Legislative legal, CFEC question Walker’s adminstrative order

Ed. note: An earlier version of this article referred to Rep. Stutes' bill as not having passed the fisheries committee. The bill did pass that committee in 2015 and is currenlty awaiting a hearing in the House Resources Commitee. 

The Commercial Fisheries Entry Commission is once again fighting to stay abreast of fisheries officials who want to narrow its scope of duties.

Gov. Bill Walker signed an administrative order on Feb. 16 that folded several of the Commercial Fisheries Entry Commission’s key duties into the Alaska Department of Fish and Game, effective immediately. These functions include licensing and permitting, IT, accounting, payroll, procurement, and budgeting.

The order moves personnel associated with these services into the Alaska Department of Fish and Game, or ADFG. The most identifiable operational change – ministerial licensure – also causes the administration’s biggest legal hurdle; both CFEC officials and Legislative legal support question Walker’s order’s constitutionality.

Fishermen have opposed such rearrangements of CFEC in the past, fearing that the independent agency could be swept into the politics enmeshing the Alaska Department of Fish and Game.

Walker’s administration says the order is a cost-saving move in a grim financial climate, but CFEC doubts the order’s sense. A letter from CFEC officials accuses the administration of deceit and says the plan is vague, possibly unconstitutional, and cuts the Legislature out of the decision-making process.

According to Walker’s press release, the reshuffling will save the state an extra $1.3 million.

The House Finance Subcommittee cut ADFG’s budget by 14 percent on March 1. This included a $650,000 cut to CFEC, less than Walker’s $1.3 million but still beyond the phased-in approach recommended by the CFEC Legislative audit.

The Limited Entry Act, passed by the Legislature in 1973, established a limited entry permit system for state fisheries, establishing a set number of permits for fisheries and the Commercial Fisheries Entry Commission, or CFEC, to issue and monitor them.

Three commissioners serve as judges; they decide who’s eligible for permits, oversee the permit transfer process, and handle appeals for those fishermen who are denied. Currently, one of the positions – each with $200,000 in salary and benefits – is vacant. Bruce Twomley and Robert Brown fill the two remaining positions.

The order will make the commissioner positions part-time.

A long time coming

CFEC has been under increasing scrutiny since 2014 after two bills to disband it legislative audits that call it inefficient.

Both Rep. Paul Seaton R-Homer, and Rep. Louise Stutes, R-Kodiak, introduced separate bills that would have disbanded the commission. The bills were sandwiched between a scallop fishery scandal in late 2013 and two separate audits in 2015.

Both reports complimented CFEC’s past work, but also pointed out CFEC’s inefficiency so long after the Limited Entry Act. In each of the last two years, CFEC only adjudicated three contested permits per year. It maintains a backlog of 28 permit applications, most of which have been in the adjudication stage for 15 or more years.

“Both reviews outlined the good work that CFEC has accomplished, but also noted that the workload of the agency has diminished over time and that the organizational structure of CFEC is no longer efficient or effective,” reads Walker’s budgetary request for CFEC.

The audit points out that the original mission of the CFEC – to establish limited entry fisheries – has been largely completed since the 1980s. Alaska has 68 current limited entry fisheries, most of which were established by CFEC in the 1980s and the last of which was established in 2004.

Part of the order delegates CFEC’s research duties to ADFG. Stutes, who chairs the House Fisheries Committee, worries Walker’s order could present a “conflict of interest” between CFEC’s licensing research adn ADFG’s biological research.

ADFG commissioner Sam Cotten said he doesn’t understand how research performed under one body would be different under another.

“We do research too, we could combine the research needed for the Board of Fisheries,” said Cotten. “It’s another effort to streamline…I don’t see at all that it presents a conflict.”

In 2015, Stutes introduced a bill that would have disbanded CFEC entirely and folded its duties into ADFG.

Stutes’ bill passed committee and is currently waiting for a hearing in the House Resources Committee. In the interim between sessions, however, Stutes said she rewrote the bill to a more toned-down version that would keep several of CFEC’s duties but still hand over a portion to ADFG. Permit adjudication, fishermen told her, should remain in CFEC’s hands, while ADFG could easily take over tasks like ministerial licensing. 

Under the current CFEC system, commercial fishermen must send away to the Juneau office for their permits. Stutes’ change, which Walker’s order incorporates, allows fishermen to renew permits at their local ADFG office.

Stutes forwarded her rewrite to the governor, but said she didn’t know Walker planned his own action.

“I didn’t even know the governor had intended to take that bill until he had done it,” she said.

Order’s constitutionality

Walker’s plan saves money, but legal opinions say the administration exceeded its authority simply by making it an administrative order instead of an executive order.

CFEC staff circulated two separate letters to the Senate Fish and Game Finance Subcommittee on Feb. 17, one draft and one final – both expressing dissatisfaction with the administrative order.

“(The order) ignores entirely the audit’s recommendations, and instead seeks to transfer a vast array of power, functions, and staff to (ADFG),” the letters read.

Both letters challenge Walker’s legal authority to make a “de facto rewrite of the Limited Entry Act,” and ask the subcommittee to budget the CFEC according to a legislative audit. CFEC contends that the administrative order skirts the Legislative budgeting process.

 “We would further ask the subcommittee to consider the means employed by the Governor to enable (ADFG) to take over the vast majority of CFEC’s operations. Use of an administrative order and not an executive order, denies the Legislature a role in crafting CFEC’s budget for the coming year,” the letters read.

The letters, sent by CFEC chair Bruce Twomley and commissioner Robert Brown, accuse Walker’s administration – ADFG commissioner Sam Cotten and deputy commissioner Kevin Brooks – of “actively misleading the (Senate Finance Fish and Game) Subcommittee” at a Feb. 15 hearing, the day before Walker issued the administrative order. CFEC argues that the Legislature should assign CFEC’s budget according to the Legislative audit’s recommendation, not Walker’s order.

Furthermore, Brown and Twomley contend Walker’s order could be unconstitutional, both by stripping an agency of several key functions and shuffling employees between two disparate agencies.

“The question of whether it is constitutional or otherwise lawful and appropriate for an Administrative Order to deprive an autonomous agency of its ability to perform explicit statutory duties and assign that performance to a separate agency deserves an answer, but that answer will not be forthcoming in time to allow the Subcommittee to act in obeisance to A.O. 279,” the letter reads.

Indeed, the Legislature’s legal council seems to agree with Twomley and Roberts.

Rep. Cathy Muñoz, R-Juneau, asked the legislative law office for its opinion of Walker’s order. The opinion, drafted by Legislative Affairs Director of Legal Services Doug Gardner, finds a potential constitutional snag.

According to the Alaska constitution, the governor is indeed authorized to “reorganize” administrative duties in the executive branch, which includes both ADFG and CFEC.

If the reorganization requires “force of law” – a change in statute – then it requires an executive order subject to the Legislature’s approval.

Most CFEC duties are statutory, put in place by the Limited Entry Act. In particular, Walker’s administrative order could give ADFG the statutory duty to issue licenses under certain circumstances. This would require a statutory change – a force of law – which means Walker’s order should have been executive, according to Gardner.

“Based on the language in (Walker’s order),” wrote Gardner, “it is hard to evaluate how ADFG can perform either of these licensing functions which are 1) specific statutory duties of CFEC that in some cases affect the rights and liabilities of permit holders; and 2) where these statutory functions could be more that purely ‘ministerial.’”

DJ Summers can be reached at daniel.summers@alaskajournal.com.

 

Updated: 
03/04/2016 - 10:57am

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