Attorneys flag ‘drafting errors,’ other issues with Alaska governor’s plan to split state health department

The Legislature's attorneys say the governor's executive order to split the state's health department in two contains "a number of drafting errors"
Published: Feb. 15, 2022 at 7:17 PM AKST
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JUNEAU, Alaska (KTUU) - The Alaska Legislature’s legal team has flagged several potential issues with Gov. Mike Dunleavy’s executive order that would split the state’s health department in two, including that it contains “a number of drafting errors” and could be substantively amending state statutes.

The Legislative Legal Division issued the memorandum on Monday evening. It looked into the governor’s 100-page executive order after a previous version was withdrawn last year when errors were discovered.

Democratic Reps. Liz Snyder and Tiffany Zulkosky are co-chairs of the House Health and Social Service Committee and requested the legal analysis into the executive order. Andrew Dunmire, one of the Legislature’s attorneys, said that it “greatly exceeds the length and scope of prior executive orders” used to merge or split departments.

He suggested “a bill might be a more appropriate vehicle” to divide the state’s largest agency.

“Additionally, it contains a number of drafting errors, introduces ambiguity into the Alaska Statutes, and it amends statutes in a manner that may be considered as substantive,” Dunmire wrote about the executive order.

He concluded the memo by saying that “the errors documented above should not be considered an exhaustive list.” He listed numerous state statutes that would potentially be substantively changed through the order.

Clinton Bennett, a spokesperson for the Alaska Department of Health and Social Services, said officials had just received the memo on Tuesday afternoon.

“Upon initial review, major components of the memorandum are surprising and appear contradictory to previous Legislative Legal opinions,” Bennett wrote in an email. “The department worked closely with stakeholders on the development of EO 121 and remains committed to improving services for Alaskans through the proposed executive order. DHSS will develop a detailed response to the memo in the coming days.”

Commissioner Adam Crum spoke to the media in December before the order was issued. He said splitting “the mega agency” would benefit Alaskans by better aligning delivery of services.

“Medicaid dominates the conversation,” Crum said at the time. “It takes all the air out of the room.”

When asked in December why the proposed split wasn’t being enacted through legislation, Crum said that an executive order is the appropriate mechanism to split the agency.

“It doesn’t create substantive law change,” he said about the order. “It actually just says this division shall be here, this department shall be here. And the services will not be interrupted.”

There could be a separation of powers issue if the order is seen as substantively changing state statutes.

“Our constitution vests the legislative power exclusively in the legislature,” Dunmire said. “The executive branch would usurp this power if it could enact legislation via executive order.”

The Legislature is restricted with what it can do with an executive order. It can’t be amended or corrected like a regular bill. A joint session can be held and a majority of legislators can vote to reject the order. If they don’t do that before mid March, it would go into effect on July 1.

“If these are issues in the draft that create significant or substantive changes to law, or create complications between the two new proposed departments, then our options are more limited with an EO and how we would address that,” Snyder said.

The House committee has held hearings into the executive order and what it would do to the department and for the delivery of services to Alaskans. Zulkosky said it was clear the department has engaged with stakeholders in the past year to craft this order.

Both Zulkosky and Snyder said the committee would need to do its “due diligence” after the memo was issued and see if there would be “unintended consequences” by enacting the split. An in-depth hearing into the legal memo and getting the department’s response is planned for Saturday.

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