the end of the legislative                  
  session.  He concluded that those remarks had been in                        
  recognition of the argument that removal for cause provision                 
  attaches at the time of appointment.  That recognition was a                 
  change in the attorney general's position from previous                      
  years, he added.                                                             
                                                                               
  MR. LUCKHAUPT stressed that it was important for the                         
  committee to know that the removal for cause provision was                   
  established to protect certain boards from political abuse                   
  or manipulation, and to create continuity.  He reiterated                    
  that the provision does not apply to all boards, but it does                 
  apply to the Board of Game.                                                  
                                                                               
  Number 644                                                                   
                                                                               
  MS. ODLUND said the attorney general's office feels that                     
  until an appointee has a vested right in office, which would                 
  be after confirmation, he or she is nothing but a nominee.                   
  The removal for cause provision applies, she added, only to                  
  vested members of a board.  Looking at the history of the                    
  Constitution, she said, it is clear that the power of the                    
  governor for board appointments is very broad.  If the                       
  governor has not actively presented a nominee to the                         
  legislature, that interim appointee is not before the                        
  legislature, she stressed.                                                   
                                                                               
  MS. ODLUND urged the committee to concur with the attorney                   
  general's position that the removal for cause provision does                 
  not attach until a nominee is confirmed and vested as a                      
  member of the board.                                                         
                                                                               
  REPRESENTATIVE BUNDE asked both attorneys if, in their                       
  reading of the statutes, there was any provision for                         
  temporary appointments, particularly to the game board.                      
                                                                               
  MR. LUCKHAUPT replied that there was no such thing that he                   
  was aware of.  He remarked on a provision in the                             
  Constitution as well as in [AS] 39.05.080 which talks about                  
  interim appointments to all boards and commissions.  He                      
  noted that it simply meant that the governor must be allowed                 
  to make appointments during the legislative interim.                         
                                                                               
  Number 675                                                                   
                                                                               
  REPRESENTATIVE BUNDE then asked whether interim was also a                   
  synonym for "temporary" and not only a reference to the                      
  period when the legislature is not in session.                               
                                                                               
  MR. LUCKHAUPT explained that interim is used in the context                  
  of referring to the period between sessions of the                           
  legislature in recognition of the fact that appointments                     
  need to be made year round.  If this provision was not                       
  there, he said, various boards and commissions might have to                 
  shut down for a part of the year while the legislature was                   
  not available to confirm new members.                                        
                                                                               
  REPRESENTATIVE BUNDE asked if there was any statutory                        
  provision which allowed the governor to do what he had done                  
  in the case of Mr. Didrickson and Mr. Polley.                                
                                                                               
  Number 686                                                                   
                                                                               
  MR. LUCKHAUPT answered that in his opinion, there was no                     
  statutory authority for the governor's removal of Mr.                        
  Didrickson from the board, effective April 5.  He added that                 
  [AS] 39.05.080 is clear in saying the governor shall submit                  
  the names of those that were appointed who have not yet been                 
  confirmed.                                                                   
                                                                               
  REPRESENTATIVE BUNDE then addressed to Ms. Odlund the same                   
  question regarding statutory authorization of the governor.                  
                                                                               
  MS. ODLUND replied that in [AS] 39.050.080, any appointment                  
  made between sessions that has not been actively presented                   
  is an interim appointment by definition.  Until that person                  
  is confirmed, she said, they can serve on a temporary status                 
  as a nominee only.  She said the attorney general's office                   
  feels it is wrong to presume that [AS] 39.05.080(a) creates                  
  an automatic presentment simply because the governor has                     
  made an appointment.                                                         
                                                                               
  REPRESENTATIVE BUNDE asked whether the question had arisen                   
  in other situations.                                                         
                                                                               
  TAPE 93-44, SIDE B                                                           
  Number 000                                                                   
                                                                               
  MS. ODLUND said it had not happened where the appointments                   
  had been made by one governor, but that there was an                         
  instance between Governor Cowper and Governor Hickel in an                   
  appointment to the Alaska Public Utilities Commission.                       
  Before Governor Cowper's appointee was confirmed, Governor                   
  Hickel replaced him with his own nominee, she explained.                     
                                                                               
  Number 020                                                                   
                                                                               
  MR. LUCKHAUPT noted that there had also been other instances                 
  between an outgoing and an incoming governor.  He agreed                     
  that there is potential for abuse in that area.  He also                     
  referred to the 1990 case where Governor Cowper made an                      
  appointment before leaving office which would not be                         
  confirmed until after the new governor took office.  The                     
  attorney general's opinion on the question goes back to the                  
  Rod Pegues case in 1977 or 1979.  Litigation had occurred in                 
  one case, where Michael Whitehead was appointed to the                       
  Commercial Fisheries Entry Commission in the Hammond-                        
  Sheffield transition.  The state settled that case in Mr.                    
  Whitehead's favor and paid him salary and damages.  He noted                 
  that these cases can cost the state a lot of money if they                   
  go to court.                                                                 
                                                                               
  Number 125                                                                   
                                                                               
  REPRESENTATIVE CARNEY commented that Mr. Didrickson had been                 
  serving as a member of the game board when he was asked to                   
  step down.  When Mr. Didrickson realized that he was given                   
  no cause for his removal, and that by accepting that, he                     
  might be perceived as agreeing that he had done something                    
  wrong, he refused to step down voluntarily, Representative                   
  Carney said.  If the legislature did not confirm Mr.                         
  Didrickson, he added, people might assume there was cause,                   
  and Mr. Didrickson's reputation and personal concerns should                 
  be considered.                                                               
                                                                               
  REPRESENTATIVE BUNDE agreed that consideration should not be                 
  taken lightly.  An overriding consideration, he said, was                    
  the checks and balances within state government.  What                       
  happens in this instance would set a precedent for future                    
  behavior, he explained, and added that he sees the precedent                 
  in this case as being different from those cases where there                 
  were changes in appointments between an outgoing and an                      
  incoming governor.  He did not favor sending both Mr.                        
  Didrickson's and Mr. Polley's names forward, because only                    
  one name is legally before the committee, and he did not                     
  want the committee to appear to be endorsing two candidates.                 
                                                                               
  REPRESENTATIVE CARNEY reminded the committee that there was                  
  a motion before them to move four names forward, and                         
  suggested it was time to vote on that motion.                                
                                                                               
  Number 180                                                                   
                                                                               
  REPRESENTATIVE FINKELSTEIN suggested the committee take up                   
  the names of the appointees one at a time, because there was                 
  no legal problem with the other appointees.  In the end, all                 
  the names would be taken up on the floor, but the                            
  recommendations of the committee, even if they are negative,                 
  will be before the full joint session.  The choice before                    
  the committee members, he said, was whether they express                     
  their views on the issue of whose name is properly before                    
  the legislature through their votes on the committee report                  
  form, or through the letter drafted to accompany those                       
  committee reports to the floor.                                              
                                                                               
  Number 219                                                                   
                                                                               
  REPRESENTATIVE FINKELSTEIN planned to use his vote to                        
  indicate his views on individual people, and the letter as                   
  the committee's view on who is properly before the                           
  legislature.                                                                 
                                                                               
  REPRESENTATIVE BUNDE remarked that by voting on Mr. Polley,                  
  it would seem to be an endorsement of the view that his name                 
  is properly before the legislature, and he did not want to                   
  vote on Mr. Polley.                                                          
                                                                               
  REPRESENTATIVE FINKELSTEIN reiterated that the letter lays                   
  out the committee's position on that process, so if the                      
  letter is supported, that position would be on record.                       
                                                                               
  Number 229                                                                   
                                                                               
  CHAIRMAN WILLIAMS explained that what the committee would do                 
  would be to take up each committee report on the individual                  
  appointees separately.  He read the text of the committee                    
  report, which indicated that the Resources committee                         
  considered the appointment of each member, and the                           
  recommendations of the committee members could be indicated                  
  by signing recommend, do not recommend, or no                                
  recommendation.  He asked members if that process of taking                  
  up the names individually were acceptable to them.                           
                                                                               
  Number 239                                                                   
                                                                               
  REPRESENTATIVE BUNDE AMENDED his MOTION to take up the names                 
  individually.                                                                
                                                                               
  CHAIRMAN WILLIAMS said the name of Anne Ruggles would be                     
  taken up first.                                                              
                                                                               
  VICE CHAIRMAN HUDSON MOVED that the name of Anne Ruggles be                  
  transmitted for consideration by the joint House and Senate                  
  with individual recommendations.  He asked unanimous                         
  consent.                                                                     
                                                                               
  CHAIRMAN WILLIAMS asked if there were any objections.                        
  Hearing none, the MOTION PASSED.                                             
                                                                               
  REPRESENTATIVE BUNDE MOVED that the name of Roger Huntington                 
  be advanced for confirmation to the Board of Game with                       
  individual recommendations.  He asked unanimous consent.                     
                                                                               
  CHAIRMAN WILLIAMS asked if there were any objections.                        
  Hearing none, the MOTION PASSED.                                             
                                                                               
  VICE CHAIRMAN HUDSON MOVED to advance the name of Susan                      
  Entsminger for confirmation to the Board of Game with                        
  individual recommendations.  He asked unanimous consent.                     
                                                                               
  CHAIRMAN WILLIAMS asked if there were any objections.                        
  Hearing none, the MOTION PASSED.                                             
                                                                               
  Number 269                                                                   
                                                                               
  CHAIRMAN WILLIAMS announced the committee would next take up                 
  the name of Jack Didrickson for confirmation to the Board of                 
  Game.  He asked the wishes of the committee.                                 
                                                                               
  REPRESENTATIVE BUNDE MOVED that the name of Jack Didrickson                  
  be advanced with individual recommendations.  He asked                       
  unanimous consent.                                                           
                                                                               
  CHAIRMAN WILLIAMS asked if there were any objections.                        
  Hearing none, the MOTION PASSED.                                             
                                                                               
  VICE CHAIRMAN HUDSON MOVED to advance the name of Ernie                      
  Polley with individual recommendations, including the letter                 
  explaining the legal concerns of the committee.                              
                                                                               
  CHAIRMAN WILLIAMS asked if there were any objections.                        
                                                                               
  REPRESENTATIVE GREEN OBJECTED, noting that he felt sending                   
  the letter that way would bias the rest of the legislature                   
  who had not had the opportunity to hear the testimony of the                 
  attorneys who had explained their legal opinions.                            
                                                                               
  REPRESENTATIVE FINKELSTEIN suggested the committee take up                   
  Mr. Polley's name first, and then act on the letter                          
  separately.                                                                  
                                                                               
  VICE CHAIRMAN HUDSON AMENDED his MOTION to simply advance                    
  the name of Mr. Polley for confirmation to the Board of                      
  Game.                                                                        
                                                                               
  Number 310                                                                   
                                                                               
  CHAIRMAN WILLIAMS asked if there were any objections.                        
  Hearing none, the MOTION PASSED.                                             
                                                                               
  CHAIRMAN WILLIAMS referred to the letter of explanation of                   
  the legal questions surrounding the appointments of Jack                     
  Didrickson and Ernest Polley to a position on the Board of                   
  Game.  He noted that the letter is in conceptual draft form.                 
  He recommended that the letter be revised by committee staff                 
  to its final form by Friday, April 16.  He asked if there                    
  was any discussion on the contents of the letter.                            
                                                                               
  Number 329                                                                   
                                                                               
  REPRESENTATIVE FINKELSTEIN commented that the letter was                     
  well-written, but could be shortened somewhat.  He noted                     
  that it clearly expressed one viewpoint, but added that he                   
  was not sure the whole committee agreed on that viewpoint.                   
  He felt the committee could vote on the letter now, as the                   
  conceptual basis for the final draft.  He said the letter                    
  should reflect the majority and minority views of the                        
  committee.                                                                   
                                                                               
  CHAIRMAN WILLIAMS asked for a motion.                                        
                                                                               
  VICE CHAIRMAN HUDSON MOVED to transmit the letter for the                    
  full consideration of the legislature with the committee                     
  reports on the Board of Game appointees.                                     
                                                                               
  CHAIRMAN WILLIAMS asked if there were any objections.                        
                                                                               
  REPRESENTATIVE FINKELSTEIN asked for clarification on                        
  whether the letter would constitute an endorsement by the                    
  full committee of the majority legal opinion.  He noted that                 
  both he and Representative Green had differences of opinion                  
  with the view expressed in the letter.                                       
                                                                               
  VICE CHAIRMAN HUDSON commented that given the differing                      
  legal views presented to the committee, the committee                        
  members could indicate their positions on the legal question                 
  when signing the committee reports, as he had.  He noted                     
  that he had signed "do not confirm" on Mr. Didrickson's                      
  report, and on Mr. Polley's, he signed "confirm if he is                     
  legally before us."                                                          
                                                                               
  REPRESENTATIVE FINKELSTEIN remarked that the letter seemed                   
  to contradict what Vice Chairman Hudson said.  The letter                    
  supports the view that only Mr. Didrickson's name is legally                 
  before the legislature, he explained.  He said the letter                    
  should not be sent if it only reflects one view.                             
                                                                               
  Number 397                                                                   
                                                                               
  VICE CHAIRMAN HUDSON suggested the committee hold the letter                 
  until the next meeting in order to re-draft the letter to                    
  reflect what the legal dilemma is and that the committee                     
  members did not agree on which view was correct.                             
                                                                               
  REPRESENTATIVE FINKELSTEIN noted that this would allow the                   
  whole legislative body to know the full legal question at                    
  stake.                                                                       
                                                                               
  CHAIRMAN WILLIAMS agreed that the letter could be revised to                 
  reflect the difference of legal opinions, for consideration                  
  on Friday, April 16, 1993.                                                   
                                                                               
  CHAIRMAN HUDSON suggested the letter from the committee                      
  could even have the two legal opinions attached when the                     
  letter is transmitted.                                                       
                                                                               
  REPRESENTATIVE FINKELSTEIN agreed this might work, but the                   
  primary concern was that it be clear to the rest of the                      
  legislature what the two legal opinions are.                                 
                                                                               
  Number 429                                                                   
                                                                               
  VICE CHAIRMAN HUDSON WITHDREW his MOTION to advance the                      
  letter with the confirmation committee reports.                              
                                                                               
  ANNOUNCEMENTS                                                                
                                                                               
  Number 432                                                                   
                                                                               
  CHAIRMAN WILLIAMS announced that on Friday, April 16, the                    
  committee would hear HB 182 and HB 183, relating to a                        
  transportation corridor between Fairbanks and Nome.  He also                 
  reminded committee members that on Saturday, April 17, from                  
  10:00 a.m. to 2:00 p.m., the committee would hold a                          
  statewide teleconference hearing to take public testimony on                 
  HB 238, the oil spill response fund bill sponsored by                        
  Representative Green.  He told members copies of a draft                     
  committee substitute prepared by Representative Green for                    
  HB 238 were available for members' review.                                   
                                                                               
  ADJOURNMENT                                                                  
                                                                               
  There being no further business to come before the House                     
  Resources Committee, Chairman Williams adjourned the meeting                 
  at 9:35 a.m.                                                                 

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