Legislature(2021 - 2022)GRUENBERG 120
05/13/2021 03:00 PM House STATE AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| SB47 | |
| HB187 | |
| HB118 | |
| HB177 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 198 | TELECONFERENCED | |
| += | HB 177 | TELECONFERENCED | |
| + | SB 71 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | SB 47 | TELECONFERENCED | |
| += | HB 187 | TELECONFERENCED | |
| += | HB 118 | TELECONFERENCED | |
HB 177-REVISED PROGRAM: APPROPRIATIONS
4:45:05 PM
CHAIR KREISS-TOMKINS announced that the final order of business
would be HOUSE BILL NO. 177, "An Act relating to an increase of
an appropriation due to additional federal or other program
receipts; and providing for an effective date."
4:45:14 PM
The committee took an at-ease from 4:45 p.m. to 4:47 p.m.
4:47:02 PM
CHAIR KREISS-TOMKINS invited Representative Tuck, prime sponsor,
to introduce HB 177.
4:47:32 PM
REPRESENTATIVE CHRIS TUCK, Alaska State Legislature, as prime
sponsor, presented HB 177. He said HB 177 attempts to put
limitations on the Revised Program Legislative (RPL) process.
The RPL process, he said, was originally to allow the governor
to receive additional funds from other sources, mostly from the
federal government, any time the legislature has previously set
up a program and appropriated money for that program. However,
he noted, this last year the governor took liberties to set up
his own programs from funding sources that the legislature did
not first establish, and this was never constitutionally
challenged or challenged in the courts. There was an
injunction, but the injunction was to stop the process. It went
to the Alaska Superior Court and was never ruled upon, but the
court looked for legislative action. So, this last year the
legislature ratified what the Legislative Budget & Audit
Committee had done. For injunction purposes, Representative
Tuck explained, the Alaska Superior Court judge is looking for
some sort of legislative action, but it could be argued that
that wasn't the appropriate legislative action since at no time
during that time can any individual member of the legislature
amend that specific RPL, which shows that the legislature did
not have full appropriations powers. So, he continued, HB 177
is a cleanup bill allowing the legislature to continue being the
appropriators for the legislature. The bill would establish
sidebars and limitations so that an RPL introduced by the
governor to the Legislative Budget and Audit Committee could not
go forward 45 days later if the committee doesn't approve or
doesn't take up that RPL.
4:50:29 PM
REPRESENTATIVE TUCK presented a sectional analysis of HB 177.
He explained that Section 1, page 1, lines 5-7, would amend AS
37.07.080(h) to clarify that the RPL process is only available
for additional funds for existing programs or projects that have
already been funded by the legislature. He said page 2, lines
3-8, would amend AS 37.07.080(h)(3) to require approval by the
full legislature if the Legislative Budget & Audit Committee
recommends against the RPL. This would eliminate the governor's
ability to act unilaterally on his or her own 45 days later, he
explained, so that only by approval from the legislature could
the governor move forward.
4:51:26 PM
REPRESENTATIVE CLAMAN offered his understanding that under HB
177, the Legislative Budget & Audit Committee could approve a
substantial increase in an appropriation and the appropriation
would never come back to the legislature. Only if the
Legislative Budget and Audit Committee rejected the governor's
proposed program, would it get back to the legislature.
REPRESENTATIVE TUCK confirmed that is correct. He said that
currently, if the Legislative Budget & Audit Committee doesn't
take it up or doesn't approve it, the governor can act anyway 45
days later. So, really, the only purpose of the Legislative
Budget and Audit Committee to take it up is to speed it up, but
not to require the full legislature to take it up.
REPRESENTATIVE CLAMAN offered his understanding that the RPL
process is a take-it-or-leave-it framework. Regarding HB 177,
he asked whether there is room for the Legislative Budget and
Audit Committee to negotiate changes with the governor or
whether it is still a take-it-or-leave-it structure, or the bill
doesn't say.
REPRESENTATIVE TUCK responded that the process is that if the
Legislative Budget and Audit Committee fails to adopt an RPL,
the governor then has two choices. The first choice is to wait
the 45 days. [The second choice is] to withdraw that RPL since
an RPL cannot be amended, and then introduce a new RPL that is
accommodating to the legislature's wishes.
4:53:31 PM
REPRESENTATIVE CLAMAN posed a scenario in which the governor
presents an RPL to the Legislative Budget and Audit Committee
and the committee says it will agree to 50 percent but not 100
percent. He asked whether the Legislative Budget and Audit
Committee would need to reject that RPL and then the governor
would come back or whether in those negotiations there is some
way to negotiate that in the process before it gets officially
rejected.
REPRESENTATIVE TUCK answered no, it is going back to the take-
it-or-leave-it scenario until the governor gets it in such a
form that the Legislative Budget and Audit Committee will
approve it. He said there is no way to change the language or
the amount during a committee hearing because the Legislative
Budget and Audit Committee does not have that ability to amend.
He explained that it is already a gray area on whether the
governor should have this power in the first place. That power
is granted to the governor through the RPL process written under
AS 37.07.080(h), as well as what the legislature puts in the
operating budget. The problem with the Legislative Budget and
Audit Committee being able to amend that is that the committee
is basically acting on behalf of the full legislature, and that
is where it is granting too much power to the committee on
behalf of the legislature. So, technically, an RPL cannot be
stopped because 45 days later once "we grant those permissions"
to the governor he can act anyway. He clarified that when he
says "grant those permissions" he is not talking about by the
Legislative Budget and Audit Committee but by the statutes along
with whatever is put into the operating budget. Representative
Tuck related that this last year $1.6 billion came through the
Legislative Budget and Audit Committee. There are programs that
were never set up by the legislature, there are programs that
were never in existence, programs that the governor unilaterally
set up on his own. That is not the intent of the RPL process,
he stressed; [the legislature] is the appropriations body.
4:56:39 PM
REPRESENTATIVE CLAMAN stated he likes HB 177 because he didn't
like the process last year as he thought it was way too much
power to the governor and [the legislature] had given up too
much power as the appropriating body. He posed a scenario in
which the governor comes in with an RPL for $100 million and,
via negotiations before the committee ever sits, it becomes
clear that committee members don't want to agree to the $100
million. He asked whether, under the framework of HB 177, the
governor would be able to withdraw that RPL and resubmit an RPL
for $50 million.
REPRESENTATIVE TUCK answered yes and advised that that is the
way it is currently. As well, he said, that opportunity would
still be there through this legislation.
4:58:09 PM
REPRESENTATIVE TARR remarked that a main benefit of HB 177 is
that it would force "the already established program" to be used
the way it is supposed to be used. She cited the [2020]
business assistance program as an example of a program that was
done improperly, causing delay in businesses receiving the
funds. She stated that in addition to the separation of powers
and cleaning up of the process as identified by the courts, the
other benefit of HB 177 is that it would naturally mean that the
programs would already exist, and if additional funds were to
come through and if things needed to be changed, then there
would be the ability to do that.
REPRESENTATIVE TUCK recounted that as introduced to the
Legislative Budget and Audit Committee, the RPL for small
business relief funds was for loans, not grants. After the
committee said that would be a problem, he continued, the
governor pulled that RPL and re-submitted an RPL as grants.
However, the Alaska Industrial Development and Export Authority
(AIDEA), which only does loans, had already started a request
for proposal (RFP) process to get banking institutions to
administer those loans. Upon being converted to grants, the RFP
had to be modified and there was no response from financial
institutions; it took three RPLs to finally get institutions to
respond. The governor then ended up running the money for the
RPL process through the Department of Commerce, Community and
Economic Development (DCCED) because that is where grants are
administered, and then money was transferred to AIDEA and AIDEA
exercised its procurement policies to get institutions to do
that. So, Representative Tuck continued, it was very messy and
there are three questions: Did people receive the money who
really needed to receive the money? Did people get money who
should not have gotten the money? Did the program really do
what it was wanted to do? He said the answer is probably no on
all three questions. He stated he understands why, during a
pandemic, the vote was to overrule the [committee] chair to get
those monies out rather than to allow the full legislature to do
that. He said HB 177 would put up sidebars to prevent that from
happening again.
5:02:56 PM
REPRESENTATIVE TUCK addressed Section 1 of the bill. He said a
problem with the Legislative Budget and Audit Committee having
the powers to amend is the same problem that is had on the
second page, which is the committee having the power to stop an
RPL. He pointed out that currently the governor can act within
45 days after submitting an RPL if the Legislative Budget and
Audit Committee takes no action. He suggested a potential
amendment to the bill that would: stop [the governor] for 45
days for anything not exceeding $20 million; stop the governor
for 90 days for anything between $20 million and $50 million;
stop the governor for 180 days for anything between $50 million
and $100 million; and stop the governor for 270 days for
anything over $100 million if the Legislative Budget and Audit
Committee does not act. That would take it into the legislature
coming back into session, Representative Tuck explained. The
legislature has difficulty calling itself into a special
session, he continued, and if the governor doesn't call the
legislature into a special session to appropriate these funds,
then the governor cannot act until these timeframes are up.
This would give the legislature time to get its act together to
call a special session if the Legislative Budget and Audit
Committee did not approve an RPL.
REPRESENTATIVE TUCK, responding to Chair Kreiss-Tomkins, allowed
that the legislature does not like special sessions and said a
reason for having the RPL process is so special sessions can be
prevented. However, he added, a balance is needed so the
governor doesn't just do whatever he or she wants.
5:05:05 PM
REPRESENTATIVE EASTMAN asked whether the Legislative Budget and
Audit Committee can sponsor bills.
REPRESENTATIVE TUCK replied that because the Legislative Budget
and Audit Committee is a joint committee made up of both the
House and Senate, the only way the committee can introduce bills
is through the Rules Committee, much like the governor
introduces a bill through the Rules Committee. In this case, he
stated, he decided to introduce this legislation in the House.
5:05:48 PM
REPRESENTATIVE EASTMAN allowed he is not acquainted with the
procedures of the Legislative Budget and Audit Committee and
that this is his first time to deal with this statute. He drew
attention to the language on page 2, line 2, that states "not
initiate the additional activity". He asked whether this
language is still an artifact to the creation of a new activity
when what is being talked about now is the creation of a new
activity as well as spending a little bit more on the same type
of project. He further asked whether there might be a benefit
to making that more in line with the new language that is at the
beginning of Section 1. Responding to Representative Tuck for
clarification, he questioned whether the language "not initiate
the additional activity" captures the new statute because it
isn't just starting new projects that is being talked about, but
also conceivably spending additional money on the same project.
He suggested that the language read, "not make an expenditure
concerning the additional activity". He said it is the word
"initiate" that he is looking at and questioning whether that
word is still appropriate given the changes to the statute being
proposed.
REPRESENTATIVE TUCK replied that that is existing language. He
explained that what is being said is that if the Legislative
Budget and Audit Committee does not call itself into a committee
hearing to take up the RPL, or if the committee denies the RPL,
then the governor cannot go any further with the additional
activity. Therefore, he continued, he thinks the language [is
understandable], but he is open to how that can be improved.
Basically, it is additional activity according to a program
established by the legislature, signed by the governor, and
appropriated by the legislature.
5:08:54 PM
REPRESENTATIVE TUCK added that there were three classifications
of inappropriate RPLs seen by the Legislative Budget and Audit
Committee this year. One was setting up the governor's own
program; another was appropriating money which the governor had
previously vetoed; and the third was putting into an RPL items
in the capital budget that [the legislature] did not pass. He
stated that if the governor vetoes something, then it isn't
prescribed by law to have that program. One such vetoed program
was the community assistance program, which the governor then
appropriated around the legislature.
REPRESENTATIVE EASTMAN asked what an appropriate remedy would be
when a governor takes the aforementioned kind of liberty with an
appropriation.
REPRESENTATIVE TUCK answered that that is something for the
court to decide; he would have liked for the court case to go a
little further. He said he originally thought the lawsuit would
come from a municipality rather than from outside, and it was
only an injunction, not a full discussion about the
appropriateness of the RPL process and the way the governor is
using it. A lawsuit is needed that continues all the way to the
supreme court, he continued, and then the judges would decide a
remedy. However, he said, he doesn't think the remedy would be
anything more than "don't do it again" because the money has
been appropriated. [There need to be] checks and balances to
ensure that that activity doesn't happen anymore, he added.
CHAIR KREISS-TOMKINS stated that he, too, wishes the lawsuit by
Mr. Forrer and Mr. Geldhof had reached a conclusion of the
Alaska Supreme Court just to have the clarity regarding
appropriation powers and executor discretion.
5:11:55 PM
CHAIR KREISS-TOMKINS announced that HB 177 was held over.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 177 Research RPL History Summary.pdf |
HSTA 5/13/2021 3:00:00 PM |
HB 177 |
| SB 47 Letter of Support - Carrothers 5.11.21.pdf |
HSTA 5/13/2021 3:00:00 PM |
SB 47 |
| HB 118 Amendment B.7 - Kreiss-Tomkins and Vance.pdf |
HSTA 5/13/2021 3:00:00 PM |
HB 118 |