ALASKA STATE LEGISLATURE  LEGISLATIVE COUNCIL   DECEMBER 14, 2023  1:00 PM   MEMBERS PRESENT  Senator Elvi Gray-Jackson, Chair  Representative Kevin McCabe, Vice Chair  Senator Click Bishop  Senator Matt Claman  Senator Lyman Hoffman  Senator Jesse Kiehl  Senator Donny Olson  Senator Bert Stedman (alternate)  Senator Gary Stevens  Representative Bryce Edgmon  Representative Sara Hannan  Representative Craig Johnson  Representative Dan Saddler  Representative Cathy Tilton    MEMBERS ABSENT  Representative George Rauscher    OTHER MEMBERS PRESENT  None    AGENDA  APPROVAL OF AGENDA  APPROVAL OF MINUTES  COMMITTEE BUSINESS EXECUTIVE SESSION  OTHER COMMITTEE BUSINESS    SPEAKER REGISTER  Jessica Geary, Executive Director, Legislative Affairs  Agency (LAA)  JC Kestel, Procurement Officer, LAA  Kris Curtis, Legislative Auditor  Megan Wallace, Chief Counsel, Legal Services, LAA      I. CALL TO ORDER    1:04:46 PM  CHAIR GRAY-JACKSON called the Legislative Council meeting  to order at 1:04 pm on December 14, 2023, in the Anchorage  Legislative Office Building. Present at the call were:  Senators Bishop, Claman, Gray-Jackson, Kiehl, Olson,  Stedman, Stevens; Representatives Hannan, Johnson, McCabe,  Saddler, Tilton.    Twelve members present.    Representative Edgmon joined the meeting at 1:15 pm;  Senator Hoffman joined the meeting at 1:58 pm.    II. APPROVAL OF AGENDA     1:06:15 PM  VICE CHAIR MCCABE moved that Legislative Council approve  the agenda as presented.    The agenda was approved without objection.    III. APPROVAL OF MINUTES    1:06:34 PM  VICE CHAIR MCCABE moved that Legislative Council approve  the minutes for November 17, 2023, as presented.     The minutes were approved without objection.    IV. COMMITTEE BUSINESS EXECUTIVE SESSION    CHAIR GRAY-JACKSON stated the Council would go into  Executive Session to discuss A Special Audit of the  Department of Law, Spending on Contracts related to Janus;  a contract for the Terry Miller Building HVAC Control  System; discussion of office space in Anchorage related to  the Office of Victims Rights; and a brief discussion about  the Assembly Building Apartments.     1:07:27 PM  VICE CHAIR MCCABE moved that Legislative Council go into  Executive Session under Uniform Rule 22(B)(1), discussion  of matters, the immediate knowledge of which would  adversely affect the finances of a government unit and 22  (B)(3), discussion of a matter that may, by law, be  required to be confidential. The following individuals may  remain in the room or online during Executive Session:  Jessica Geary, Megan Wallace, Emily Nauman, Marie Marx,  Hilary Martin, Santé Lesh, JC Kestel, Ernest Daigle, Molly  Kiesel, Serge Lesh, Dottie Shook, Shay Wilson, Kris Curtis,  Shane Hooten, Dylan Bratlie, any legislators not on  Legislative Council, and any staff of Legislative Council  members.    1:08:23 PM  A roll call vote was taken.    YEAS: Senators Bishop, Claman, Gray-Jackson, Kiehl, Olson,  Stedman, Stevens; Representatives Edgmon, Hannan, Johnson,  Saddler, Tilton, McCabe    NAYS: None     The motion passed 13-0.    Prior to Council going into Executive Session, at the  request of Chair Gray-Jackson, Vice Chair McCabe modified  the motion to allow Micheal Chadwick, Legislative Audit, to  remain in the room for Executive Session. There was no  objection to this modification.     1:09:40 PM  Council went into Executive Session.     2:35:24 PM  Council came out of Executive Session.    A roll call vote was taken to establish a quorum.    YEAS: Senators Bishop, Claman, Gray-Jackson, Hoffman,  Kiehl, Olson, Stevens; Representatives Edgmon, Hannan,  Johnson, Saddler, Tilton, McCabe     Thirteen members present.    2:36:44 PM  A. Legal update regarding A Special Audit of the Department  of Law, Spending on Contracts Related to Janus    2:37:05 P M  VICE CHAIR MCCABE moved and asked Legislative Council,  under the authority of AS 24.20.060(4)(F), authorize a  contract for legal services, not to exceed $100,000 to  undertake litigation on behalf of the Legislature regarding  matters described in A Special Audit of the Department of  Law, Spending on Contracts related to Janus dated May 19,  2023, and further moved that Legislative Council authorize  the Chair to give direction to Legislative Legal Services  and outside legal counsel regarding the litigation.    CHAIR GRAY-JACKSON objected for the purpose of discussion  and asked Ms. Curtis, Legislative Auditor, to summarize the  issue and that Legal Services be available for questions.    KRIS CURTIS, Legislative Auditor, stated that the Division  of Legislative Audit (DLA) was asked to perform an audit on  the Department of Laws spending on contracts related to  Janus. That audit was released last month and is available  to the public on the DLA website. She said she would  provide an overview of the audits conclusions and the  recommendation, and began by saying this audit was directed  to identify all contracts entered into by the Department of  Law for Janus-related services, report on the services  provided under the contracts and the amount expended, and  determine whether spending for Janus-related services  violated State law.    The audit's opinions on whether the Legislatures  restrictive Civil Divisions appropriations were legally  constructed and whether Department of Laws expenditures on  matters related to Janus were allowable for State law are  based on an evaluation of opposing legal arguments: one  legal argument made by Legislative Legal Services and one  made by the Attorney General. The basis for the audits  opinion are included in the audit report, however, a final  legal determination can only be made by the appropriate  court. Ms. Curtis said it was her opinion that the  Legislature, through constructing the Department of Laws  FY 21 and FY 22 Civil Division appropriations with specific  limitations, legally restricted the Department of Laws  ability to contract with outside counsel for Janus-related  matters. She said that in other words, she believed  Legislative Legal Services arguments were stronger that  the appropriations were not a violation of the  Constitutions confinement clause or an improper  encroachment of the separation of powers. She said she also  concluded that the Department of Laws decision to pay  outside counsel for services related to Janus from an  appropriation that expressly prohibited those expenditures  likely violated State law. Further, the audit concluded  that the appropriation language that limited expenditures  on specific legal cases was perceived by some as a  legislative attempt to inappropriately influence the  Attorney General's actions and, as such, it increases the  risk of litigation. Ms. Curtis said that the audit had one  recommendation, which was for the Legislature to consider  whether judicial review and/or ratification is necessary.  Given that the audit concluded that the Civil Divisions  restricted appropriations were likely legally constructed  and the Department of Law disregarded the legislative  restrictions, the Legislature should consider whether  judicial review is necessary. Given the audit concluded the  related expenditures were likely unauthorized, she  recommends the Legislature consider ratifying the  expenditures which would put on record that the Legislature  considers those expenditures as unauthorized. She ended her  testimony by saying that as she understood it, those two  options are mutually exclusive.    VICE CHAIR MCCABE stated his objection to the motion and  expending funds on this issue as he thinks it is  politically driven. He stated the easier path forward would  be to ratify what the Attorney General has done. He said  this proposed action would use a sledgehammer when we could  be using a scalpel.    SENATE PRESIDENT STEVENS stated that while he appreciates  the comments and that it will be expensive, he feels it is  very important that the Legislature protect its  appropriating power. He went on to say its the  Legislatures job to keep control of State spending. He  said the motion stated the cost would be $100,000, but it  is possible it could be more, and if it goes to the Supreme  Court it could be double. He asked Ms. Curtis to help  members understand the cost of this type of litigation.    MS. CURTIS deferred the question to Megan Wallace with  Legislative Legal Services.    MEGAN WALLACE, Chief Counsel with Legislative Legal  Services, stated the motion before Council is for a  contract not to exceed $100,000 and, as Senate President  Stevens noted, there is certainly the potential that this  matter could cost more, particularly if the matter is  appealed to the Alaska Supreme Court. She said should  Council approve this motion, it is likely there will be the  need to request additional funds depending on how the  litigation progresses and the needs of outside counsel.  Overall, purely legal constitutional matters that arise out  of disagreements between different branches of government  generally cost between $100,000 and $150,000 to litigate at  the Superior Court level and an additional $100,000 to  $150,000 at the Supreme Court level.    SENATE PRESIDENT STEVENS thanked Ms. Wallace for the  information and said this is an important principle to  uphold and also important to know that it is possible it  could be more expensive than the current motion states at  $100,000.    SENATOR OLSON asked Ms. Wallace since this is a  constitutional issue, what are the chances the matter will  go to summary judgement and a decision will be made  immediately.    MS. WALLACE stated it is very likely this matter would go  to summary judgement. This is not a matter where facts will  likely be disputed between the parties. She said the audit  is very comprehensive, there is a record of the contracts  and what money was spent, so the parties are unlikely to  dispute matters of fact. These will be purely legal  constitutional issues that are briefed on summary judgement  to the court and the parties will have to decide whether or  not this is a matter to request be expedited. She continued  that if the matter is expedited, there is the potential the  parties could ask for a decision before the end of session,  otherwise the matter would be briefed on summary judgement  based on a scheduling order entered by the court. In  general, if the matter is not expedited, it could take six  months to a year after the case is initiated to get that  order, but it is difficult to predict the exact timing.    SENATOR KIEHL stated he appreciated the motion and will  support it. He said he read the audit and thought it was  extremely thorough and wanted to stress that this is not an  angry lawsuit, just a situation where the Legislature and  the governor have a difference of opinion on where the  constitutional line is, and the Legislature needs to submit  it to the third branch of government. He provided an  example of a past lawsuit (Knowles v. Legislative Council)  that determined, in part, what an Alaska governor may veto  and how that determination has impacted future Alaska  governors. He said this issue is another point of dispute  between the branches and he believes it is appropriate to  take the good faith opinion of Legislative Legal Services  and outside counsel hired by the auditor and the good faith  opinion of the attorney general and send them to the Courts  for a ruling on what the constitution does or does not  allow in what he called a genuine dispute between the  branches of government. He ended by reiterating his support  for the motion.    REPRESENTATIVE EDGMON stated he had given this a lot of  thought, listened to the discussion, reviewed the audit,  and thought the matter was extremely important. He said  having been in the Legislature during previous battles with  the Executive Branch over forward funding of education and  powers of appropriation, while not a lawyer he knows enough  to know there is ambiguity between what is constitutionally  permissible for the Legislature in terms of its  appropriation powers and that precedence is pretty  important in terms of what can happen, not just with the  current governor and administration but future governors  and future administrations. He said the one power the  Legislature has that should be unassailable is the power to  appropriate. He said there are three options: this first is  to do nothing. He said the second option is to wait for a  future budget action to take place that had some  unpredictability tied to it. He then interrupted his  statement to ask if the Legislature did take the  ratification option whether the governor could then veto  that.    MS. WALLACE stated some of the case law on appropriations  is from an old case that attempted to look at what items  are eligible for the governor to veto. We know the governor  cannot strike words to achieve a different purpose and the  governor can only veto an appropriation which is a sum of  money for a particular purpose. This ratification  appropriation alternative that has been discussed would be  an appropriation item that ratifies expenditures that have  already taken place. In her opinion, it would not be  eligible for veto, but we may find ourselves in another  dispute if the governor or the attorney general had a  different opinion.    REPRESENTATIVE EDGMON thanked Ms. Wallace for the  clarification. He said the central question is how to  protect the right of the Legislature to appropriate. The  underlying issue in the Janus decision is separate in this  matter. He said he worries about what future governors can  do and future attempts to take advantage of any sort of  wiggle room in whatever appropriation or allocation. He  also thinks about the cost of doing this, which could be  several hundreds of thousands of dollars, potentially; and  then he thinks about statehood defense and how many  millions that have been spent: five million last year, two  million in his (the Governors) proposed budget, six  million in the coffers before that as he understands it. He  continued that many past governors have requested millions  to protect Alaska in terms of statehood defense and some of  that has also been politically driven and some of that  defense has not reflected the will of the Legislature and  it goes both ways. He said he doesnt see any way he  couldnt support this; that he has to support it to protect  the legislative institution so he will be a yes vote.    VICE CHAIR MCCABE asked what happens if the judge rules  against the Legislature, what happens to the legislative  power of appropriation. Everyone seems certain, based on a  couple of opinions and an audit that the judge is going to  rule that the Legislature has the power of the purse and  what the attorney general did was wrong. What if the judge  doesnt say that? What if the Supreme Court doesnt say  that? He said if that happened would we have given up some  of the power that we have?    SENATOR CLAMAN stated he had the privilege to hear Chief  Justice Roberts speak about the typical case that appears  before the U.S. Supreme Court and observed that almost all  of them involved separation of powers and questions of  powers of the three branches. This lawsuit is  quintessentially a question about the powers of two of the  branches and he thinks it's a good lawsuit to bring to get  a better idea of the parameters of those powers.    There were no additional questions, and the Chair removed  her objection to ask for a roll call vote.    2:54:35 PM  A roll call vote was taken.    YEAS: Senators Bishop, Claman, Gray-Jackson, Hoffman,  Kiehl, Olson, Stevens; Representatives Edgmon, Hannan,  Saddler    NAYS: Representatives Johnson, Tilton, McCabe    The motion passed 10-3.    C. Approval of Terry Miller Building, HVAC Controls     2:55:39 PM  VICE CHAIR MCCABE moved that Legislative Council approve  award of RFP 660 Terry Miller Building HVAC Controls to  Long Building Technologies, Inc., with a not to exceed  contract value of $775,931.00.    CHAIR GRAY-JACKSON objected for the purpose of discussion  and asked Mr. Kestel to speak to the item and answer  questions.    JC KESTEL, Procurement Officer (LAA), said the agency  conducted RFP 660 to solicit qualified proposals for  replacement of the Terry Miller Building HVAC control  system. Two offers were received, the Proposal Evaluation  Committee evaluated the offers and recommended that Long  Building Technologies be awarded the contract.    There was no discussion and Chair Gray-Jackson removed her  objection.     2:57:05 PM  A roll call vote was taken.    YEAS: Senators Bishop, Claman, Gray-Jackson, Hoffman,  Kiehl, Olson, Stevens; Representative Edgmon, Hannan,  Saddler, Tilton, McCabe    NAYS: None     The motion passed 12-0.     2:58:14 PM   Council took a brief at-ease.     2:59:04 PM   Council returned from brief at-ease.    CHAIR GRAY-JACKSON asked if the Council objected to  skipping item V(a) Print Shop Policy, as well as item IV(b)  RFP 664 Lease Office Space in Anchorage.    There were no objections and items V(a) and IV(b)were set  aside.    V. OTHER COMMITTEE BUSINESS    B. Intranet Photo Requirement     2:59:36 PM  VICE CHAIR MCCABE moved Legislative Council approve the  Intranet Photo Policy as presented.    CHAIR GRAY-JACKSON objected for the purpose of discussion  and asked Ms. Geary to speak to the item.    JESSICA GEARY, Executive Director (LAA), said before  members is the Intranet Photo Policy with two proposed  minor changes. The first changes Media Services to LAA  in general in the policy language, and the second change is  to have Media Services accept the photo prior to posting  on the intranet to ensure the photo clearly shows the  individuals face. This policy is before the committee  because of a request made by the Security Subcommittee and  Chief of Security Rayme Vinson. This simple security  measure would require staff and interns have their photos  on the intranet so they can be easily identified by  Security. She said this is a simple policy that states that  if staff do not have their photo taken within five days of  employment or session start, whichever is earlier, their  key card will be revoked. There is also the ability to  submit a recent (within three years) photo instead of  having LAA staff take the photo.    CHAIR GRAY-JACKSON asked for a roll call vote.     3:02:02 PM  A roll call vote was taken.    YEAS: Senators Bishop, Claman, Gray-Jackson, Hoffman,  Kiehl, Olson, Stevens; Representatives Edgmon, Hannan,  Johnson, Saddler, Tilton, McCabe    NAYS: None    The motion passed 13-0.    C. LAA Van Purchase     3:02:57 PM  VICE CHAIR MCCABE moved that Legislative Council authorize  Legislative Affairs to purchase a new van under the State  of Alaska contract with Kendall Ford of Anchorage, with a  not-to-exceed purchase limit of fifty-five thousand  dollars.    CHAIR GRAY-JACKSON objected for the purpose of discussion  and asked Mr. Kestel to speak to the item and answer  questions.    MR. KESTEL, Procurement Officer (LAA), said before members  is a memo requesting to replace a seventeen-year-old van  used for LAA daily operations in Juneau. LAA conducted a  simple RFQ to seek quotes from various dealerships  throughout Alaska as well as out of state. Kendall Ford of  Anchorage, the State of Alaska contracted dealer for the  State equipment fleet, had the lowest quoted price.    CHAIR GRAY-JACKSON removed her objection and asked for a  roll call vote.     3:04:22 PM   A roll call vote was taken.    YEAS: Senators Bishop, Claman, Gray-Jackson, Kiehl, Olson,  Stevens; Representatives Edgmon, Hannan, Johnson, Saddler,  Tilton, McCabe    NAYS: None     The motion passed 12-0.    D. Assembly Building Apartments Update    CHAIR GRAY-JACKSON asked Ms. Geary to update members on the  Assembly Building Apartments and answer any questions.    MS. GEARY reported the Assembly Building Apartments project  is on time and on budget, and there is projected to be  additional savings at the end of the project which would be  used for exterior work next interim; among other things,  the building has concrete windowsills that are in poor  shape and the exterior of the building needs to be  repainted. Capital Office Supply is installing furniture,  and blinds have been installed on the third floor and will  soon be installed on the two remaining floors. LAA has been  busy placing other furnishings and artwork in the  apartments. Juneau Real Estate has been contacting tenants  and offering apartments to nine legislators and twenty  staff. Several prospective tenants dropped off the list,  and four apartments remain to be rented, which she did not  think would be a problem to fill. Tenants should be able to  move in on January 9 because the project is to be completed  and the final inspection is scheduled on January 8.    CHAIR GRAY-JACKSON thanked Ms. Geary and the LAA staff for  all the work that went into completing the Assembly  Building Apartments.     VI. Adjournment    CHAIR GRAY-JACKSON asked members if there were any  questions or comments prior to adjournment.    REPRESENTATIVE EDGMON commented on the requirement for  Multi-Factor Authentication (MFA) on all legislative  devices.    CHAIR GRAY-JACKSON thanked members for attending this  Legislative Council meeting and making meetings a priority.  She also thanked LAA, the Anchorage LIO, the auditors, the  attorney, and her staff, and anyone she may have missed  that contributed to the success of this meeting.     3:08:52 PM  With no further business before the committee, the meeting  was adjourned at 3:08 PM.