Alaska Attorney General Kevin Clarkson testifies before state senators during a confirmation hearing on Tuesday, Jan. 29, 2019, in Juneau. (Becky Bohrer | Associated Press)

Alaska Attorney General Kevin Clarkson testifies before state senators during a confirmation hearing on Tuesday, Jan. 29, 2019, in Juneau. (Becky Bohrer | Associated Press)

Attorney general: $20 million schools appropriation unconstitutional

Although the money has not been distributed, many districts have already budgeted the funds.

Alaska’s attorney general has declared a $20 million appropriation for school funding made during last year’s legislative session unconstitutional.

The one-time education funding was enacted by the Legislature through Senate Bill 142 and signed into law by former Gov. Bill Walker in June 2018.

In a formal opinion, dated May 8, Attorney General Kevin Clarkson and the Alaska Department of Law claimed the appropriation goes against the state constitution because it “improperly binds a future legislature and future governor” and violates the “constitutional prohibition against dedicating state revenues.”

“It is our opinion that an appropriation that seeks to expend future money (in contrast to an appropriation authorizing revenues that have been received by the state in the current fiscal year to be spent in a future fiscal year) is unconstitutional,” the opinion letter reads. “Such future appropriations violate the annual budgeting process mandated by the Constitution. Further, such appropriations violate the anti-dedication clause. And, when the future appropriations span from an out-going governor to an incoming new governor, it is our opinion that the future funded appropriations unconstitutionally circumscribe the new governor’s line-item veto power.”

The move continues the budgetary uncertainty facing school districts. Although the money has not been distributed to schools, many districts have already budgeted the funds.

Education advocacy group, Coalition for Education Equity, is suing Gov. Mike Dunleavy and the state education commissioner for failing to release the $20 million, asserting the governor violated the Constitution by impounding the education funds.

At Tuesday’s Kenai Peninsula Borough Assembly meeting, Mayor Charlie Pierce said he was assured on April 25 by local lawmakers, Sen. Peter Micciche, R-Kenai/Soldotna, Rep. Ben Carpenter, R-Nikiski, and Rep. Sarah Vance, R-Homer, that the governor cannot veto the $20 million in previously appropriated funding.

“It was a $1.2 million contribution to our local borough, and we were assured Dunleavy cannot veto that $1.2 million coming to our district,” Pierce said at the meeting. “We got some certainty there. So, I’d say FY19 budget for the district is funded, so that should take and alleviate that discussion.”

The repeal of the one-time funding would actually mean a $1.4 million funding loss for the Kenai Peninsula Borough School District. Those funds have already been allocated within the school district, and cover the costs of paying 11 teachers.

“On the Kenai, we budgeted this as $1.4 Million of General Fund Revenue and we reinstated 11.5 FTE (full-time) teaching positions as well as three days for many of our support personnel that had previously been reduced from our budget,” Assistant Superintendent Dave Jones wrote in a Jan. 28 letter to local lawmakers. “We have been employing and paying those folks since the start of the school year in August!”

More lawmakers are calling the governor and attorney general’s opinion into question. In a Thursday press release, House Speaker Bryce Edgmon, I-Dillingham, said the attorney general incorrectly claimed the Legislature cannot forward-fund education.

“The governor is subjecting students, parents, and teachers to an unnecessary legal and political fight,” Edgmon said. “We stand with the Senate and remain firm in our belief that the Legislature acted in a legal and appropriate fashion when it forward funded K-12 schools last year.”

The Legislature has been working toward releasing those education funds. The Senate released its operating budget May 2, with an amendment pushing the Department of Education and Early Development to “immediately distribute the full amount to school districts.”

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