Gov. Frank Murkowski might have violated the Alaska Constitution with his creation of a state transportation job for then-Wrangell state Sen. Robin Taylor.
"I think it clearly raises questions with the plain language of the Constitution," said Ethan Berkowitz, an Anchorage Democrat and the state House minority leader.
Documents obtained by the Anchorage Daily News last week show the Murkowski administration created the job for Taylor while the Wrangell Republican was still in the Legislature.
That raises an apparent conflict with Article, 2 Section 5 of the Alaska Constitution.
It reads: "No legislator may hold any other office or position of profit under the United States or the State. 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 Alaska attorney general's office was looking into the matter on Thursday but has no comment at this point, according to Theresa Woelk, the office's spokeswoman.
Murkowski's press secretary, John Manly, said he didn't know if the appointment was a violation. But he argued that it definitely didn't go against the spirit of the Constitution.
He said the administration meant to officially create the job after Taylor resigned from the Legislature.
"It was our intention that this position would have been created ... not in violation of the Constitution," he said.
The administration's plan was to do the same thing it did this spring when Murkowski appointed Kodiak Republican Sen. Alan Austerman to be the governor's fisheries adviser.
In that case, Murkowski offered Austerman the job while Austerman was still a legislator. But the Murkowski administration waited until the day after Austerman resigned from the state Senate to officially create the fisheries position.
"If a legislator first resigns and then the office is created, it appears that the former legislator is not prohibited from taking that office," according to a legal opinion from Tam Cook, the Legislature's lawyer.
But it didn't work that way for Taylor. Murkowski announced Aug. 8 that he would be creating a job in the Alaska Department of Transportation for the former candidate for governor. The governor's office then went ahead and created the job Aug. 20.
But Taylor didn't resign from the Senate until midnight Sept. 14. He went to work for the state the next day, as a special assistant in the Southeast region of the transportation department. Taylor's job, which pays $74,516 a year, is to push for road projects in the panhandle.
Taylor didn't return telephone calls and an e-mail to comment on this story.
Taylor, 60, had been in the Legislature since 1984. An outspoken lawmaker with a reputation for going for the jugular in debates, Taylor for years wielded strategic influence as Judiciary Committee chairman.
Manly said there might have to be a bureaucratic fix. Maybe the state could just go back and have Taylor's job creation be official right after he resigned, the press secretary said.
In the end, Manly said, the issue "doesn't amount to a hill of beans as far as we are concerned."
That's because the Taylor appointment didn't violate the spirit of the state Constitution, Manly said. The idea behind the constitutional prohibition on hiring legislators, Manly said, is to make sure lawmakers do not create or fund jobs through the legislative process and then step in and take those jobs themselves. Taylor's job was not created by the Legislature, Manly pointed out.
In 1976, the Alaska Supreme Court looked at the reasons behind the constitutional prohibition on appointing legislators to jobs in state government.
"The purpose sought to be accomplished by that section is not merely to prevent an individual legislator from profiting by an action taken by him with bad motives but to prevent all legislators from being influenced by either conscious or unconscious selfish motives," the court said in the case of Warwick v. State.
Berkowitz, the Anchorage Democrat, said that section of the Constitution is also meant to remove even the appearance of impropriety from government appointments.
"I want to have a governor and an administration that subscribes to the highest ethical standards," Berkowitz said. "Which means there would be no questions about what is going on."