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August 23, 2004
Room 204 Capitol Building
Cheyenne, Wyoming
Senator John Hanes, Cochairman
Senator Jayne Mockler
Representative Pete Illoway
Senator Bob Peck
Representative Randall Luthi, Cochairman
Representative Wayne Reese
Dave Gruver, Assistant Director
Don Richards, Senior Research Analyst
Please refer to
Appendix 1 to review the Committee Sign-in Sheet
for a list of other individuals who attended the meeting.
Cochairman Hanes called the meeting to order at 9:00 a.m. He announced that the Committee would proceed by listening to each issue on the agenda and if a request for a bill on that issue is made and seconded then the bill will be drafted for consideration at the next Committee meeting to be held on September 13. Please refer to Appendix 2 to review the Committee Meeting Agenda.
Governor Freudenthal addressed the Committee and the recommendations which have been presented to the Committee by the elected officials. The recommendations are found in various memos from the elected officials and others and are attached as appendices 3 through 7. Background information on each of the following issues can be found in those appendices.
Regarding the Board of Land Commissioners and the appointment of a director of the Office of State Lands and Investments, the Governor suggested that the appointment be allowed to stay as is, with the Governor appointing the Director. In his view the suggestions for change are an attempt to resolve an undefined problem.
As to the State Building Commission, the Governor suggested that the only change be that the secretary to the Commission should not be the administrator of the general services division, but should be the person in the position currently occupied by former Senator Cathcart. He would leave the position as one appointed by the director of the Department of Administration and Information. With the changes made in the last legislative session the Governor believes that it appears the staffing level is in place to make the State Building Commission work.
Regarding the On-Line Government Commission, the Governor suggested that the Committee discuss the issue with the State's Chief Information Officer before making any changes.
As to contract approval, the Governor would leave approval authority with the Attorney General's Office.
Regarding budgetary authority, budget review should be left with the Governor in his view. The Governor's Office needs to oversee all budgets and he has given deference to the elected officials' budgets. He did note that recommendations of the State Building Commission should be delivered to the Joint Appropriations Committee separately from the Governor's recommendations. That has not been done in the past.
Regarding legal counsel, the Governor noted that statutory changes were made in the last session. The State Superintendent and the State Treasurer have been given funding to hire counsel and all four elected officials have been authorized to retain counsel. He suggested that the Attorney General should not be elected, but noted that would be a policy question for the Committee.
As to the remaining recommendations the Governor suggested that for all the work to be done by contract in the Capitol building would be difficult and that the Committee might come up with a way to address that item. On the State Auditor approval of contracts, he deferred to the State Auditor's expertise on the issue. As to the State Board of Education, the Governor did not think there was a need for change as suggested by the State Superintendent.
Regarding the ability to have a no confidence vote for the position of Director of the Office of State Lands, the Governor believed any Governor would act accordingly if that course of action were taken by the elected officials, but that does not mean that on any given day any three elected officials should be able to remove the Director of the Office of State Lands. The no confidence vote is a public way for the elected officials to urge action. That can be done now in his view and if done, the reason for the vote should be looked to and acted upon accordingly. The Governor contemplated that the no confidence vote would be a public session. The Governor noted the State Forester is now appointed by the Board of Land Commissioners and that such appointment may not be the most appropriate. The Governor thanked the Committee for its time and the Committee returned to reviewing each item on the agenda.
Board of Land Commissioners
Superintendent Blankenship testified that the crux of this issue is that a commission of the elected officials is created by the Constitution and since the appointment of the Director of the Commission staff is left with the Governor, the power of the commission is turned to the power of the single appointing official. In his view the commission has a duty that is not being fulfilled by the current process.
State Treasurer Lummis first addressed the memo received by the Committee from the Director of the Office of State Lands. In the Treasurer's view the memo took the incorrect position that the Director and staff of the Office of State Lands somehow protects state trust lands from the elected officials. The Treasurer testified that the elected officials and Legislature are likewise concerned with the trust and the Director is not in a position of protecting the trust from elected officials. She noted the trust was not created by the constitution but by statute. The Director position is established by statute and the Legislature may change that. Regarding the ability to enter into a no confidence vote, the State Treasurer did not believe that action alone would work. She cited an example of the State Building Commission staff implementing what the previous governor voted for in contradiction to what the other four elected officials voted for. If the appointment process is to remain as is, the State Treasurer suggested that additional processes be put in place by statute ensuring that the acts of the Commission are carried out by staff.
Lynne Boomgaarden, Director of the Office of State Lands and Investments offered her viewpoint as a staff person. She was not suggesting by her earlier memo that she and other staff were attempting to protect the trust from the Board. She was attempting to indicate that the staff has loyalty to the trust and thus there is no divided loyalty. The recommendation that there be a nomination and approval process for her position would be supported by the Director. The opportunity to take a public vote of no confidence is available in her view, but there is no harm in making that explicit in statute. The Director should not be subject to removal by the elected officials. In Ms. Boomgaarden's view, she believed the position of State Forester was unique and needed some independence, but she did not have a strong opinion one way or the other regarding appointment of the state forester.
State Treasurer Lummis made clear that she thought Ms. Boomgaarden was doing a fine job, her point transcended individuals and particular administrations, it was aimed at the general process. She asked that the Committee ask the state forester or other directors appointed by boards as to whether they feel their position is politicized when appointed by a full board. In her view a position is more politicized if a single person appoints the position.
Cochairman Hanes asked for nominations for a draft bill. He noted that any request for bill drafts could be seconded by any committee member, even if not present. The time for seconding would be until close of business Thursday.
Representative Illoway requested a draft providing for the Board of Land Commissioners to appoint the Director of the Office of State Lands and Investments. The director would in turn appoint the State Forester. Senator Hanes seconded the motion.
Senator Mockler asked for an alternative, with the governor nominating the director, the Board reviewing the nomination and the senate confirming the nomination. The state forester should be appointed by the director. The vote should be public and there should be a public vote of no confidence available. The Committee determined that for any board on which the five elected officials sit there should be a process for a public vote of no confidence in the administrative head. Senator Mockler's motion was seconded by Representative Illoway.
State Building Commission
Superintendent Blankenship stated the Commission should appoint its administrator and he should hire the staff. Currently the division administrator of general services, within the Department of Administration and Information is secretary to the Commission.
State Treasurer Lummis felt the Legislature should either make the Commission all gubernatorial appointees, abolish the Commission or allow the Commission to appoint a director. She noted the Commission's recommendations have never been forwarded to the Joint Appropriations Committee. She reiterated that there have been instances in which the Governor's position was instituted in light of a 4-1 vote against that position. She urged that legislation either give the Commission authority commensurate with responsibility or take the responsibility from the Commission. She reiterated that the issue was not about personalities and that she was in fact happy with the current personnel, again suggesting that the date for implementation of legislation should be after the next election of the elected officials.
The Committee discussed the continued existence of the State Building Commission and the need for the Commission's oversight of state capital construction.
Rich Cathcart, recently appointed to a position within the Department of Administration and Information overseeing state capital construction, stated that the problems previously identified for the Committee are real, including the failure of budgets from the Governor's Office to reflect the State Building Commission's recommendations. However, that problem is not limited to the State Building Commission, the Legislature likewise has been ignored regarding capital construction issues. Since the last session there has been an attempt to provide expertise on the capital construction issue and an attempt to have expert oversight of agency actions relating to capital construction. The budget last session has for the first time funded positions to allow expert oversight of the process. As far as appointment of the Director and staff, he asked for the opportunity to allow the new staff and positions time to work.
Senator Mockler asked if there would be a separate budget request for the State Building Commission in the next budget. Senator Cathcart noted that in his view it was a matter of semantics as to whether a separate budget is provided. Senator Mockler's view was that there needs to be a separate budget request from the State Building Commission if there is to be full disclosure to the Legislature.
The Committee discussed the interaction between the general services division and Mr. Cathcart's functions in overseeing state construction. If given the chance to write on a "clean slate" Mr. Cathcart felt the current situation was a fairly good start.
Representative Illoway suggested that there should be a new state building authority created with Mr. Cathcart's entity being the staff to the new entity. The Committee discussed the issue generally and the time for the Committee to restructure the State Building Commission's duties. Senator Mockler suggested that the issue be referred to the Select Committee on Capital Financing and Investments since it has sponsored a number of bills on the issue. The recommendation should be to start with a centralized entity which would be responsible for all state capital construction, including leasing and purchasing facilities. There should be a review of the State Building Commission's functions and perhaps the elimination of the State Building Commission. The recommendation should be forwarded by this Committee to the Management Council.
On-line government commission
State Treasurer Lummis asked for the abolishment of the On-Line Government Commission. The Commission has not met in two years and has not taken an active role in the implementation of the electronic transmission of business with the government.
Joe Ahern, Deputy Chief Information Officer for the State, testified that the functioning of his office would not be affected with the elimination of the on-line government commission. The division employs six persons currently.
Representative Illoway questioned whether there would be a need for additional statutory authority to the Chief Information Officer if the On-Line Government Commission were eliminated. Mr. Ahern suggested that there might be a need to redraft some of the powers of the chief information officer. Cochairman Hanes suggested that would be beyond the scope of the Committee's assignment. Senator Mockler requested a bill draft which would eliminate the On-Line Government Commission and transfer its powers to the Chief Information Officer. Representative Illoway seconded. Any additional powers sought by the Chief Information Officer should be brought in a separate bill, by some other sponsor.
Contracts
State Treasurer Lummis testified that the five elected officials should be treated like the Legislature and the Judiciary and not like an executive branch agency as to contracts. The approval of the Governor for contracts of over $7,500 should be eliminated in her view; as long as the contract is within the elected official's budget. The Committee discussed the Attorney General's role in the process. Treasurer Lummis stated that perhaps if the elected official has conformed to the state manual then that could be automatically approved, but if the contract does not, perhaps it needs additional approval, but again only as to form.
Attorney General Crank addressed the Committee. He provided written information regarding the contracts submitted to his office for review. (Appendix 8) Within that information is a contract log kept by his Office. The Office approves contracts under the authority of W.S. 9-1-403(b)(v) at the rate of about 6,875 contracts per year. In nineteen months as Attorney General, one contract has been disapproved. That disapproval was for reasons of being outside the statutory authority of the submitting elected official. Approval "as to form", in the Attorney General's view is an opportunity for the Office to ensure that the contract meets statutory and constitutional provisions. In his view it is important that one central office oversees all state contracts in order to protect the State's interest both as a check before problems arise and to be able to remedy problems which can arise under contracts. He noted he supported the retention of in-house counsel for the elected officials and that he would like to see how those new positions work before another step is taken in the direction of allowing elected officials contracting authority.
The Committee questioned when the $7,500 amount was adopted. The Committee discussed what the approval authority should be and what it is for the elected officials. Attorney General Crank stated that the $7,500 amount is the amount which cannot be sole sourced under the Department of Administration and Information statutes.
Senator Mockler moved that for non sole source contracts over $7,500, the contract would not require gubernatorial approval and that the contracts for services over $1,500 likewise not be subject to the governor's approval. Illoway seconded the request. This was clarified to state that the elected officials' sole source contract would not require approval authority by the Governor or the Department of Administration and Information.
Budget authority
Superintendent Blankenship stated that he agreed that the Governor should have oversight of the total amount of budget submitted, but not over specific line items within the budgets of the elected officials. The Governor should be able to review the budget and if he wishes to reduce the budget submitted he should make the general recommendation, but the Governor should not be able to reduce the budget submitted by the state elected officials. In response to Committee questions the Superintendent stated that the issue was not a major one and if no changes were made, the process is not broken. No motions were made on this issue.
Legal counsel
Superintendent Blankenship addressed the issue of legal counsel for the elected officials. He thanked the Committee for last session's actions providing legal counsel within his office. He noted that since the session the Attorney General has provided very good service regarding the approval and review of contracts. But there is still an issue regarding attorney client privilege. Based upon statements made to his Office previously when there was an issue in which the same attorney represented his Office and the State Board of Education, there was no attorney client privilege between his Office and the Attorney General. He sought separate representation of the Board and his Office for those issues.
Treasurer Lummis suggested that if the Committee does not make the Attorney General an elected official, it should consider the statement of privilege found in the recommendations on page 8. The need of that language is especially important if the Attorney General is appointed by the Governor. Treasurer Lummis stated that only one Attorney General has indicated that an attorney client privilege exists between her Office and the Attorney General Office. Senator Hanes asked whether the client needs to be defined if such statutory language is adopted. The Treasurer suggested the client should be the person who is seeking the advice. It should be applied to at least the four elected officials in her view.
Attorney General Crank testified that his Office has taken the position that they do maintain confidentiality of communications. He urged the Committee to separate two issues, one being a conflict situation and the second being attorney client privilege. The situation presented by the Superintendent was a conflict situation which can be addressed by appointing separate counsel. He raised issues regarding who would in fact be the client, the person or the position. He also noted that what is privileged is the communication between himself and his client, not information gained elsewhere. The Attorney General opined that it would be a mistake to make the position an elected position, that would make the position less independent and change the focus to political considerations.
Superintendent Blankenship reiterated that he believed there is a structural problem, not a personal issue and it is difficult for any elected official to receive independent privileged information. Senator Hanes stated that he assumed the in house counsel would have an attorney client privilege. The Attorney General agreed with that statement.
No motions were made on the issue.
State examiner's function
The state treasurer stated that state and local governments should be audited by an independent elected official's office. Cochairman Hanes questioned whether the issue was properly within the Committee's purview. Representative Illoway stated that perhaps the issue was broader than the single office of the state auditor and thus within the Committee's purview. Senator Mockler suggested recommending to Management Council that there should be a review of the functions of the state examiner prior to the repeal of that position and a review of how those functions are now being carried out. Senator Mockler suggested that the function perhaps could be placed within the department of audit. Representative Illoway stated that the issue should be pursued further at least by a recommendation to the Management Council. Cochairman Hanes directed that LSO research staff review the state examiners functions and determine currently who is audited and by whom, and how that changed with the removal of the state examiner's office and also that the Committee express its desire that Management Council assign the issue as appropriate for further review.
Legislative expenditures
The state treasurer suggested that there is perhaps a way to nominally approve by letter annually the expenditures of the legislature. There was consensus of the Committee to address the issue in that fashion.
State auditor approval of warrants
The Committee discussed the earlier motion regarding elected officials not being subject to A&I or the Governor's approval on sole source contracts and that the earlier motion would subsume the specific issue presented on page 10 of the memo.
State Superintendent and State Board of Education
The State Superintendent suggested that the Legislature clarify the duties of the State Superintendent and the State Board of Education. Cochairman Hanes suggested that the issue be brought to the Education Committee. Representative Illoway suggested this be brought to the attention of Management Council and that this Committee suggest Management Council assign the issue to the Education Committee for consideration. Cochairman Hanes requested that this be included as a recommendation for Management Council to assign to the Education Committee in the next interim.
The Committee then discussed the ability of the elected officials to send designees to the various boards to which they are designated to serve. Senator Mockler asked for a bill draft in which each of the elected officials who are to serve on a board or commission be allowed to send a designee and that it be expressed in statute. The ability to send a designee should not apply to any board which is consists solely of the state elected officials. The motion was seconded by Representative Illoway.
Cochairman Hanes stated that the bills will be drafted, disseminated to all elected officials and be voted upon at the September 13 meeting. He asked that there be a draft report provided for the September 13 meeting.
There being no further business, Cochairman Hanes adjourned the meeting at 2:45 p.m.
Respectfully submitted,
John Hanes, Cochairman