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