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