HB 6-REMOVING A REGENT  1:34:02 PM CHAIR FRENCH announced the consideration of HB 6. He noted that the committee did not have a quorum and would take no action on the legislation. 1:34:33 PM REPRESENTATIVE MAX GRUENBERG, sponsor of HB 6, stated that the bill is in response to an incident several years in which a member of the University of Alaska (UA) Board of Regents was indicted and subsequently convicted of a felony. The board found that other than the impeachment process, it did not have a procedure to remove or suspend the member. This is potentially a serious problem if the Board of Regents needs a full quorum, he said. REPRESENTATIVE GRUENBERG explained that Section 1 pertains to legislative findings and purposes and indicates why establishing this procedure is important and also constitutional. Section 2 adds a new section .155 to AS 14.40 laying out the procedure for the governor to either suspend or remove a regent. It is patterned after the statutory removal procedures for certain other boards. Section 3 - the applicability section - stipulates that the bill applies to all conduct that occurs before, on, or after the effective date. 1:41:32 PM CHAIR FRENCH asked the sponsor to summarize the two legal memorandums in the bill packet. One was dated April 17, 2007 from Jean Mischel, Legislative Counsel with Legal and Research Services, and the other was dated February 2, 2007 from Assistant Attorney General Michael Barnhill with the Department of Law (DOL). REPRESENTATIVE GRUENBERG reviewed the Department of Law response to the question of whether the governor has the authority to remove a member of the UA Board of Regents without cause. Mr. Barnhill's answer was no. He acknowledged that legislative counsel concluded that regents serve at the pleasure of the governor and may be removed at any time, and University of Alaska counsel concluded that a regent may be removed only through impeachment by the Legislature. CHAIR FRENCH asked the sponsor if he crafted the bill in response to the idea that there had to be good cause for removing a regent. REPRESENTATIVE GRUENBERG replied he absolutely did. He reviewed the Legislative Legal Services' response to the question. Ms. Mischel's answer was yes; the governor has the general authority to remove a regent absent cause. She cited the constitutional authority under Article VII, sec 3 and Article III, sec. 26. REPRESENTATIVE GRUENBERG offered his opinion that even if the Board of Regents were to bring a constitutional challenge, a judge would likely favor the process that the bill establishes, particularly since the board has for years failed to act. He asked the record to reflect that the House Judiciary Standing Committee received no response when it informed the Board of Regents that it was considering this kind of legislation. He maintained that HB 6 will avert a potential crisis and ensure that the board can function at full strength. 1:46:57 PM CHAIR FRENCH asked if there was opposition in the House to this particular bill. REPRESENTATIVE GRUENBERG responded that HB 6 passed unanimously in the House. 1:48:47 PM FULLER A. COWELL, Regent, UA Board of Regents, Anchorage, AK, testified in opposition to HB 6. He said the constitution provides impeachment as the method for removing a regent from office and that has served the university well in its near 100- year history. In fact, there has been just one case where a regent did not resign immediately when there was a controversy. In that instance, the regent's attorney advised him not to resign, because it might indicate guilt. The board has 11 members so even in that case it was able to operate effectively and govern the university. MR. COWELL informed the committee that the board was in the process of changing its bylaws to facilitate recommending impeachment when a majority of the members believes it is appropriate. He noted that although the board opposes HB 6, the university discussed with the sponsor several changes to the bill if it does move forward, he said. 1:51:34 PM CHRIS CHRISTENSON, Associate Vice President, State Relations, University of Alaska (UAA), said he was prepared to discuss the changes the Board of Regents propose if the committee were to decide to move the bill forward. CHAIR FRENCH questioned the efficiency of relying on the impeachment process to remove a regent. If an issue came up during the Interim, the Legislature would either have to call itself into special session for an impeachment process or wait until the next 90-day Session to take up the matter. MR. CHRISTENSON replied the board believes that the founders intended the procedure to be impeachment only. Giving the power to anyone else potentially politicizes the Board of Regents and the university in the process. He reiterated that the current process works well and the board's ability to govern is not affected if one member is missing. He highlighted that after the controversy arose in 2007, that regent did not attend meetings or vote. He did not resign because his attorney advised that it would look like an admission of guilt. That was to no damage to the university, he stated. CHAIR FRENCH offered his perspective that it was damaging and embarrassing to the university to have a regent under indictment for embezzlement among other things. The issue dragged on a long time and he was identified as a regent in every news report. MR. CHRISTENSON responded that it was no more embarrassing than when so many legislators were indicted. The Legislature continued to function and it, too, had the ability to impeach those members. 1:55:43 PM MR. CHRISTENSON reviewed the provisions in HB 6 that were of particular concern to the Board of Regents. First, the regents request the removal of Section 1. It suggests the board has the power to do something it has not done and that is why the bill is necessary. AS 14.40.170(b)(1) is cited as granting the authority, but the language is very vague. What the statute essentially does is give the board the authority to regulate its internal operation as a board, which is very different from the explicit authority to remove a constitutional officer. This would override the will of the governor who appointed the regent and the will of the legislature that confirmed him or her. CHAIR FRENCH asked if he would draw a distinction between the words "remove" and "suspend" or if both were problematic. MR. CHRISTENSON replied both are problematic because in both instances someone is prevented from doing the job they were appointed and confirmed to do. In essence, the board is substituting its own political judgment without an explicit grant of statutory or constitutional authority. The second concern relates to Section 2. The new Sec. 14.40.155(a) lays out the conditions under which a governor may suspend a regent, and all but the provision in paragraph (4) are based on proceedings by an independent entity. Paragraph (4) does not belong because it involves a verified complaint of malfeasance or nonfeasance in office under consideration by the governor. In this case the governor could immediately remove the regent without waiting for another entity to act so there is no reason to suspend. He continued that the provision is even more problematic because of its subjectivity and the fact that it may or may not be politically motivated. The regents suggest establishing a process that would be more difficult to manipulate politically, and specifically request removal of paragraph (4). Finally, the regents request that the language in the new Sec. 14.40.155(a)(5) be tightened to apply to a formal allegation or charge by a professional or occupational licensing body alleging or finding a violation of relevant licensing statutes. 2:00:49 PM SENATOR PASKVAN joined the committee. CHAIR FRENCH asked the sponsor if he would like to comment on the testimony from Mr. Cowell and Mr. Christensen. 2:01:23 PM REPRESENTATIVE GRUENBERG offered to work with Mr. Christenson to resolve the problems. He then suggested inserting a statement in the bill that these procedures were in addition to the impeachment procedure. CHAIR FRENCH responded that would be redundant because the impeachment proceedings are in the constitution and nobody would presuppose that they had been done away with. REPRESENTATIVE GRUENBERG said he did not agree with the second suggestion to remove Sec. 14.40.155(a)(4) regarding a verified complaint. CHAIR FRENCH asked if an email to the governor would be sufficient to be a verified complaint. REPRESENTATIVE GRUENBERG said no it would be a formal, sworn document. CHAIR FRENCH suggested he consider changing the term "verified" to "sworn" if his intention was to require a sworn statement. 2:04:54 PM SENATOR COGHILL joined the committee. REPRESENTATIVE GRUENBERG indicated he would like to have a new CS drafted and would try to find accommodation wherever possible. CHAIR FRENCH said he liked the idea of the bill but had some questions about constitutionality. HB 6 was held in committee.