Legislature(1995 - 1996)

02/20/1995 01:34 PM House FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
  HOUSE BILL NO. 183                                                           
                                                                               
       "An  Act  extending  the  requirements  of  preliminary                 
       evaluation, notice,  and prior legislative  approval of                 
       certain lease-purchase agreements  to include  proposed                 
       improvements  to  real property;  and providing  for an                 
       effective date."                                                        
                                                                               
  Co-Chair Hanley, sponsor of HB 183, gave a brief overview of                 
  the legislation.   He referred to problems past legislatures                 
  have  experienced with  certificates of  participation.   He                 
  emphasized that  past  legislatures  have  enacted  laws  to                 
  restrict  financing  and  require legislative  approval  for                 
  acquisition by issuance of certificates of participation.                    
                                                                               
  Co-Chair  Hanley  noted  plans  by  the  Alaska  Psychiatric                 
  Institute  (API) to  use  certificates of  participation  to                 
  finance a $63.0  million dollar  facility.  The  Legislature                 
  approved funding  for the  constriction of  a $28.0  million                 
  dollar facility in the FY 95 operating budget.   He observed                 
  that current  statutes address  "acquisition" of  facilities                 
  not  "building" of facilities.   The legal  argument is that                 
  certificates  of  participation  do  not  represent  general                 
  obligation  debt to  the  State.   Debt  on certificates  of                 
  participation is secured  by the asset.  He noted  that if a                 
  new  API  building  is expanded,  beyond  the  $28.0 million                 
  dollars authorized  by the  legislature, an  asset could  be                 
  claimed in which the State has invested.  He emphasized that                 
  there   is   no  limit   on   spending  if   certificate  of                 
  participation financing is used.                                             
                                                                               
  Co-Chair Hanley explained that  the legislation will address                 
  the problem  by adding "or  improvement" to the  property to                 
  prevent improvement through lease-purchase of real property.                 
                                                                               
  Representative   Brown   queried   if   the   addition    of                 
  "improvement"   would   address   the  intent   to   prevent                 
  construction   of   new   facilities   without   legislative                 
  authorization.                                                               
                                                                               
  Representative   Parnell   agreed  that   the   addition  of                 
  "construct"  would   further  modify  the   legislation  and                 
  alleviate confusion.   He concluded that the  legislation as                 
  written would address  the problem.   He explained that  the                 
                                                                               
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  underlying land is real property.   The legislation requires                 
  legislative authorization for improvement of real  property.                 
  Any building  on real property would  constitute improvement                 
  of the property.                                                             
                                                                               
  Representative  Martin  provided  members with  Amendment  1                 
  (Attachment 1).  The amendment would  limit the authority of                 
  the Alaska Housing  Finance Corporation (AHFC) to  use money                 
  or another asset  of the corporation to  acquire, construct,                 
  improve, or repair  a building for the corporation's use and                 
  occupancy.     Representative  Martin  observed   that  AHFC                 
  approached the  Legislative Budget and Audit  Committee with                 
  the  concept of  constructing a new  building.   He observed                 
  that the  Legislative Budget  and Audit  Committee does  not                 
  have the authority to approve  total appropriations for long                 
  range contracts.   He  pointed out  that a  majority of  the                 
  Legislature does not currently approve  of this budget item.                 
  He observed that AHFC has contracted out for an architecture                 
  design of a new building.  Land has not yet been purchased.                  
                                                                               
  Representative  Martin  accentuated  that all  Requests  For                 
  Proposal's for lease or purchase of office space are subject                 
  to annual appropriation  by the legislature.   He emphasized                 
  that the amendment would close another  loop hole and send a                 
  message to AHFC.                                                             
                                                                               
  Representative  Brown  agreed  with Representative  Martin's                 
  concerns, but pointed out the broad nature of the amendment.                 
  She  questioned  if  AHFC's   ability  to  repair   existing                 
  facilities  should  be   restricted.     She  asked  if   an                 
  appropriation  through  the  budget   process  would  be  an                 
  authorization.                                                               
                                                                               
  Representative Martin argued in favor of retaining "repair".                 
  He noted that a repair could be a major face lift.                           
                                                                               
  Representative Therriault asked for further clarification of                 
  the  last  sentence  on line  11  of  the  amendment:   "For                 
  purposes  of  this  subsection,  an  appropriation  for  the                 
  proposed acquisition, construction,  improvement, or  repair                 
  does not constitute approval of the project."                                
                                                                               
  RANDY   WELKER,   LEGISLATIVE  AUDITOR,   LEGISLATIVE  AUDIT                 
  DIVISION                                                                     
  explained that the  language was drafted by the  Division of                 
  Legal Services.   He  noted that  the amendment was  drafted                 
  with the  intention of  implementing the  strictest standard                 
  requiring legislative  approval.   He observed  that in  the                 
  leasing section of the procurement code, for the purpose  of                 
  a lease,  an appropriation does constitute approval.  In the                 
  lease financing section of existing statute an appropriation                 
  does not constitute approval.  Separate legislative approval                 
                                                                               
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  is required by law.                                                          
                                                                               
  MIKE GREANY, DIRECTOR,  LEGISLATIVE FINANCE DIVISION pointed                 
  out that  language contained  in  the front  section of  the                 
  operating budget provides that all  funding received by AHFC                 
  is appropriated to AHFC for  whatever purpose their statutes                 
  allow.                                                                       
                                                                               
  Mr.  Greany  clarified  that  any  project  exceeding  $25.0                 
  thousand dollars which continues beyond a year is considered                 
  a capital project.                                                           
                                                                               
  Mr. Welker  noted that  the amendment  is very  restrictive.                 
  The  Alaska  Housing Finance  Corporation's ability  to make                 
  repairs on  their existing  facility would  be limited.   He                 
  observed  that  elimination  of  "repair"  would   allow  an                 
  appropriation to constitute approval for a repair.                           
                                                                               
  Representative Navarre spoke in  support of allowing repairs                 
  without legislative  approval.   He  acknowledged that  AHFC                 
  should be required  to obtain  legislative approval for  new                 
  construction.                                                                
                                                                               
  Representative  Therriault  questioned   if  two  pieces  of                 
  legislation would  be needed  to allow  new construction  by                 
  AHFC if HB 183 is enacted.                                                   
                                                                               
  Mr. Welker stated  that appropriation legislation would  not                 
  be  enough.     Authorizing  legislation  would  be  needed.                 
  Representative Therriault queried if authorizing legislation                 
  would suffice without a separate appropriation.                              
                                                                               
  Representative  Brown  did   not  think  that  appropriation                 
  legislation  would  be  needed   separate  from  authorizing                 
  legislation.  She pointed out that the legislation  will not                 
  be  adopted in time  to prevent construction  of the project                 
  currently being proposed by AHFC.                                            
                                                                               
  Representative  Martin  asserted  that  two  bills  would be                 
  necessary.  Co-Chair Hanley pointed out that lease-purchases                 
  are handled  differently  than  actual  construction.    New                 
  building construction  does not require  authorization other                 
  than  in an  appropriation  bill.    Representative  Navarre                 
  agreed that  absent specific  statutory prohibition  against                 
  construction an appropriation is sufficient.                                 
                                                                               
  Co-Chair  Hanley   asked  if   an  appropriation   from  the                 
  legislature is necessary  for any  of the AHFC's  functions.                 
  He concluded that if statutes  require an appropriation from                 
  the  legislature  for  any  of   AHFC's  functions  then  an                 
  authorization law and appropriation would be required.                       
                                                                               
                                                                               
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  Mr. Welker pointed out that AHFC can use its general bonding                 
  authority to generate bond proceeds which are not subject to                 
  an appropriation in order to  raise capital.  The  amendment                 
  clarifies  that  AHFC  cannot  use  their  general   bonding                 
  authority to acquire facilities.                                             
                                                                               
  Representative Navarre observed that  another housing market                 
  down-turn could result  in AHFC's control of  houses needing                 
  repair before resale.                                                        
                                                                               
  Representative  Martin  referred  to  the  purchase  of  the                 
  Department of Environmental Conservation building.  Co-Chair                 
  Hanley  reiterated the  need  to  close  loop holes  in  the                 
  statutes.                                                                    
                                                                               
  Representative Therriault concluded that AHFC would not need                 
  a   separate  line   item  appropriation   in  addition   to                 
  authorizing legislation.   Co-Chair Hanley  agreed with  his                 
  conclusion.                                                                  
                                                                               
  Representative Parnell pointed  out that  an improvement  to                 
  property is  a repair.  He  asked if there are  other public                 
  agencies or quasi  public corporations  like AHFC that  have                 
  similar bonding authority which should be addressed.                         
                                                                               
  Mr.  Welker  noted that  the  legal definition  of "improve"                 
  includes  "to increase the value or good qualities of, mend,                 
  repair".                                                                     
                                                                               
  Representative  Brown suggested  that the  Alaska Industrial                 
  Development  and Export  Authority  (AIDEA)  and the  Alaska                 
  Railroad  Corporation  may be  in  similar situations.   Mr.                 
  Welker  added  that  certain aspects  of  the  University of                 
  Alaska's operations are not subject  to the Executive Budget                 
  Act.                                                                         
                                                                               
  Representative  Brown observed AHFC's  duties and powers are                 
  the subject of HB  189:  "An Act requiring that, in addition                 
  to  its  operating  budget,  all  activities of  the  Alaska                 
  Housing  Finance Corporation  are subject  to the  Executive                 
  Budget Act."   She suggested that the amendment be addressed                 
  in HB 189.                                                                   
                                                                               
  Representative  Martin  acknowledged  that  HB  189 is  more                 
  inclusive and  resolves the  long range problem.   He  noted                 
  that if AHFC pursues the construction project an increase in                 
  the  FY  96   or  FY   97  AHFC  budget   will  be   needed.                 
  Representative  Brown  observed that  the  amendment is  not                 
  retroactive.    Representative  Martin  emphasized that  the                 
  amendment  would send  a message  to AHFC.   Co-Chair Hanley                 
  suggested  that the Legislative  Budget and  Audit Committee                 
  made the Legislature's position clear.                                       
                                                                               
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  Representative  Kohring pointed out  that AHFC  has received                 
  the message that there is concern about  proceeding with the                 
  construction.   He assured members that AHFC  will look hard                 
  at putting  the breaks  on the  project  if the  Legislature                 
  disapproves.  He  noted that  AHFC is currently  determining                 
  the ramifications of cancelling the contracts.                               
                                                                               
  Representative Martin asserted that AHFC did not provide the                 
  legislature with all the available facts.  He reiterated the                 
  need to close a loop hole regarding lease-purchases.                         
                                                                               
  Representative  Kohring  asked  for a  list  of  other state                 
  agencies which are not  subject to the Executive Budget  Act                 
  in regards to bonding authority.                                             
                                                                               
  (Tape Change, HFC 95-24, Side 1)                                             
                                                                               
  Representative  Kohring stressed  that AHFC  felt that  they                 
  could  save the  State  money.   He  emphasized that  AHFC's                 
  intent was good.                                                             
                                                                               
  Representative Navarre  referred  to the  5 percent  housing                 
  loan program initiated by AHFC.                                              
                                                                               
  Amendment 1 was held.                                                        
                                                                               
  HB 183 was HELD in Committee for further discussion.                         

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