Alaska Legislature will sue Gov. Mike Dunleavy over lapsed appointments

A panel of Alaska legislators voted 11-1 on Tuesday afternoon to sue Gov. Mike Dunleavy over his decision to bypass legislative confirmation for his picks for state boards and commissions.

“He is assuming he has the authority to keep people who have not been confirmed in their duties, and legally, that’s just not true,” said Sen. John Coghill, R-North Pole and one of the 11 legislators who voted in favor of the lawsuit.

The deadline for confirmation was extended this year because of the coronavirus pandemic but expired earlier this month.

Tuesday’s decision by the joint House-Senate Legislative Council authorizes council chairman Sen. Gary Stevens, R-Kodiak, to direct a lawsuit against the governor. Each expect a suit to be filed as soon as Wednesday. The governor’s office did not immediately respond to questions about the lawsuit.

Coghill and Stevens said that if the governor continues to use unconfirmed appointees, someone could challenge any and all actions taken by boards and commissions that include unconfirmed appointees. Actions taken by state Revenue Commissioner Lucinda Mahoney could also be challenged, Stevens said.

A scheduled Wednesday vote on Arctic National Wildlife Refuge oil leases by the Alaska Industrial Development and Export Authority could be among the challenged decisions.

Because of the coronavirus pandemic, the Alaska House and Senate failed to meet together this spring and consider Dunleavy’s nomination of Mahoney for state revenue commissioner and dozens of nominations for boards and commissions.

Mahoney has designated former state Sen. Anna MacKinnon to fill a spot on the board. Dunleavy chief of staff Ben Stevens said that because MacKinnon was designated earlier this year, her status isn’t in doubt. Some lawmakers aren’t sure. Coghill said there could be “question marks” around her status if challenged in court.

Normally, unconfirmed appointees immediately lose their positions once the legislative session ends, but because of the pandemic, the Legislature passed (and Dunleavy signed) a law with a new deadline: 30 days after Alaska’s coronavirus emergency expired. The emergency expired Nov. 15. Dunleavy has twice extended parts of the emergency in new disaster declarations, but the deadline for confirmations did not change.

After it passed earlier this month, Dunleavy told the Associated Press that he believes a provision of the Alaska Constitution allows his appointees to continue working.

Legislators disagree. They say the governor can reappoint his nominees after the next Legislature begins, but until then, there is a one-month gap when an interim official must do the work.

“Any decisions made by these people during that interim period could be recalled or made void. I think they should be very careful what all boards and commissions do in that one-month time,” Stevens said.

Among the legislators voting on Tuesday were several who lost their elections this year. Coghill, who lost in August’s Republican primary, acknowledged that it is “awkward” to take severe action during a lame-duck session, but it was unavoidable.

“I would say that whatever’s in front of you, you deal with it,” he said.

The lawsuit could be dropped after the new Alaska Legislature convenes Jan. 19 and a new Legislative Council is selected. Neither the House nor Senate have picked leaders for the new legislative session, which makes that possibility uncertain.

This will be the second lawsuit filed by the Legislative Council against Dunleavy since he took office in 2018. The first involved education funding, and the council won at a lower-court level.