ALASKA STATE LEGISLATURE SENATE STATE AFFAIRS COMMITTEE  March 13, 2001 3:35 p.m. MEMBERS PRESENT Senator Gene Therriault, Chair Senator Randy Phillips, Vice Chair Senator Drue Pearce Senator Bettye Davis MEMBERS ABSENT  Senator Rick Halford   COMMITTEE CALENDAR  SENATE BILL NO. 92 "An Act relating to removal of members of the board of trustees of the Alaska Permanent Fund Corporation; and providing for an effective date." MOVED SB 92 OUT OF COMMITTEE SENATE BILL NO. 90 "An Act establishing the Office of Citizenship Assistance; and providing for an effective date." HEARD AND HELD HOUSE CONCURRENT RESOLUTION NO. 6 Requesting the Governor to declare March 18 - 24, 2001, to be Inhalants and Poisons Awareness Week. SCHEDULED BUT NOT HEARD PREVIOUS COMMITTEE ACTION    SB 90 - No previous action recorded. SB 92 - See State Affairs minutes dated 3/01/01. WITNESS REGISTER    Clark Gruening Chairman of the Board of Trustees Alaska Permanent Fund Corporation 217 Second Street Suite 604 Juneau, AK 99801 POSITION STATEMENT: Answered questions on SB 92. Jim Baldwin Assistant Attorney General Department of Law (DoL) P.O. Box 110300 Juneau, AK 99811-0300 POSITION STATEMENT: Testified on SB 92. Jessie R. Pelayo 9023 Long Run Drive Juneau, AK 99801 POSITION STATEMENT: Supports SB 90. Mario K. Lim 3496 Meander Way Juneau, AK 99801 POSITION STATEMENT: Supports SB 90. Mara Kimmel Immigration Attorney 700 Gold Street #3 Juneau, AK 99801 POSITION STATEMENT: Supports SB 90. Robin Bruner Program Director Catholic Social Services No address provided POSITION STATEMENT: Supports SB 90. Andre McLeod No address provided POSITION STATEMENT: Testified against SB 90. ACTION NARRATIVE TAPE 01-12, SIDE A  Number 001 CHAIRMAN GENE THERRIAULT called the Senate State Affairs Committee meeting to order at 3:35 p.m. Present were Senators Phillips, Davis and Chairman Therriault. HCR 6 was scheduled to be heard today, pending referral, but it didn't leave the House so today's meeting will be recessed rather than adjourned and the bill will be heard on March 15, 2001. The first order of business was SB 92. SB 92-REMOVAL OF MEMBERS OF THE PF BOARD  CHAIRMAN THERRIAULT asked Clark Gruening whether anyone from the Permanent Fund Trustee Board was planning to speak to the memo from Mr. Lorensen, attorney with Simpson Tillinghast Sorensen Lorensen & Longenbaugh. CLARK GRUENING, Chairman of the Alaska Permanent Fund Corporation's (APFC) Board of Trustees, said no, the memo speaks for itself and should answer questions raised at the last meeting. CHAIRMAN THERRIAULT said the memo did a concise job of covering the issues raised at the previous meeting. JIM BALDWIN, Assistant Attorney General, Governmental Affairs Section, said SB 92 is not a new issue and that, based on the text of the Alaska Constitution, it raises legal issues. According to the Alaska Constitution, the legislature may, by law, provide for removal by cause for boards or commissions that are at the head of executive agencies or are quasi-regulatory or are quasi-judicial. Since it is specifically stated there, it shouldn't be implicated anywhere else in the legislative or executive article. The APFC isn't quasi-regulatory or judicial, it isn't at the head of the executive branch agency. The argument focuses on separation of powers. SENATOR PEARCE joined the meeting. MR. BALDWIN said, as discussed at the previous meeting, Bradner v. Hammond is the only case that touches on appointment power but it isn't "directly on point". The argument was put forth before the last legislature and he thought the constitutional amendment was evidence that it was accepted. This is a legal position that the office has taken and there is evidence of this in other opinions from prior administrations. CHAIRMAN THERRIAULT said that he read past testimony in addition to Bradner v. Hammond and he agrees that case isn't directly on point because it dealt with legislative confirmation. The discussion last year was centered around there being a continuum of legislative interference in the confirmation process. He can understand the court's ruling because the legislature could insert itself in the process to a greater degree than having the removal for cause language, which would still be an administrative action taken without legislative interaction. He asked Mr. Baldwin to discuss the differences and degree from the viewpoint of the Department of Law. He also asked for a discussion on the Alaska State Pension Investment (ASPI) Board which has similarities and is not quasi- regulatory or quasi-judicial but has a removal for cause clause that hasn't been litigated. He asked whether the position taken by the department when that language was put into statute was that it was likely to be suspect if there was a challenge on constitutional grounds. Number 519 MR. BALDWIN said that Alaska has, by intent, a strong executive branch and the power of appointment is solely an executive power. The Alaska Constitution gives the legislative branch no role, through law making power, in deciding how appointments are made, their duration, and removal. In pre-statehood days, there was government by commission, which had the effect of blunting the power of the federal government, thereby giving more power to local government. Constitutional framers believed there needed to be a change from this arrangement and wanted a strong, centralized, government with boards and commissions under the appointed power of the governor. There would be a check on the appointment power for quasi-judicial, quasi-regulatory or heads of principle departments by providing confirmation hearings. The removal provision, which places the appointee beyond the reach of the removal at pleasure of the governor applies to everything else in the executive branch. Property and liberty rights are another issue because persons with a salary or a property right in an office can't, under the 5th amendment, have that taken away arbitrarily; there must be some due process. As a matter of degree, he thinks it's a skilled legal argument but questions of degree don't always hold sway in a constitutional argument. It is not cut and dried and is, in fact, a point of debate among lawyers that has not yet been tested in an Alaskan court. The argument was made on the ASPI Board, and it subsequently became law against the advice from the Department of Law. There is speculation as to why this happened, but it isn't the only example of a law being enacted even though the constitutionality is arguable. He thought he could probably find several examples in Alaska statute where removal for cause has been applied to a non- quasi-judicial or regulatory board or a board that is not that of an executive agency. The fact that they are there doesn't make them more constitutional. MR. BALDWIN said the constitutional amendment passed by the legislature last session is a significant piece of legislative history for anyone analyzing the issue. "It could be argued that the intent was that they supported that construction." However, trying to prove legislative intent is difficult, at best. CHAIRMAN THERRIAULT said he didn't mean to imply constitutionality just because something similar is in statute. This hasn't, as yet, been tested in court and since there is no similar case with this language it is not known how the court would rule. MR. BALDWIN agreed and said it's an open question in Alaska but DOL believes its argument is contextually supported by the Constitution. If the committee passes SB 92, he noted he had several suggestions to make it a better piece of legislation. CHAIRMAN THERRIAULT said he knew Mr. Baldwin was concerned about a definition for "just cause" but there was no definition in that section of statute addressing the ASPI Board and there is "no need for a definition unless you want to stray from the ordinary court interpretation of the phrase." MR. BALDWIN said you'd be relying on the common law interpretation for the phrase which means the definition is left to judges, attorneys and established precedent. Determining the meaning of "just cause" isn't easy because a citizen might be interpreting one event and the law might be interpreting another event and both are using the term "just cause". Another statute where cause is more specifically stated is AS 16.05 for the Board of Fish and Game. He pointed out a weakness in the legislation is the absence of provision for due process. The language appears to say that a letter is sent stating cause and that's the end of it. However, when someone is removed in that manner they might have the right to a due process hearing, which may be trial like with discovery and an independent third party to make the decision about removal. This can be a very long and complicated process. Removing a board member doesn't just happen, there is a process that must be followed. CHAIRMAN THERRIAULT said that administrative appeals follow the process whereby a division director makes a decision which is reviewed up the chain of authority. If someone is removed for cause it's the Governor, who is at the top of the authority chain, making the decision. Other than asking for a reconsideration, the only option is to take the matter to the court for a decision. Since the process is trial like anyway, why not just take it through the court system? MR. BALDWIN said that, under this legislation, the decision itself would be the Governor's and it's then established that there must be some sort of due process that leads to that decision. That process may be a simple hearing where the individual can come in and try to clear their reputation or something more involved where the individual can come in and there's a record created where the reasons are put on the record and the individual has a chance to rebut those reasons and try to prove their case. Going directly to court is essentially delegating the decision to the judicial branch and the court probably would not allow this, saying that administrative remedies haven't been exhausted. This most probably means that the due process hearings haven't been held. Reading the statute, it appears that the Governor simply writes a letter. If that is the intent of SB 92, then it should be clear on the record that there is no more due process being accorded than just the letter. This would be less than the removal right accorded to a member of the Fish and Game Board or a member of the Regulatory Commission for Alaska both of which are boards with salary, property rights and due process rights. CHAIRMAN THERRIAULT said that in going in that direction, the level of legislative interference with the Governor's process is heightened so the possibility that it would be ruled unconstitutional is also heightened. MR. BALDWIN said Chairman Therriault hit upon the tension between the legal issues at play. The for cause provision intrudes upon the appointment power but the for cause provision that's not spelled out in how it's exercised produces legal problems on the other side of the argument. He wanted it clearly understood that removal for cause isn't as simple as writing a letter. There must be due process in removal for cause. CHAIRMAN THERRIAULT asked for questions from committee members and members of the public. There were none. Committee members had no amendments. The bill has a zero fiscal note. He asked for the will of the committee. SENATOR PHILLIPS moved SB 92 and zero fiscal note from committee with individual recommendations. There were no objections. Number 1405 SB 90-OFFICE OF CITIZENSHIP ASSISTANCE  CHAIRMAN THERRIAULT asked Senator Kelly to introduce the bill and noted that it was his intent to hear public testimony and take up final action on the bill at a later meeting. SENATOR PETE KELLY, sponsor of SB 90, said this bill creates a director position under the Office of the Ombudsman to act as a liaison between new citizens and those studying to become citizens. The many state and private services available to citizens and citizen candidates may be inaccessible due to language, social and cultural barriers. The Office of Citizenship Assistance would respectfully help these individuals while remaining sensitive to their various customs and cultures. CHAIRMAN THERRIAULT asked whether the liaison would function under the ombudsman in an ombudsman capacity. SENATOR KELLY said the director would be a liaison between the ombudsman and the individuals so there is someone to go to in the ombudsman's office that will be more sensitive to cultural and language difficulties. SENATOR PHILLIPS asked whether there are other states with this type of division. SENATOR KELLY said no there aren't. SENATOR PHILLIPS said he has difficulty with this bill because both of his parents are immigrants. SENATOR PEARCE thinks the idea is good but wonders whether this helps interface more with state and local services or federal ones. SENATOR KELLY said it will interface more with state services. He reassured Senator Pearce that this position will not help in the naturalization process, rather it will provide help in locating state and local services. JESSIE R. PELAYO, Filipino Community leader, gave lengthy and heart felt testimony in support of SB 90. The full testimony is available in the bill record. MR. PELAYO, said that in the fall of 1989, there was a statewide meeting of Filipino organizations held in Anchorage to discuss solutions to the difficulties Filipino citizen candidates encounter. He found that the difficulties he and his family and friends experienced in Juneau were common in large and small communities across the state. Until the City and Borough of Juneau passed a resolution requesting a permanent immigration officer, immigration problems were commonplace, expensive and lengthy. He went on to outline discriminatory employment practices, difficulty understanding legal issues and housing, medical and educational problems. In closing, Mr. Pelayo urged committee members to support SB 90 so that naturalized citizens would have a place to turn when faced with injustices resulting from a difference in cultures. MARIO D. LIR, Pastor of the Word of Life Christian Center, testified in support of SB 90. As a pastor, he has repeatedly seen the problems naturalized citizens have assimilating with a different culture. The State of Alaska has never before addressed these needs and it is past time for them to do so. Many of these individuals are productive state employees so it is the state's responsibility to help them with difficulties associated with changing countries and cultures. PASTOR LIR also outlined specific immigration, legal, medical and language problems faced by Filipinos and other immigrants and said there needs to be a place these individuals can go and get help dealing with the shock experienced when moving into a different culture. He is proud to be an American citizen but is concerned about the new immigrant population. He closed saying, "You need to walk a mile in my shoes, there are many stories to tell." SENATOR PHILLIPS said both his parents were immigrants, and he's dealt with discrimination as well. MARA KIMMEL is an immigration attorney who has worked in both private practice and, more recently, for a statewide non-profit social service agency providing immigration services. She is also the co-chair of the Immigration Law Section of the Alaska Bar Association. She applauded the efforts of Senators Kelly, Austerman, Ellis and Taylor in putting forth SB 90. The problems listed by Mr. Pelayo and Pastor Lim are those facing her clients every day and she has no place to refer them. SB 90 recognizes the valuable contributions made by Alaska immigrants and acknowledges the fact that they have difficulties in obtaining services that are taken for granted by others who aren't faced with the same language and cultural barriers. Immigrants are frequently overlooked even though they are an integral part of the Alaskan community. Creating the Office of Citizenship reflects an important public policy which is recognition of Alaska as a melting pot and welcoming these newcomers to our state and nation. There is no other agency that offers the services outlined in this bill. Many individuals will benefit from the services The Office of Citizenship will provide. ROBIN BRUNER, Program Director of Immigration and Refugee Services Program at Catholic Social Services in Anchorage, also applauds the efforts of the sponsors. The services are desperately needed by the people her office represents. They are the only agency and organization in Alaska providing legal services to immigrants and refugees. There are six staff members in her office and they worked with 2,700 people in fiscal year 2000. Alaska is a very diverse state with 1,000 Salvadorans on Kodiak Island, 500 Russians in Delta Junction and large communities of Filipinos living in Southeast Alaska, Kodiak Island, Dutch Harbor and the Interior. Naturalization clinics held state wide have helped between 100 and 200 people become citizens each year. Although legal services are provided, other needs mentioned by Mr. Pelayo and Pastor Lim aren't addressed because there isn't anyplace to refer them. There is a great need for an office where individuals could go and get the referral and information services they desperately need. She asked legislators to call her at (907) 276-5590 if there was any way she could help them move the legislation forward. Number 2077 ANDRE MCLEOD, testifying as a private citizen, called SB 90 "one of the most harebrained schemes I have ever seen, to the tune of $310,000 dollars." She thought the money could be better spent elsewhere and that the two testifiers from Juneau appeared to have adjusted to life in the United States very well. The challenges they have met are the same as those faced by every one else. Interfacing with government is always problematic. If there is difficulty with Immigration & Naturalization Service (INS) forms then those individuals should deal directly with INS. For problems with discrimination, AS 18.80, The Human Rights Commission, is the place to go. Attorney Kimmel should send individuals experiencing difficulties of these types to either INS or the Human Rights Commission. If there's any other type of difficulty with the state government, there's always AS 24.55, the ombudsman's office. She is sure there are better places to spend $310,000. "If things aren't going right then fix it but don't build another empire." CHAIRMAN THERRIAULT asked for a phone number in case the bill sponsors wanted to contact her directly. C MS. MLEOD said "I've already spoken to the sponsors of the bill and as I've spoken to them, I've tried to see where need for this legislation comes from and I was told that I really didn't need to know that." However, if committee members want to talk to her the number is 561-8595. CHAIRMAN THERRIAULT asked for other testimony. There was none. The bill was held in committee so that Chairman Therriault could discuss several matters with Senator Kelly. The meeting was recessed until 3:30 p.m., Thursday, March 15, 2001.