SB 286-DUTIES AND POWERS OF ATTORNEY GENERAL MR. MARK JOHNSON, representing the Subcommittee on Privatization for the Department of Law (DOL), gave a collective overview of SB 286 and SJR 14. SB 286 emerged from the work of the Subcommittee on Privatization and was introduced by the Senate Judiciary Committee. The bill is an attempt to "re-craft" certain powers of the Attorney General (AG). The most significant part of this legislation is in Section 1(b)(7), perform all other duties required by law [OR WHICH USUALLY PERTAIN TO THE OFFICE OF ATTORNEY GENERAL IN A STATE]; and. Common law powers of the AG may be taken by someone in that position to imply just about anything--this bill clarifies the duties of the AG. There may be powers the AG believes are necessary for carrying out the duties of office, and a way to resolve this may be for the department to come forward and say what it needs and enumerate on that. MR. JOHNSON commented that the second most important item is the effort to redefine where the AG's obligations lie. The law currently states, the AG is the legal advisor of the governor and other state officers. CSSB 286 proposes in section 1, the state, including the governor and other state officers. This is a philosophical difference--an important one. MR. JOHNSON noted that the third item of importance is in section 1(c), The attorney general may, subject to the power of the legislature to make appropriations, settle actions, cases, and offenses under (b) of this section in which the attorney general represents the state and in which the state is a party. Constitutionally in Alaska, an appropriation is required before money is spent. The AG does not settle cases that require new appropriations nor does he make them subject to appropriation. The concept of a settlement term requiring an appropriation and being subject to the legislative power of appropriation does not appear in the law. This is why the Subcommittee on Privatization is proposing that the language in CSSB 286, subsection (c) be added. Number 570 JUDGE THOMAS B. STEWART, retired Superior Court Judge, Secretary of the Constitutional Convention, Senator in the first Alaska State Legislature and Chairman of the State Affairs Committee which wrote the legislation that set up the executive branch, stated he has an immediate concern with section 1 of CSSB 286, (a) The attorney general is the legal advisor of the state, including the governor... It is a mistake to view the AG as representing anything beyond the executive branch. Because the AG's primary duty is to represent the executive branch, it is a conflict of interest for him to be giving advise to the legislature. Each branch of the legislature needs separate counsel because their interests sometimes conflict, and it is especially important that the AG not represent both the governor and the legislature when they are of different parties. The AG is, of necessity, in a conflict position if he seeks to advise the legislature. The language, legal advisor of the state, at least by inference, suggests the AG is legal advisor for both the legislature and the court system. The court system has its own counsel and never calls upon the AG to represent its interest. Number 905 CHAIRMAN TAYLOR noted he has the same concern as Judge Stewart with inserting the language, including the. The AG will have to be true to one side or the other--which side will it be? As concerns the second page of the bill, subject to the power of the legislature to make appropriations...., there have been situations where the governor, through the AG, settled cases where money was appropriated to a new trust that was created solely out of the settlement of a specific case. The money was not appropriated by the legislature even though the funds were due and owing to the State of Alaska. The governor appropriated all the money by creating a mechanism that would disperse those monies as he saw fit and the legislature could find no way in which to affect that settlement. CHAIRMAN TAYLOR noted he is concerned with this type of situation and, at the same time, every case should not have to come back to the legislature for approval--this legislation may makes that necessary. JUDGE STEWART said he has not studied this matter and would be loath to give an opinion. On the face of it though, he does not see a problem with the language, and he is sympathetic with the legislature being the body that determines how state monies will be spent. CHAIRMAN TAYLOR asked how Judge Stewart would amend this legislation to resolve the conflict--will the AG represent the people of the state, the legislature, or the governor? Number 1059 JUDGE STEWART responded the AG should represent the executive branch. The governor is elected by the people to represent them and the AG represents the governor, thus, representing the majority of the people. SENATOR DONLEY asked if the AG has a higher responsibility to the constitution or to the governor. Some governor's have placed the AG in direct conflict with their duty to defend the constitution, and if the AG is serving the people his loyalty will primarily be to the constitution. How does an AG balance his loyalty between his duty to the governor and to the constitution? JUDGE STEWART asked to defer, and stated he will explain his view when the committee is addressing SJR 14. MR. MARK JOHNSON noted he appreciated Judge Stewart's comments regarding the initial proposed amendment and commented that this is an issue the committee needs to reflect on. CHAIRMAN TAYLOR asked Mr. Johnson how he would resolve the conflict of the AG representing both the governor and the state. MR. JOHNSON responded it is the position of DOL that the executive branch already represents the legislature and the judiciary in some matters. Traditionally, if there is a conflict of interest and someone does not call it to the public's attention, the AG will raise the issue and allow the other branch to retain their own counsel. CHAIRMAN TAYLOR asked why the constitutional convention did not include the AG as a constitutionally created officer. JUDGE STEWART responded the legislature had the responsibility to create all departments of the executive branch, and the AG was another department of the executive branch--departments were not created but their functions were described. This is detailed matter that is adapted to being handled by statute. CHAIRMAN TAYLOR noted that in some states the AG is elected to "represent the people," and the governor has separate counsel. Number 1449 SENATOR DONLEY said he would like the committee to consider adding to the duties of the AG, "he or she shall defend the constitution of the State of Alaska against legal challenges." The AG should have a responsibility to say no to the governor if the governor asks him to do something that is in conflict with his duty to the constitution.