Dunleavy’s unconfirmed appointees can continue working

Alaska Governor Mike Dunleavy’s nearly 100 unconfirmed appointees can keep their positions through January 19, a Superior Court judge ruled last Friday. Superior Court Judge Phillip Pallenberg denied a request for a preliminary injunction put forward by the Alaska Legislative Council, a 14-member group of House and Senate leaders. The council challenged the legality of Dunleavy’s appointments and sued the governor over his failure to get legislative approval.

Pallenberg, however, determined that there was not sufficient reason to remove appointees from their positions with less than two weeks before the Legislature convenes. “The plaintiff has not demonstrated that any permanent or irreparable damage would be done to the Legislature as a result of the short period of time during which these individuals will have served without being properly confirmed,” Pallenberg wrote in his decision denying the preliminary injunction.

The Legislative Council alleged that Dunleavy’s picks for Revenue Commissioner, along with 93 appointments, are not valid because they were not confirmed by the legislature prior to December 15. The House and Senate normally hold a joint meeting near the end of a regular session to consider the governor’s appointments. If appointees are not confirmed, they lose their positions when the legislative session ends. However, due to the COVID-19 pandemic, lawmakers in March passed a law that allowed them to consider confirmations later. Under the new law, failure to act on the appointments 30 days after the original COVID-19 disaster declaration expired or January 18 —whichever came first — would equate to a declination of confirmation. The initial disaster declaration expired on November 15, and the legislature has not reconvened since. This means that Dunleavy’s appointments, since they had not been approved, were invalid as of December 16, the suit alleges.

Lawmakers claim that, although Dunleavy can resubmit his recommendations at the beginning of the legislative session on January 19, their continuing to work in the interim is illegal. According to the suit, Dunleavy’s appointments are in violation of the Alaska Constitution, which states that principal department heads “shall be appointed by the governor, subject to confirmation by a majority of the members of the legislature in joint session.” Since the legislature had not given this confirmation, the council is concerned that any and all actions taken by the unconfirmed appointees and board members can be challenged. Unconfirmed appointments include Revenue Commissioner Lucinda Mahoney and Public Defender Samantha Cherot along with 92 other executive-branch officials.

Moreover, a further worry is that Dunleavy’s bypass of the Legislative branch undermines the system itself. In their request for expedited consideration, plaintiffs write that they seek to “prevent immediate and irreparable damage not only to the Legislature's law-making authority and to the public, but also to the integrity of our entire system of government.” The suit seeks to block Dunleavy from continuing with those appointments and asks that he wait to reappoint individuals until January 19.

Pallenberg explained that plaintiffs do not allege the appointees have done anything wrong during their time in office, nor do they argue that they will “commit some act deleterious to the public welfare” during their remaining days in office. Therefore, the harm is an abstract one. Moreover, he continued, any possible harm resulting from actions taken by appointees can be remedied.

For his part, Dunleavy blames lawmakers for failing to meet to confirm his appointees. He considers his appointments valid, citing a provision in the Alaska Constitution that allows the governor to make appointments to fill vacancies that occur during a recess of the legislature.

A Dunleavy spokesperson would not comment on litigation.

However, Dunleavy told the legislature that, “Executive Branch Department Heads and Boards and Commissions appointees to Executive Branch Boards, who have not received a confirmation vote, continue to serve under valid appointments,” according to the Legislative Council suit.