03/03/2009 08:00 AM House COMMUNITY & REGIONAL AFFAIRS

HB 153-OPEN MEETINGS: EXCEPTION AND DEFINITION                                                                                
                                                                                                                                
9:05:14 AM                                                                                                                    
                                                                                                                                
CO-CHAIR HERRON announced that the  final order of business would                                                               
be  HOUSE  BILL NO.  153,  "An  Act exempting  municipal  boards,                                                               
committees,  commissions,  or  other   similar  bodies  from  the                                                               
requirements of  conducting meetings  open to  the public  when a                                                               
meeting is  administrative or managerial in  nature; and amending                                                               
the definition of 'meeting' as  it relates to public governmental                                                               
meetings."                                                                                                                      
                                                                                                                                
9:05:50 AM                                                                                                                    
                                                                                                                                
RENE BROKER, Attorney, Fairbanks  North Star Borough, speaking on                                                               
behalf of the Fairbanks North  Star Borough, testified in support                                                               
of HB  153 because  it fixes two  unintended consequences  of the                                                               
Open Meetings Act.  The  fixes don't affect the fundamental goals                                                               
and intent  of the Act.   Ms.  Broker relayed that  [the borough]                                                               
has no desire  to undermine the public's right to  know what it's                                                               
government  is  doing  and to  participate  in  important  policy                                                               
decisions  the government  is  making.   She  explained that  the                                                               
legislation adds  a very  narrow exception,  which is  limited to                                                               
municipal   boards   when   they're  meeting   solely   to   make                                                               
administrative or  managerial decisions.   This change  serves to                                                               
make  a  distinction  from governmental  functions  that  already                                                               
exist  in  the Open  Meetings  Act.    The existing  Act  already                                                               
recognizes   that  one   can't  effectively   perform  day-to-day                                                               
administration  functions  and comply  with  the  Act.   The  new                                                               
language extends  the existing narrow exemption  to the situation                                                               
when  the administrative  functions  are  performed by  volunteer                                                               
boards  and commissions  rather  than municipal  employees.   For                                                               
example, a  borough public  works department  in charge  of roads                                                               
would  receive  funding  from  the local  assembly,  be  given  a                                                               
budget, and  municipal employees would make  decisions about day-                                                               
to-day administrative  decisions regarding  what potholes  to fix                                                               
and   which  intersections   needed   brushing  for   visibility.                                                               
However,  second  class  boroughs  don't have  public  works  but                                                               
rather  have road  service areas  that  are subject  to the  Open                                                               
Meetings  Act.   Therefore, the  legislation specifies  that when                                                               
the  road  service  area  staff  are  performing  functions  that                                                               
municipal  employees  would  otherwise perform,  they  should  be                                                               
exempt [from  the Open  Meetings Act as  well].   The legislation                                                               
also  includes  a change  to  address  the  anomaly in  the  Open                                                               
Meetings   Act,   which   includes   two   completely   different                                                               
definitions of  what constitutes  a meeting.   The  Open Meetings                                                               
Act has a definition that  applies to policy-making bodies, those                                                               
bodies  that   are  actually  making  decisions   that  bind  the                                                               
municipality.   The  aforementioned  definition  has a  numerical                                                               
standard with which  everyone is likely very  familiar.  However,                                                               
the  definition in  the Open  Meetings Act  that only  applies to                                                               
advisory bodies, which can't bind  the municipality, but can only                                                               
make a  recommendation.  The aforementioned  definition lacks the                                                               
numerical standard, and therefore  results in a stricter standard                                                               
of meeting  for those  advisory bodies.   Ms. Broker  opined that                                                               
the aforementioned  wasn't intended.   In conclusion,  Ms. Broker                                                               
related  that the  proposed changes  make the  Open Meetings  Act                                                               
stronger, more workable, and more practical.                                                                                    
                                                                                                                                
9:11:56 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE HARRIS, recalling  his time as a  mayor and member                                                               
of a  city council,  said that  he understands  the difficulties.                                                               
He then  inquired as  to why  there's no  backup from  the Alaska                                                               
Municipal League (AML) or any other local governmental entities.                                                                
                                                                                                                                
MS.  BROKER   answered  that  the   matter  is   currently  being                                                               
considered by AML.   As an active member and  former president of                                                               
the  Municipal Attorneys  Association, Ms.  Broker said  that she                                                               
has had a lot of contact  with others, the Mat-Su Borough and the                                                               
Kenai Peninsula Borough, with the same problem.                                                                                 
                                                                                                                                
REPRESENTATIVE HARRIS  remarked that Valdez has  the same problem                                                               
as well.   He then  recalled that Cordova  had the worst  case in                                                               
the state with this problem.   Representative Harris related that                                                               
he is fully in favor of [HB 153].                                                                                               
                                                                                                                                
9:14:16 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  CISSNA  expressed the  need  to  hear from  other                                                               
communities  on this  matter.   She  acknowledged  that it  isn't                                                               
reasonable  to  have boards  and  commissions  rise to  a  higher                                                               
standard  than larger  more important  [entities].   However, she                                                               
expressed  concern   with  the   administrative  aspect   of  the                                                               
legislation  as she  didn't recall  boards and  commissions being                                                               
administrative in function.                                                                                                     
                                                                                                                                
9:16:36 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE KELLER inquired as to  the intent of the co-chairs                                                               
with HB 153.                                                                                                                    
                                                                                                                                
CO-CHAIR HERRON related  that he has some concerns  that he would                                                               
like  to  voice  after  the   remaining  witness,  and  then  the                                                               
committee could consider moving out the legislation later.                                                                      
                                                                                                                                
9:17:04 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  KELLER inquired  as  to the  legal definition  of                                                               
administrative or managerial.                                                                                                   
                                                                                                                                
MS.  BROKER explained  that the  mayor and  his/her staff  are in                                                               
charge   of  the   administrative/managerial  functions   of  the                                                               
borough.   She noted her  agreement that it's unusual  for boards                                                               
and   commissions   to  perform   the   administrative/managerial                                                               
functions because  they usually only make  recommendations to the                                                               
assembly or the mayor.  In  the Fairbanks North Star Borough, and                                                               
most other  boroughs, the [boards  and commissions]  that perform                                                               
administrative/managerial functions  are limited to  road service                                                               
areas and fire service areas.                                                                                                   
                                                                                                                                
9:19:20 AM                                                                                                                    
                                                                                                                                
LUKE  HOPKINS, Member,  Fairbanks  North  Star Assembly;  Member,                                                               
Alaska  Municipal  League,  spoke  in   favor  of  HB  153.    He                                                               
characterized the two  changes to the Open  Meetings Act embodied                                                               
in HB 153  as reasonable.  He then echoed  earlier testimony that                                                               
AML has a resolution on this  matter that the AML board will hear                                                               
in April.   Mr.  Hopkins related his  understanding that  the AML                                                               
board member from  the Anchorage Assembly is in favor  of this as                                                               
were almost all of the [members from the] Southeast communities.                                                                
                                                                                                                                
9:22:54 AM                                                                                                                    
                                                                                                                                
CO-CHAIR MUNOZ  opined that the  language "meetings  of municipal                                                               
boards, committees,  commissions, or other similar  bodies" seems                                                               
to be  broad.   However, the  intent is  to address  service area                                                               
boards, specifically.   She opined that amending  the language to                                                               
state "meetings by service  area boards, committees, commissions,                                                               
or other similar bodies ..."  would provide clarity.  The current                                                               
language  leaves  open  to  interpretation  such  that  it  could                                                               
include enterprise  boards.  Co-Chair Munoz  said she understands                                                               
Representative Cissna's  concern, but  related that  she believes                                                               
more specificity could address the  situation the Fairbanks North                                                               
Star Borough faces.                                                                                                             
                                                                                                                                
9:24:15 AM                                                                                                                    
                                                                                                                                
CO-CHAIR HERRON related  that although he supports  the intent of                                                               
HB 153,  he has  some concerns  with the Open  Meetings Act.   He                                                               
recalled that  when he was the  city manager of Bethel  there was                                                               
litigation regarding  open meetings.  Co-Chair  Herron then noted                                                               
his agreement  with Co-Chair Munoz  that the language may  be too                                                               
broad such  that an entity  might inadvertently violate  the Open                                                               
Meetings Act.  He suggested  working with the borough, developing                                                               
some amendments,  and hearing the  legislation again at  the next                                                               
meeting.                                                                                                                        
                                                                                                                                
9:25:43 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE HARRIS  pointed out  that [the  legislature] tends                                                               
to bend  over backwards to regulate  the law bodies, such  as the                                                               
legislature  and city  councils.   However, he  opined that  more                                                               
laws  are implemented  through  regulation  by the  gubernatorial                                                               
administration,  municipal  administrations  yet  these  entities                                                               
aren't governed  by the Open  Meetings Act.   The laws  passed by                                                               
the  legislature are  governed  by the  regulations  formed in  a                                                               
closed   environment.      He    expressed   concern   with   the                                                               
aforementioned.                                                                                                                 
                                                                                                                                
9:29:17 AM                                                                                                                    
                                                                                                                                
CO-CHAIR  HERRON concurred  with Representative  Harris' remarks,                                                               
and then  said he  would work  with the  borough to  develop some                                                               
better language.                                                                                                                
                                                                                                                                
9:29:43 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE CISSNA  commented that specificity would  clear up                                                               
her  concerns.    She  then  expressed the  desire  to  put  this                                                               
legislation before other communities.                                                                                           
                                                                                                                                
9:30:21 AM                                                                                                                    
                                                                                                                                
CO-CHAIR HERRON said he intends to deliver an improved piece of                                                                 
legislation to the next committee of referral, the House                                                                        
Judiciary Standing Committee.                                                                                                   
                                                                                                                                
[HB 153 was held over.]