'Ineligibility clause' provides clear guidance on Tammie Wilson's ineligibility

Some readers have suggested the decision by the Dunleavy administration to hire Rep. Dan Saddler will be used as a justification for allowing Rep. Tammie Wilson to get an executive branch job right away, despite restrictions in the Alaska Constitution.

The biggest difference between Saddler’s situation and Wilson’s is that Saddler was appointed to an existing public relations job shortly after Dunleavy became governor in 2018, while Wilson’s position has just been created.

Gov. Mike Dunleavy and health commissioner Adam Crum developed the new position and selected Wilson, according to the state press release announcing her hiring.

The Alaska Constitution “Ineligibility Clause” prohibits a legislator from switching immediately from an elected position to the executive branch if the job “has been created” during the legislator’s term.

“During the term for which elected and for one year thereafter, no legislator may be nominated, elected, or appointed to any other office or position of profit which has been created, or the salary or emoluments of which have been increased, while he was a member,” the Constitution says.

As Saddler went about defending his hiring a year ago after I questioned the move, he produced a crumpled attorney general’s memo, which appeared to have been salvaged from a wastepaper basket, that said he was good to go.

The memo he provided to the Anchorage Daily News said that since the pay for the public relations job had not increased during Saddler’s last term and it was an existing position, there was no problem.

“Rep. Saddler indicates he would not be appointed to a newly created position,” the memo from the attorney general’s office said.

Saddler emphasized this point to the Daily News: “The constitution is very clear about a position being created, not a vacancy being created,” Saddler said.

In Wilson’s case, it’s clear that hers is a position that was created, creating a constitutional conflict.

However, she told reporters Friday that “this is a position that’s already been there,” which contradicts the state announcement and the proposed Dunleavy budget. It also contradicts her statement that she will be in “kind of a new unit being put together.”

I expect that the Dunleavy administration may argue that an old job is being reconstituted or that the new job did not really exist as of last Thursday, when Wilson said she decided to take the job, so there is no conflict with the Constitution. The state may claim that the job wasn’t created until after she left the Legislature.

The Dunleavy administration is asking for four new positions in the budget, one of then apparently for Wilson, “to support a new unit to provide direct oversight and leadership to the Office of Children's Services and the Division of Juvenile Justice,” according to a legislative analysis.

The debate about creation stories and state jobs for legislators should have been settled a decade ago when Rep. Nancy Dahlstrom quit the Legislature to take an executive branch job, only to trigger constitutional questions that led to her resignation. It didn’t matter that the job was technically created just after she left her legislative position.

In a 2010 opinion, Attorney General Dan Sullivan said “an Alaska court might not endorse a strict formalistic interpretation of when a position is ‘created.’”

“The crux of the issue centers on when an executive branch position is ‘created’ for purposes of the Ineligibility Clause. Alaska courts have not directly addressed that question,” Sullivan wrote.

Dahlstrom resigned after Sullivan’s opinion and former Sen. Gene Therriault also left a state job over the same constitutional question.

A broad interpretation of “created” means that Wilson’s job already exists, based on comments by the governor and health commissioner in the state press release and Wilson’s remarks about her reasons for quitting.

“The opportunity to hold a newly created position may, or may be perceived to, exert an undue influence on a legislator’s judgment,” Sullivan wrote in his 2010 opinion.

“That undue influence, or the public perception of it, will not be prevented simply because certain administrative tasks involved in creating a position occur only after the legislator resigns. Interpreting the term ‘created’ formalistically, so that it depends upon when such an administrative task is completed, could permit such an outcome.”

The Dunleavy administration has made it clear that the job exists, which should mean a one-year delay in her filling the post.

Under a suggested headline of “DHSS Hires Tammie Wilson as Policy Advisor,” written before Wilson quit the Legislature, a state announcement Friday said Dunleavy and Crum “developed a policy advisor role in the DHSS Commissioner’s office. This new policy advisor will be Tammie Wilson.”

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