Legislature(1999 - 2000)
04/26/1999 03:25 PM House L&C
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 183 - ALASKA PUBLIC UTILITIES COMMISSION [Contains discussion relevant to SB 133.] Number 1252 CHAIRMAN ROKEBERG announced that the committee's next order of business is HB 183, "An Act relating to the powers and duties of the chair of the Alaska Public Utilities Commission; relating to membership on the Alaska Public Utilities Commission; and relating to the annual report of the Alaska Public Utilities Commission." The chairman indicated communications had been made with the other body since HB 183's April 23 hearing with Mr. Wilcox's presentation of the House Special Committee on Utility Restructuring's committee substitute for HB 183, CSHB 183(URS) [Walt Wilcox, aide to the House Special Committee on Utility Restructuring]. Chairman Rokeberg noted the committee has several amendments suggested by various parties and that Representative Halcro has provided an additional amendment. The chairman indicated his intention to take up the amendments and bring forth a committee substitute (CS) for examination, noting HB 183 has no further committees of referral. Chairman Rokeberg noted this would also allow the committee to have a better feel for what is happening in the other body regarding legislation that could be along the same lines. Number 1355 REPRESENTATIVE MURKOWSKI noted she had a question at the conclusion of the previous week's hearing [April 23] about the removal process [of a commissioner by the governor]. Mr. Baldwin had indicated he would be available at this hearing for testimony. Representative Murkowski indicated the removal process is in Section 2 of CSHB 183(URS). [CSHB 183(URS), Section 2 read: * Sec. 2. AS 42.05.035 is repealed and reenacted to read: Sec. 42.05.035. Removal of commissioners. The governor may remove a commissioner from office only for inefficiency, neglect of duty, or misconduct in office, or because the member, while serving on the commission, is convicted of a misdemeanor for violating a statute or regulation related to public utilities or is convicted of a felony. The governor shall deliver to the commissioner a copy of the charges against the commissioner. The commissioner shall have an opportunity to present a defense in person or through counsel at a public hearing before the governor or the governor's designee. The commissioner shall be informed of the hearing by registered mail at least 10 days before the hearing date. At the hearing, the commissioner may confront and cross-examine adverse witnesses. Upon removal of the commissioner, the findings and a complete statement of all charges made against the commissioner shall be filed in the Office of the Lieutenant Governor.] Number 1384 JIM BALDWIN, Assistant Attorney General, Governmental Affairs Section, Civil Division (Juneau), Department of Law came forward. REPRESENTATIVE MURKOWSKI asked her question, noting it had been more of a general question. In Section 2, she thinks there is a very vague wording and reviewed the language relating the commissioner's defense. She requested an explanation of how this public process is envisioned, asking what one would have to go through in order to remove a commissioner under this CS. MR. BALDWIN responded that this language is similar to the language in AS 16.05.280, applying to the Board of Fisheries and the Board of Game, and is also fairly similar to the language in AS 31.05.007[(d)] applying to the Alaska Oil and Gas Conservation Commission (AOGCC). [AS 16.05.280 read: Sec. 16.05.280. Removal of board members. The governor may only remove a board member for inefficiency, neglect of duty, or misconduct in office, or because the member while serving on the board is convicted of a misdemeanor for violating a statute or regulation related to fish or game or of a felony, and shall do so by delivering to the member a written copy of the charges and giving the member an opportunity to be heard in person or through counsel at a public hearing before the governor or a designee upon at least 10 days' notice by registered mail. The member may confront and cross-examine adverse witnesses. Upon removal, the governor or a designee shall file in the proper state office the findings and a complete statement of all charges made against the member.] [AS 31.05.007(d) read: Sec. 31.05.007. Term of office; vacancy; removal. (d) The governor may remove a commissioner from office for cause including but not limited to incompetence, neglect of duty or misconduct in office. A commissioner, to be removed for cause, shall be given a copy of the charges and afforded an opportunity to be publicly heard in person or by counsel in the commissioner's own defense upon not less than 10 days' notice. If a commissioner is removed for cause, the governor shall file with the lieutenant governor a complete statement of all charges made against the commissioner and the governor's finding based on the charges, together with a complete record of the proceedings.] MR. BALDWIN noted that because the officer has a property interest in the office, in this case a salary is involved, due process has to be accorded for removal. Normally the governor would appoint a qualified hearing officer who is usually legally trained, although legal training is not necessary. Mr. Baldwin explained that the process is one in which there is a basic right to confront witnesses that have been brought forward in support of the grounds for removal. The officer who is charged or is defending his/her title to the office has a right to examine and put in evidence before the hearing officer. The hearing officer creates a record and makes a recommendation to the governor. The governor makes the ultimate decision, and, hopefully, the record supports that decision. REPRESENTATIVE MURKOWSKI noted, then, that the governor is the final decision-maker. MR. BALDWIN replied that he believes that is what is intended; it is a recommended decision which goes to the governor. Number 1535 REPRESENTATIVE MURKOWSKI understands, from her reading of one of the reports, that the [Alaska Public Utilities Commission (APUC)] chairman receives the same salary as the other commissioners. She asked if this is correct. MR. BALDWIN believed that is correct. REPRESENTATIVE MURKOWSKI indicated she assumes that the chair would be paid somewhat more if he/she is being given truly broadened powers or authorities as outlined in CSHB 183(URS). MR. BALDWIN replied he does not know the answer to that. He does not know what the thought would be in that area. REPRESENTATIVE MURKOWSKI noted that concluded her questions. Number 1610 CHAIRMAN ROKEBERG said to Mr. Baldwin that he is concerned with one of the amendments, marked H.3, regarding consumer complaints. The chairman asked if Mr. Baldwin saw any problems with this amendment or cared to comment on it. [Amendment H.3, labeled 1-LS0764\H.3, Cramer, 4/21/99, read: Page 1, line 5, following ";": Insert "relating to provisions for the resolution of consumer complaints;" Page 3, following line 19: Insert a new bill section to read: "* Sec. 7. AS 42.05 is amended by adding a new section to read: Sec. 42.05.165. Consumer complaints. The commission shall by regulation provide for (1) the expedited hearing and resolution of consumer complaints; and (2) penalties against a party to a complaint who causes unjustified delays in a consumer complaint proceeding." Renumber the following bill sections accordingly.] MR. BALDWIN indicated that there may be some constraints regarding can be done by regulation as far as prescribing penalties. If the intention is to impose a criminal-type penalty, he is not so sure there is the power to do that by regulation. CHAIRMAN ROKEBERG stated these are sanctions he is contemplating because it would be for delaying or other tactics. MR. BALDWIN added, "Something within - within the, not - not some criminal (indisc.)." CHAIRMAN ROKEBERG mentioned it is common to file for extensions as a legal delaying tactic. He said those are the types of things to be avoided. Number 1749 MR. BALDWIN noted the only comment he would have offhand is that there is only so much that can be done by regulation, if that is the thinking. Mr. Baldwin indicated he did not see anything with the rest of it, but would be happy to consult with his colleagues who work with the commission every day. CHAIRMAN ROKEBERG reiterated the intention is see whether to adopt some of these amendments at this hearing and bring forward another CS. The chairman indicated he would be interested in Mr. Baldwin's comments at the next hearing [April 28] on any of the items the committee might adopt. The chairman indicated this would also be forwarded to the APUC and other interested parties. REPRESENTATIVE MURKOWSKI, returning to the public hearing process, questioned that there is nothing in the current language that would put any kind of a time frame on it. Mentioning due process, expediency, et cetera, she asked if it would be Mr. Baldwin's suggestion that there be any kind of a time frame within which the which the charges go to the governor and a hearing be appointed. Number 1853 MR. BALDWIN replied that one of the things that always bothers him about these kinds of hearings is that they always turn into trial-type proceedings. Although the initial idea is that it will be a simple administrative hearing, it always turns into something else. Mr. Baldwin expressed that it is probably good there is the latitude for that when warranted by a particular case. It can turn into a full trial-type proceeding. He indicated the language in CSHB 183(URS) leaves this pretty open-ended: There is a notice period and it is a fairly quick time for the public officer to have to respond. Mr. Baldwin indicated, however, in the one other incident he has had experience with, there was a very involved factual proceeding and in order to accord the appropriate due process, "things just sort of had to run their course." While attempting to specify deadlines to compress the proceedings might be desirable from a management standpoint, this may not meet the actual needs of the situation. In other words, the hearing officer may have to be developing theories for why these statutory deadlines need to be extended. Therefore, it might not be wise to stipulate those deadlines. Once there is a hearing officer "on scene" who can assess the facts of the case, that person normally proscribes an order for proceeding and that order is followed. He recommended not being too specific. REPRESENTATIVE MURKOWSKI noted discussion at the previous hearing of "inefficiency" and asked if Mr. Baldwin could speak to that. Number 1980 MR. BALDWIN indicated he had done some research regarding this and suggested the committee might want to pick up the language in AS 31.05.007 [relating to the AOGCC], "The governor may remove a commissioner from office for cause including ...". Mr. Baldwin explained this language is very close to the language in CSHB 183(URS), but he noted "cause" is a legal concept which connotes some basic problem and not just mere inefficiency. Mr. Baldwin indicated the current language in CSHB 183(URS) is based on AS 16.05.280 [Boards of Fisheries and Game] which does not contain the lead-in language about "for cause, including ...". Number 2058 REPRESENTATIVE MURKOWSKI commented she reads the language in CSHB 183(URS) as "removed 'only' for inefficiency, neglect of duty, misconduct, or because ...". Representative Murkowski noted Mr. Baldwin is suggesting "including" language. This perhaps is more appropriate than the narrower "only" language. MR. BALDWIN indicated he prefers the AOGCC language, AS 31.05.007(d), to the Boards of Fisheries and Game language, AS 16.05.280, that CSHB 183(URS) was based on because the AOGCC language interjects "cause". Mr. Baldwin believes it is implied [in the current language] that cause is the basic ground for removal, but it does not mention it. CHAIRMAN ROKEBERG questioned, "Better than the Oil and Gas?" MR. BALDWIN answered in the affirmative, adding, "There's just a slight change because it mentions (indisc.) may be room for cause including..." CHAIRMAN ROKEBERG agreed. He questioned that "cause" is a term of art. MR. BALDWIN answered that it is a legal concept; it is a basic reasonable finding that there is a justified reason for removing someone. Mr. Baldwin relayed that he is having a hard time articulating it the way the courts say it, noting, "Just because somebody didn't show up for work on one day, or because someone can't seem to get their thoughts organized to do their work - it implies something more basic than that, that affects the public interest the way the office is being exercised, things of that nature." Number 2189 REPRESENTATIVE HALCRO noted the reference to "neglect of duty" in CSHB 183(URS). Representative Halcro noted one of the complaints heard is that a number of the commissioners take an extended period off. He commented, "I think somebody said six weeks; somebody is a commercial fisherman, they leave for six weeks. Could that be construed of neglect of duty ...?" MR. BALDWIN responded he is not sure of the facts Representative Halcro is referring to. Mr. Baldwin indicated one of the problems would be whether it was authorized leave. If the leave was authorized, there would not be the basic element that something is occurring contrary to the public interest. Mr. Baldwin indicated the "cause" requirement is a safeguard, a standard, in certain respects, to protect the public interest but also the public officer who has a property right in the office. A certain level of proof must be reached to show that there is a basic ground or cause for removal, and it requires some sort of violation of the public interest. Mr. Baldwin noted it is a term with a lot of legal meaning, a lot of case law. CHAIRMAN ROKEBERG informed the committee there are a number of people listening via teleconference. With that, the chairman stated he would entertain a conceptual amendment on page 2 from Representative Murkowski to remove "inefficiency" and add "cause" and so forth. Number 2361 REPRESENTATIVE MURKOWSKI made a motion to amend the legislation [CSHB 183(URS)] beginning on page 2, line 1, after "for" by deleting "inefficiency, neglect of duty, or misconduct in office" and inserting "for cause including but not limited to incompetence, neglect of duty or misconduct in office,". [CSHB 183(URS), Section 2, as conceptually amended would read: * Sec. 2. AS 42.05.035 is repealed and reenacted to read: Sec. 42.05.035. Removal of commissioners. The governor may remove a commissioner from office only for cause including but not limited to incompetence, neglect of duty or misconduct in office, or because the member, while serving on the commission, is convicted of a misdemeanor for violating a statute or regulation related to public utilities or is convicted of a felony. ...] CHAIRMAN ROKEBERG called a brief at-ease for a tape change. TAPE 99-47, SIDE A Number 0001 REPRESENTATIVE MURKOWSKI repeated the amendment. Representative Murkowski explained this then leaves in the language regarding conviction of a misdemeanor or a felony. CHAIRMAN ROKEBERG indicated the amendment would be conceptual, mentioning he thinks the [legislative] drafting manual would not require the "not limited to". He asked if there were any questions. Number 0101 REPRESENTATIVE HARRIS wondered if there are definitions for "incompetence" and "cause". CHAIRMAN ROKEBERG noted "cause" is a legal term of art, referring the question to Mr. Baldwin. MR. BALDWIN responded that "cause" is a term which has a lot of meaning that has been established over many, many years and a lot of court cases. He explained it basically means that there has to be some rational, reasonable basis for the claim of incompetence. REPRESENTATIVE HARRIS asked who determines that. MR. BALDWIN replied that it is ultimately determined by a hearing officer after taking evidence; the hearing officer makes a recommendation to the governor who makes the ultimate decision. That decision can then be appealed to a court of competent jurisdiction. CHAIRMAN ROKEBERG wondered if the same applied to "incompetence". MR. BALDWIN indicated it would be the same thing; all of these grounds are subject to the same kind of an analysis. CHAIRMAN ROKEBERG mentioned something about an exhaustive discussion of incompetence, indicating this had possibly taken place a few years previously and Representative Brice might remember this. The chairman confirmed there were no further questions for Mr. Baldwin. Chairman Rokeberg asked if there was any objection to adopting the conceptual amendment, indicating this would be termed Amendment 1. There being none, Amendment 1 was adopted. Number 0249 CHAIRMAN ROKEBERG designated Amendment H.2 as Amendment 2. The chairman referred to the amendments before the committee, noting there was H.2, H.3., H.4 plus an accompanying amendment to H.4, H.6, H.7, and Representative Halcro's amendment. Chairman Rokeberg indicated the amendments would be numbered in accordance with their numbers, and Representative Halcro's amendment would be designated Amendment 8. The chairman noted, in addition, he has an amendment to the amendment to Amendment H.4. Number 0345 CHAIRMAN ROKEBERG made a motion to adopt Amendment 2. Amendment 2, labeled 1-LS0764\H.2, Cramer, 4/21/99, read: Page 1, line 5, following ";": Insert "relating to a management information system;" Page 4, following line 1: Insert a new bill section to read: "* Sec. 9. MANAGEMENT INFORMATION SYSTEM. The legislature encourages the Alaska Public Utilities Commission to continue to develop its management information system and to make the system available to utilities and to the public." Renumber the following bill sections accordingly. REPRESENTATIVE MURKOWSKI objected for purposes of discussion. CHAIRMAN ROKEBERG stated that he would like to make an amendment to the amendment. The chairman indicated that he would like to include "electronically available and Internet availability". He feels this is a major issue. REPRESENTATIVE MURKOWSKI spoke to her objection, referring to testimony at the last hearing [April 23] from either Mr. Yould [Eric Yould, Executive Director, Alaska Rural Electric Cooperative Association, Incorporated (ARECA)] or Mr. Rowe [Jim Rowe, Executive Director, Alaska Telephone Association (ATA)]. Representative Murkowski noted the April 22, 1999, letter in the bill packet co-authored by both Mr. Rowe and Mr. Yould. She commented they had recommended that the management information system language be strengthened. [The relevant portion of Mr. Yould's and Mr. Rowe's joint 4/22/99 letter read: Although we are aware that the APUC is developing a Management Information System for their dockets, we think a legislative directive would assure the successful completion of this project. Therefore we think that it would be appropriate to establish in statute this method to manage dockets with the following language. "The commission shall establish a Management Information System, accessible by the general public through the Internet, for the purpose of tracking, scheduling and managing all dockets within the commission."] Representative Murkowski referred to Mr. Yould's and Mr. Rowe's suggested language for establishment of the management information system. She noted this was as opposed to encouraging the APUC to do this. Number 0423 CHAIRMAN ROKEBERG indicated the use of "shall" would result in a fiscal note associated with the legislation. The chairman informed the committee that the commission is already on the way, but one of the issues is this availability on the "Net" [Internet] and that is his reason. Chairman Rokeberg indicated the drafter could rebuild Amendment 2 by amendment, further indicating that the "encourages" language rather than the "shall" language would allow it to be viewed as a friendly amendment to the amendment. REPRESENTATIVE MURKOWSKI offered, "The legislature encourages the PUC [public utilities commission] to continue to develop its management information system, making the system accessible by the general public through the Internet for the purposes of tracking, scheduling and managing all dockets within the commission." CHAIRMAN ROKEBERG mentioned Mr. Yould's and Mr. Rowe's joint letter. He requested that Representative Murkowski restate her language for staff. REPRESENTATIVE MURKOWSKI restated the amendment to Amendment 2: "The legislature encourages the PUC [public utilities commission] to continue to develop its management information system to make the system accessible by the general public through the Internet for the purpose of tracking, scheduling and managing all dockets within the commission." CHAIRMAN ROKEBERG confirmed everyone had that. He asked if there were any objections to the amendment to the amendment. There being none, the amendment to Amendment 2 was adopted. Amendment 2 as amended read: Page 1, line 5, following ";": Insert "relating to a management information system;" Page 4, following line 1: Insert a new bill section to read: "* Sec. 9. MANAGEMENT INFORMATION SYSTEM. The legislature encourages the PUC to continue to develop its management information system to make the system accessible by the general public through the Internet for the purpose of tracking, scheduling and managing all dockets within the commission." Renumber the following bill sections accordingly. CHAIRMAN ROKEBERG asked if there were any objections to the amendment as amended. There being be none, Amendment 2 [as amended] was adopted. Number 0577 CHAIRMAN ROKEBERG made a motion to adopt Amendment 3. Amendment 3, labeled 1-LS0764\H.3, Cramer, 4/21/99, read: Page 1, line 5, following ";": Insert "relating to provisions for the resolution of consumer complaints;" Page 3, following line 19: Insert a new bill section to read: "* Sec. 7. AS 42.05 is amended by adding a new section to read: Sec. 42.05.165. Consumer complaints. The commission shall by regulation provide for (1) the expedited hearing and resolution of consumer complaints; and (2) penalties against a party to a complaint who causes unjustified delays in a consumer complaint proceeding." Renumber the following bill sections accordingly. REPRESENTATIVE BRICE objected for discussion. CHAIRMAN ROKEBERG indicated he thinks the amendment's purpose is to impress upon the commission the need to address those consumer complaints. The chairman commented a guideline had not been stipulated; one of the amendments did have the prevailing party winning, but it was felt that was inappropriate also, because it is usually a consumer against some kind of service provider. The APUC is the intermediary hearing officer. However, the chairman expressed that it is the intention to send a very strong message here that the commission draft regulation to take this issue up to make sure it can expedite further, which reflects the (indisc.) report. The commission is given a lot of flexibility here, but, he commented, "It's a statutory kick in the rear end here to do it." Number 0653 REPRESENTATIVE BRICE asked if there is a backlog of consumer complaints; he wondered if there is a concern about complaints, if complaints do exist, not being dealt with in a timely manner. CHAIRMAN ROKEBERG quoted a portion of the "Message from the Chairman" of the APUC's 1998 annual report, "The consumer protection division of the Commission is one of our busiest and most important. Our consumer specialists report 706 consumer complaints, a 23 percent increase over the previous year. As one of the few consumer response sections in state government, we feel it is essential to have more resources in this area [Sam Cotten, APUC Chairman]." Chairman Rokeberg noted the budget does provide nine more positions this year at APUC. REPRESENTATIVE MURKOWSKI referred to Mr. Yould's and Mr. Rowe's letter. From under the heading "Consumer Complaints," she quoted, "We are not aware of consumer complaints that languish. Summaries of consumer complaints are presented monthly at a public meeting and upon occasion a particular complaint is reviewed. We believe staff resolves most consumer complaints without need for referral to the commissioners." Representative Murkowski said she had made a notation on this amendment that Mr. Rowe had said that this particular amendment was moot; however, she does not remember where that came from. Representative Murkowski guesses she thinks it does not hurt to go ahead and put this in the statute so that it is known that resolution of the consumer complaints will be provided for by regulation. She indicated that although there is no current backlog of complaints, one could be anticipated, which justifies the amendment. Number 0772 REPRESENTATIVE BRICE added he believes that all that is really being said is that the commission will establish for expedited hearings when necessary. CHAIRMAN ROKEBERG noted it is a public policy statement; the legislature wants the commission to take up expedite the resolution of these hearings. REPRESENTATIVE BRICE agreed; it would allow for areas where there is a particular topic of high concern which needs to be fast-tracked above and beyond the regular process. CHAIRMAN ROKEBERG said that, on the other hand, it could be argued on the other hand that it may be superfluous. REPRESENTATIVE HALCRO indicated his agreement with the amendment He indicated that even the NRRI [National Regulatory Research Institute] report speaks about how commissioners from around the United States have agreed that in the near future much of the work public utility commissions do will be directed toward protecting consumers and (indisc.) markets and educating them [this appeared to be quoted from the NRRI report]. Therefore, Representative Halcro thinks the amendment appropriate. REPRESENTATIVE HARRIS questioned, then, if penalties would be set by the commission. CHAIRMAN ROKEBERG answered in the affirmative; the penalties would be set via the regulations. The chairman added, "And this is against the caveat from Mr. Baldwin put on earlier, that it would have to be tested to make sure. ... I'd consider them sanctions (indisc.) hopefully the Department of Law will give us some further recommendations on Wednesday [April 28] after (indisc.) chance to review this." The chairman asked if there were objections maintained to Amendment 3. There being no further objection, Amendment 3 was adopted. Number 0901 CHAIRMAN ROKEBERG made a motion to adopt Amendment 4, noting there is an amendment [in printed form] to this amendment. Amendment 4, labeled 1-LS0764\H.4, Cramer, 4/23/99, read: Page 2, line 13, following "(a)": Insert "Members shall be qualified as follows: (1) three members shall be at least one of the following: (A) a graduate of an accredited school of law; (B) a graduate of an accredited university with a major in engineering; or (C) a graduate of an accredited university with a major in finance, accounting, or business administration; and (2) two members shall be consumers. (b)" Reletter the following subsection accordingly. REPRESENTATIVE HARRIS objected for purposes of discussion. CHAIRMAN ROKEBERG moved the amendment to Amendment 4. The printed amendment to Amendment 4 offered by Representative Rokeberg, labeled "AMENDMENT to Amendment h.4," read: Page 1, Line 8 AFTER: "accounting," INSERT: "economics, public policy" CHAIRMAN ROKEBERG asked if there were any objections to the amendment to the amendment to the amendment. REPRESENTATIVE BRICE objected for purposes of discussion. CHAIRMAN ROKEBERG explained that the amendment to amendment is to add the academic studies of economics and public policy. The chairman commented he wished to amend his amendment to the amendment and say "public administration". He indicated that is the formal term. There was some committee discussion regarding Willamette University, Chairman Rokeberg's and Representative Halcro's alma mater, and the university mascot. Representative Murkowski also expressed approval of Willamette University as well. Number 0983 REPRESENTATIVE CISSNA wondered if the addition of "or a degree in a related field of study" to the amendment would be considered. She suspects there are degrees from different universities which may have similar titles, but would perhaps be excluded if there are specific degree name requirements. CHAIRMAN ROKEBERG responded that the existing statute has specifically stipulated seats for law, accounting and engineering. Significant testimony in the special committee was that this hampers the ability to find good quality people. The purpose of the amendment before the committee, in total, is to at least "raise the bar" so that there are at least some requirements or so forth. The chairman expressed his concerns regarding set requirements, noting he is actually lukewarm on the entire amendment. Chairman Rokeberg indicated CSHB 183(URS) basically reads "five public members." He questioned whether the committee wanted to come up with "weasel words" like "that have demonstrated competence and professionalism in other fields" rather than being specific as to fields. In other words, trying to raise the bar from just a public member to demonstrated competency. The chairman said would be happy to have the committee's input on this. REPRESENTATIVE BRICE indicated some agreement. Number 1118 CHAIRMAN ROKEBERG indicated the amendment in total narrowed it down but it might perhaps be too narrow. The chairman noted on the other hand, the possibility of simply having a public member, adding, "So if anybody can come up with some good weasel words to general competency ..." Chairman Rokeberg questioned the feelings of the committee. REPRESENTATIVE BRICE indicated he thinks he is agreeing with the chairman. It would be okay to sort of establish some standards, but indicated he is not sure if they want to establish specific standards. Representative Brice commented that he has been involved in enough floor fights and confirmation fights on the vagaries involved with what requirements are in statute and how people fit that. He noted his opinion is somewhat that it is interesting concept but he doesn't know whether or not they will get there from here. CHAIRMAN ROKEBERG indicated the testimony in the special committee regarding qualifications was that the legislature still reviews and confirms the commissioners. The chairman referred to the Real Estate Commission and the confirmation hearings of the Governor's appointees to that body which had taken place at the beginning of the meeting. The chairman indicated that if those appointees had not been known to him, the committee would have thoroughly grilled them because those appointees make quasi-judicial decisions. He added, "And those people that serve on the APUC and some of these other - and the Alaska Oil and Gas Conservation Commission and the 'Royalty (ph)' Commission [Alaska Royalty Oil and Gas Development Advisory Board] have to make sure that they're competent to perform that." There are only so many positions that are appointments that are not run concurrently with the governor. There are those commissions that have appointments that survive the governorships and have special quasi-judicial powers. Amongst these is the APUC. Number 1277 REPRESENTATIVE MURKOWSKI admitted some confusion and wondered if wondered if the intent was that at least three of the members shall be one lawyer, one engineer and one (indisc.). CHAIRMAN ROKEBERG noted that is not the intention. REPRESENTATIVE MURKOWSKI indicated, then, the intention of the amendment is that there is a list and that three are chosen from that list and plus the two consumer members; therefore, more than one person could be represented from an area on that list. CHAIRMAN ROKEBERG agreed that was the intention, but he is backing off even from the amendment. REPRESENTATIVE MURKOWSKI noted, if she may speak to the professional qualifications, she has not spent much time in front of the APUC herself, but other members of the [law] firm she has been involved with in the past have. She stated she has learned that it is helpful to have someone on the commission who has, especially in the engineering field, some understanding of engineering. Representative Murkowski indicated the same thing probably applies with respect to having training in the field of law, and financial and public administration fields. She is concerned that people who do not have their own area of expertise have to rely more on their staff. Representative Murkowski commented, "And their staff is going to be the good staff and they're going to tell you what it is from their perspective, but every now and again it's wise to question what your staff is saying, and you can't do that if you don't have a level of expertise in certain areas." She also indicated the possibility of a commissioner consulting another commissioner who has that expertise regarding staff recommendations; she thinks the professional expertise is a helpful thing to have. Number 1427 REPRESENTATIVE CISSNA offered another possible change to the amendment. She suggested, "a graduate of an accredited university and proven professional experience with demonstrated - either specific skills required in service as a commissioner or just skills required in service as a commissioner", might work because so many times people's experience is greater than their degree itself. She feels that things other than the specific skills mentioned here are more handy to a group that is trying to solve problems. CHAIRMAN ROKEBERG agreed, but said, on the other hand, it is very general. The chairman also said he does not like the inclusion in the original amendment that two of the members shall be consumers and would rather just make them public members; there is no qualification whatsoever since anyone can be a consumer. Chairman Rokeberg commented he did not think that was appropriate; he feels even those people who are ostensibly supposed to be representing consumers in this area need to have the intellectual ability to take up the task. Therefore, that speaks more to their point of view than their intelligence or education - not to say that by implication that consumers are any less educated than any other professional. The chairman indicated it was the construction that troubled him. Number 1526 REPRESENTATIVE BRICE questioned how this would technically work. He asked what would happen with the sitting commissioners: Would they have to have their backgrounds reviewed and would the commission have to be restructured around this formula on the effective date? REPRESENTATIVE MURKOWSKI stated that the existing statutes already state that there shall be one lawyer, one engineer and one accountant. REPRESENTATIVE BRICE commented that he was thinking backwards, indicating he had been somewhat confused. REPRESENTATIVE HALCRO asked, "If this is already required then why are ...?" REPRESENTATIVE MURKOWSKI clarified that what is required is that the commission have one lawyer, one engineer and one accountant. The amendment would allow for three members to be chosen from all these different professions. Therefore, it would be possible to have two public administrators and one engineer, instead of one from each. REPRESENTATIVE MURKOWSKI and REPRESENTATIVE BRICE both agreed the situation would be okay if the amendment was adopted. REPRESENTATIVE MURKOWSKI commented there is more flexibility with this. REPRESENTATIVE CISSNA agrees that there is more flexibility, but she suggests opening it up just a tiny bit wider because there are lots of resources out there. Number 1616 REPRESENTATIVE HARRIS asked if the amendment to the amendment had been approved yet. CHAIRMAN ROKEBERG answered in the negative. He commented the committee was having somewhat of an informal work session. The chairman noted he had been thinking about something a little more generic, "that the governor should consider the background, education and professional competency when appointing the public members", because there are five public members in the current legislation [no required qualifications for any APUC commissioner]. This language would require that all five of the appointees would have to have a good background, education and professional competency before being appointed. REPRESENTATIVE MURKOWSKI questioned that wouldn't it be assumed the governor is checking that in the first place. CHAIRMAN ROKEBERG indicated it might be redundant. REPRESENTATIVE MURKOWSKI said she thought the chairman was applying this to the two public members. She likes that idea because it gives the public members some qualification. REPRESENTATIVE HALCRO said the education and professional background of the first three public appointees has already been mandated. CHAIRMAN ROKEBERG said that the bill could also be left alone. The legislation currently says five public members, but does not define them. The chairman indicated this was the special committee's decision after this same discussion. He clarified that there are the qualifications in existing statute for three of the seats. REPRESENTATIVE MURKOWSKI stated that she still likes the professional qualifications. She reiterated that she likes having a pool of professional qualifications to choose from for the first three members and then having two public members. CHAIRMAN ROKEBERG asked if ARECA or ATA had any opinions on Amendment 4. ERIC YOULD, Executive Director, Alaska Rural Electric Cooperative Association, Incorporated, indicated he thinks ARECA has already testified on this. CHAIRMAN ROKEBERG asked if Mr. Wilcox to comment as the representative of the bill sponsor. Number 1761 WALT WILCOX, Legislative Assistant to Representative Bill Hudson, Alaska State Legislature, came forward as the aide the to House Special Committee on Utility Restructuring, the bill sponsor. Mr. Wilcox explained that the special committee had had lengthy discussion on this matter. He stated, "As it turns out, the original reason for having a lawyer, an engineer and an accountant, was when the commission was first formed it was a very small commission with very little staff, if any. So, they had to perform their own work. They had to be their own lawyer, their own engineer, their own accountant. Subsequent to that, I think we've got nearly 50 employees that take that burden off of the commissioners. So, from that perspective the Utility Restructuring Committee decided that five at large members were the best way to go for the simple reason that you had a larger pool to draw from, keeping in mind that the checks and balances are there with the governor appointing and the legislature confirming the appointment." CHAIRMAN ROKEBERG withdrew Amendment 4. Number 1810 CHAIRMAN ROKEBERG made a motion to adopt Amendment 5. The chairman indicated the amendment's intention is to help expedite the matters in the dockets before the commission. It sets a deadline target, but does allow the commission the flexibility to extend if need be. He said, "It sends a big message and huge shot of a cannon across the bow." Amendment 5, labeled 1-LS0764\H.5, Cramer, 4/23/99, read: Page 1, line 4, following ";": Insert "relating to hearings held by the Alaska Public Utilities Commission;" Page 3, following line 19: Insert a new bill section to read: "* Sec. 7. AS 42.05.141 is amended by adding a new subsection to read: (d) On the filing of a petition, application, or complaint concerning a matter within the jurisdiction of the commission under this chapter, the chair of the commission shall promptly fix a date for hearing. The hearing shall be held without undue delay. The hearing may not be scheduled to begin later than five months after the petition, application, or complaint was filed unless the commission approves an extension of time for good cause. After the conclusion of the hearing, the commission shall enter its order within 30 days." Renumber the following bill sections accordingly. Page 4, following line 5: Insert a new bill section to read: "* Sec. 11. The provisions of AS 42.05.141(d), enacted by sec. 7 of this Act, apply to petitions, applications, and complaints first filed with the commission on or after the effective date of this Act." Renumber the following bill section accordingly. REPRESENTATIVE MURKOWSKI questioned, then, if there are deadlines of five months and orders being entered within 30 days as stated in the amendment, what happens if they fail to comply. She asked what the enforcement is. CHAIRMAN ROKEBERG commented the legislature cuts off their funding. REPRESENTATIVE MURKOWSKI referred to previous testimony, noting she agrees that something needs to be done to eliminate the delays and the backlog. However, recognizing the complexities of some of these cases, she is concerned with a deadline. Representative Murkowski noted it is quite possible that both parties would request continuances and this amendment would not allow a continuance. These tariff rate cases go on for years, and it is not necessarily because the commissioners are not acting expediently, it is because it is incredibly complex and the parties need additional time. Therefore, she thinks there needs to be something which says that expediency is important and should be the number one priority, but she does not think a message should be sent conveying that the quality be sacrificed for the expediency. Representative Murkowski indicated there needs to be a reasonableness provision. CHAIRMAN ROKEBERG agreed. However, his rejoinder would be that there is the ability to extend after the period. There is no extension provision for the order being issued within 30 days after the hearing. REPRESENTATIVE HALCRO noted he agrees with Representative Murkowski. He believes that it was brought up at the last hearing that a quicker response would be accepted even though it may not be well-thought out. Representative Halcro referred to the NRRI report, commenting it does say that. He apparently quoted, "Most who commented on the training that had been provided for writing orders regarded the training exercise as a failure." Therefore, timeliness is the key issue, but if "you slap this 30 days on them, and if they have a more complex case that maybe takes a little bit more homework to do, or they don't get their training in line in time, I think ... you have some problems here." CHAIRMAN ROKEBERG asked if anyone in the audience cared to comment. Number 1973 REED STOOPS, Lobbyist for General Communications, Incorporated (GCI), came forward. Mr. Stoops commented that he has also sat through all the hearings on this subject. Not having dockets completed in a timely manner is probably the most common complaint he has heard, and certainly his client has had ample experience with delays of years before decisions. Mr. Stoops agrees with Chairman Rokeberg that the intent is to set at least a target date for a deadline for a docket, which would be adequate in most cases. Mr. Stoops noted the amendment clearly says the commission has the opportunity to extend that decision date for good cause; presumably the commission would simply enter a letter or make an announcement that it has extended, and it would be required to give a reason for the extension. He observed that it is not really written very tightly and GCI's preference would probably be to make it tighter, but the language would at least give incentive to the commission. He does not believe that anyone from the previous hearing disagreed with the concept of trying to find some reasonable way to get a timely decision without being so strict that the commission is limited in truly complex cases. He added he would assume that is good cause if both parties agree that there ought to be an extension. REPRESENTATIVE MURKOWSKI said that she does not disagree with Mr. Stoops' comments regarding obtaining an extension for good cause. However, she is looking more at the timeliness of the commission entering the order. She reads that as "after the conclusion of the hearing, the commission shall enter its order within 30 days." Therefore, the commission has a 30-day window. Recognizing that there can be rate hearings lasting for years and banker boxes of pleadings and dockets, et cetera, she does not know that it is reasonable to really "kick out an order within 30 days." She believes it is probably a good idea to put a time frame on it, but she personally does not feel that 30 days is reasonable for all dockets. Number 2087 MR. STOOPS suggested that perhaps the good cause extension could be added to the 30 days as well. He thinks it is sort of a rule-of-thumb type deadline which would cover most dockets because most of them are not that complicated. CHAIRMAN ROKEBERG indicated trying to categorize the type of dockets and set up a time frame was looked at. The chairman questioned if anyone else cared to comment on this. Number 2113 MR. YOULD noted he had not planned to testify, but thinks it is a good amendment. He agrees that it may not be as tightly written as ARECA would like to see it. Mr. Yould suggested amending the language that begins on line 8 of the printed amendment, "The hearing shall be held without undue delay", by inserting, "however" following "delay". This would ties the two sentences together and indicates that there is a desire to do it as soon as possible, but certainly not later than five months. Mr. Yould commented that when ARECA's general managers met with the APUC commissioners on April 15, 1999, they asked the commissioners the same question: Would you all like to see statutory dates. He noted, "I guess I'm kind of speaking on their behalf and I hope I'm not getting in trouble with this: They kind of indicated that when their feet are held to the fire, that ... they will get the dockets out, and they - the body language was not negative I guess is the best way to put it." [The amended language Mr. Yould suggested would read: "The hearing shall be held without undue delay; however, the hearing may not be scheduled to begin later than five months after the petition, application, or complaint was filed unless the commission approves an extension of time for good cause."] REPRESENTATIVE HALCRO asked if Mr. Yould interprets the amendment to read that the hearing may be extended for time: You can extend the period for the hearing for good cause. He reads it that the order has to be given within 30 days, as did Representative Murkowski. MR. YOULD answered yes. However, he thinks the commission should have that flexibility for good cause but the intent is there. REPRESENTATIVE BRICE said he would finish the chairman's thought that they duplicate "unless the commission approves an extension of the time for good cause after 30 days". Number 2204 CHAIRMAN ROKEBERG understood Representative Brice's comment as an amendment to Amendment 5, after "30 days" on line 12 [of the printed amendment] to add "unless the commission approves an extension of time for good cause". [The sentence as amended would read: "After conclusion of the hearing, the commission shall enter its order within 30 days unless the commission approves an extension of time for good cause."] The chairman asked if there were any objections to the amendment to the amendment. There being none, the amendment to Amendment 5 was adopted. REPRESENTATIVE HARRIS noted he did not have any major opposition but it seems like the amendment to the amendment just adopted "takes all the teeth really out of what you're trying to do with this amendment, if you're trying to force some decision to be made ... if the commission's will is to stall ... is to have lots more time, they're going to have to lots more time anyway because they'll just keep adding on to their extension here." CHAIRMAN ROKEBERG suggested another way to do it would to say either 60 days or 45 days. REPRESENTATIVE HARRIS replied that he would rather do it that way himself. CHAIRMAN ROKEBERG asked Mr. Yould, Mr. Stoops and Mr. Baldwin what their preference would be. Number 2270 MR. BALDWIN concurred with Representative Murkowski's comments. He does not think this works; he witnessed the legislature attempt to put a six-month time period on the court system for getting opinions out, that did not work. Mr. Baldwin thinks there are many ways for boards to wiggle out of these things. He agrees with Representative Murkowski and does not think it should be done at all. MR. STOOPS indicated a date certain would be preferable to the current amendment language. CHAIRMAN ROKEBERG asked whether 45 or 60 would be preferable. The chairman asked if Mr. Yould had any preference. MR. YOULD commented the present system is not working at all. Anything better than that would be preferable. CHAIRMAN ROKEBERG questioned, however, which is more realistic 30, 45 or 60 days. MR. YOULD said to use 30 or 45 days. If it doesn't work, it doesn't work legally, but the point is it will work most of the time. In other words, the intent is there; the commission will try to attain it, but it may not always make it. CHAIRMAN ROKEBERG questioned if Mr. Cotten or Mr. Lohr [Robert, Lohr, Executive Director, APUC] were online. SAM COTTEN, Chairman and Commissioner, Alaska Public Utilities Commission, Department of Commerce and Economic Development responded via teleconference from Anchorage. He confirmed for Chairman Rokeberg that he had copies of the amendments. CHAIRMAN ROKEBERG asked Mr. Cotten for his comments on Amendment 5. MR. COTTEN said he thinks Mr. Yould was probably referring to his (Mr. Cotten's) comments in the reflection of the meeting the other day [April 15, ARECA/APUC]. Mr. Cotten related he harkened back to the lack of a limit on the number of days the legislature could be in session when he was first a legislator. He was convinced it was a bad idea when it was proposed to limit the legislative session to 120 days. After it came into effect, he was really happy about it. He thinks they could make it work well there as well, although he is not sure what the appropriate time period is. Mr. Cotten noted he does not think it is a bad thing to say that an order should be issued within a certain time period. He indicated that there are instances when it is difficult to get a consensus among the commission members, but a time limit might also help in that regard. Therefore, speaking for himself, not the commission, he thinks some sort of deadlines would have a positive effect on the operation of the commission as far as timeliness is concerned. It might be difficult to craft the proper language to achieve that, but he favors it as a concept. Number 2378 REPRESENTATIVE BRICE understands that GCI has a very difficult docket in front of the commission that is taking a great deal of time. He questioned if the commission could have addressed that docket under this time line. MR. COTTEN responded he is not sure which one [docket] Representative Brice is referring to. CHAIRMAN ROKEBERG noted, then, there are multiple [dockets]. REPRESENTATIVE CISSNA questioned if the "unless good cause" at the end would give enough latitude. MR. COTTEN replied he thinks that would work pretty well on the first part. If the parties agreed to try to work it out amongst themselves and that pushed it past the deadline, that would probably be good cause. Mr. Cotten emphasized another point he wanted to make is that not everything goes to hearing. Often an application comes in and is approved as a routine matter; therefore, it is not necessary to assign hearing date for each case. This might be a technical consideration. He indicated allowing the "for good cause" on the chosen amount of days - whether 30, 45, or another number - would provide the commission an opportunity for an extension, if commission is required to explain why. He further indicated the biggest problems have been failure by the commission to reach a consensus, or that someone insists on writing 30 or 40 pages of commentary before even reaching the section in the order which announces the decision. Mr. Cotten added, "And, again, I think that's oftentimes unnecessary." [TESTIMONY INTERRUPTED BY AUTOMATIC TAPE CHANGE] TAPE 99-47, SIDE B Number 0001 REPRESENTATIVE HALCRO stated, "...60, 45's a compromise." CHAIRMAN ROKEBERG suggested 5 non-seriously, noting that came from the industry. REPRESENTATIVE BRICE indicated 60 days would not be long enough. REPRESENTATIVE MURKOWSKI indicated she thought it wouldn't be long enough in certain instances. CHAIRMAN ROKEBERG agreed with 60 days. REPRESENTATIVE HARRIS indicated he agreed with 60 days. REPRESENTATIVE CISSNA questioned if "unless good cause" was being added in. REPRESENTATIVE MURKOWSKI commented, "'Unless good cause', you delete that..." REPRESENTATIVE HARRIS stated 60 days without any exemption. CHAIRMAN ROKEBERG questioned if Representative Harris wanted to amend his amendment. REPRESENTATIVE HARRIS responded it was not his amendment. CHAIRMAN ROKEBERG indicated it had been assigned to him. Number 0031 REPRESENTATIVE HARRIS made a motion to adopt a conceptual amendment "that deletes the section that was just put behind 30 days and changes 30 days to 60." CHAIRMAN ROKEBERG indicated the committee would discuss this at the next hearing on the legislation [Wednesday, April 28]. The chairman asked if there was any objection to the amendment [to the amendment]. REPRESENTATIVE BRICE objected, noting that he had just made the amendment [to the amendment]. Representative Brice explained he made the amendment [to the amendment] because he thinks the "pressure relief valve" will be needed. CHAIRMAN ROKEBERG commented that is a good point, suggesting that the committee remain with the 60 days. The committee can then see what happens between now and Wednesday [April 28]. The chairman indicated the issue could be taken up again at that time. REPRESENTATIVE BRICE said, then, with that assurance, he withdraws his objection. CHAIRMAN ROKEBERG asked if there are any objections to the [conceptual] amendment to the amendment. The chairman gaveled down, indicating the amendment to the amendment had been adopted. Chairman Rokeberg stated there is a technical amendment he would like to make as well. Number 0066 REPRESENTATIVE MURKOWSKI noted she had no objection. However, because the committee is still discussing this and whether 60 days is enough, Representative Murkowski commented she had brought up the question of enforcement and has not seen any amendments to that effect. Perhaps this is also something the committee needs before it at the next hearing. She said, "How do you hold the feet to the fire?" CHAIRMAN ROKEBERG joked that the chairman [of the APUC] has to dive off the Captain Cook statute. REPRESENTATIVE HALCRO asked the chairman's brief indulgence and informed the committee his staff had proposed a scenario to encourage a quick decision-making process. Number 0094 JONATHON LACK, Legislative Assistant to Representative Andrew Halcro, Alaska State Legislature, came forward. Mr. Lack indicated he had just pointed out to Representative Halcro that the supreme court has an order in place for superior and district court judges, providing a maximum of six months from the time a motion is completed until the time an order is issued. If a judge has not issued an order at the end of the six months, the judge has to self-report to the supreme court and is not paid until the order is issued in that matter. CHAIRMAN ROKEBERG indicated the committee would take this under advisement. He noted the amendment to the amendment had been adopted. He would like to propose the third ["second"] amendment to the amendment. It would be a technical conceptual amendment to Amendment 5 to pick up on what Mr. Cotten had said. Chairman Rokeberg noted, "it's when a hearing is appropriate here, to change the wording here." Mr. Cotten's testimony was that a hearing was not appropriate at all times; therefore, it is necessary to conceptually amend this amendment "to something of the effect that on a hearing -- when a hearing is appropriate." Chairman Rokeberg confirmed the committee was in understanding and he commented that the word "hearing" is used several times. REPRESENTATIVE BRICE noted the language, "when appropriate". CHAIRMAN ROKEBERG commented that it is a conceptual amendment, indicating the drafter could determine the proper phrasing. The chairman asked if there was any further discussion on Amendment 5. He noted they have it on the 60 days and with the proviso that the committee will be taking this up again, hoping some feedback is received from the commission, industry, and all affected parties. The chairman reiterated his intention is to put this into a CS, "and make sure they know we're serious and then they'll hear back." He asked if there were any further comments and stated the objection is removed from Amendment 5. Chairman Rokeberg questioned if there were any objections to Amendment 5 as amended. There being none, Amendment 5 as amended was adopted. [Note: the chairman did not formally ask the committee if there were any objections to the third ["second"] amendment to Amendment 5, the technical conceptual amendment to the amendment, but no objections were voiced by the committee]. Number 0181 CHAIRMAN ROKEBERG made a motion to adopt Amendment 6. Amendment 6, labeled 1-LS0764\H.6, Cramer, 4/23/99, read: Page 1, line 4, following ";": Insert "relating to procedural motions of the Alaska Public Utilities Commission;" Page 3, following line 19: Insert a new bill section to read: "* Sec. 7. AS 42.05.151(b) is amended to read: (b) The commission shall adopt regulations governing practice and procedure, consistent with due process of law, including the conduct of formal and informal investigations, prehearing [PRE-HEARING] conferences, hearings, and proceedings, and the handling of procedural motions by a single commissioner. The commission, or an assigned commissioner, shall enter an order on procedural motions within 10 days after the close of the applicable briefing period. Technical rules of evidence need not apply to investigations, prehearing [PRE-HEARING] conferences, hearings, and proceedings before the commission. The commission shall provide for representation by out-of-state attorneys substantially in accordance with Rule 81, Alaska Rules of Civil Procedure." Renumber the following bill sections accordingly. CHAIRMAN ROKEBERG noted there had been some testimony from Mr. Schroer [Don Schroer, lobbyist for GCI and former APUC chairman] at the previous hearing [April 23] recommending an amendment to the amendment to include mediation and arbitration. Chairman Rokeberg referred to line 8 of the written amendment, "investigations, prehearing [PRE-HEARING] conferences, hearings, and proceedings,", noting Mr. Schroer had recommended adding "mediation and arbitration" after "hearings". He asked Mr. Cotten if the commission currently conducts mediation or arbitration. MR. COTTEN answered in the affirmative. He noted that in some "telecom" cases as a result of the "Telecom Act" [federal Telecommunications Act of 1996] there is a provision to do that under certain interconnection agreements between competitors and the incumbent local exchange carriers. CHAIRMAN ROKEBERG noted the added language should be "arbitration, mediation"; therefore, it would be appropriate to include that. Number 0253 MR. COTTEN agreed he thinks it would be appropriate; he emphasized he is speaking for himself - the commission has not considered these amendments. CHAIRMAN ROKEBERG noted, then, he would move Amendment 6 and if he hears objections for purposes of discussion, he will then move the amendment to the amendment, after the word "hearing" on line 8 [written amendment copy] to add "mediation, arbitration, and" in conceptual form to ensure the grammar is correct. The chairman asked if there is any objection. REPRESENTATIVE BRICE questioned if mediation and arbitration are applicable to the rules of evidence, indicating he was referring to the lower amendment language, "Technical rules of evidence need not apply to investigations, prehearing [PRE-HEARING] conference, hearings, and proceedings before the commission.", appearing on lines 11 through 13 of the printed amendment copy. REPRESENTATIVE MURKOWSKI indicated this was true, at least when the court rules. Number 0293 CHAIRMAN ROKEBERG expanded the amendment to the amendment to include adding the new language after "hearings" on line 13. He asked if there was any objection to the amendment to the amendment. There being none, the [conceptual] amendment to Amendment 6 was adopted. Subsection (b) of Amendment 6 as conceptually amended read: (b) The commission shall adopt regulations governing practice and procedure, consistent with due process of law, including the conduct of formal and informal investigations, prehearing [PRE-HEARING] conferences, hearings, mediation, arbitration, and proceedings, and the handling of procedural motions by a single commissioner. The commission, or an assigned commissioner, shall enter an order on procedural motions within 10 days after the close of the applicable briefing period. Technical rules of evidence need not apply to investigations, prehearing [PRE-HEARING] conferences, hearings, mediation, arbitration, and proceedings before the commission. The commission shall provide for representation by out-of-state attorneys substantially in accordance with Rule 81, Alaska Rules of Civil Procedure. CHAIRMAN ROKEBERG noted the amendment language on lines 9 through 11 of the printed amendment, "The commission, or an assigned commissioner, shall enter an order on procedural motions within 10 days after the close of the applicable briefing period.". He asked for Mr. Cotten's input on this amendment. MR. COTTEN commented he is not sure of the definition for "procedural motions", but he does not think it is too much to ask for a ruling within 10 days on simple procedural motions as he understands a procedural motion. His initial reaction is that it does not look like it would cause any problems. CHAIRMAN ROKEBERG asked for Mr. Baldwin's assistance regarding the whether "procedural motions" are defined, as far as a commissioner or a hearing officer before the commission. Number 0367 MR. BALDWIN answered that procedural motions are generally motions for how to conduct the docket. They are not dispositive motions relating to the merits of the case. CHAIRMAN ROKEBERG possibly questioned whether the civil procedure rules the commission works under are defined in court rules. MR. BALDWIN responded that they are generally defined in regulations of the commission; the commission generally sets its own procedure. Mr. Baldwin asked for confirmation from Mr. Cotten that that was correct. MR. COTTEN indicated he and Mr. Lohr had just been discussing that. Mr. Cotten said he certainly does not disagree with Mr. Baldwin: A non-dispositive motion would be considered procedural. Mr. Cotten said he just had not been sure if there is an actual definition for procedural motion, but he thinks most people operate with the assumption that it is a time extension or some other minor motion practice. CHAIRMAN ROKEBERG asked Mr. Cotten if there are any practical problems with Amendment 6. MR. COTTEN answered not that he has noticed "right off the bat here." CHAIRMAN ROKEBERG asked if there were any questions or comments from the committee members. The chairman asked if there were any objections to Amendment 6 [as amended]. There being none, Amendment 6 was adopted [as amended]. Number 0426 CHAIRMAN ROKEBERG made a motion to adopt Amendment 7. Amendment 7, labeled 1-LS0764\H.7, Cramer, 4/23/99: Page 1, line 4, following ";": Insert "permitting arbitrators to conduct formal hearings before the Alaska Public Utilities Commission;" Page 3, following line 19: Insert a new bill section to read: "* Sec. 7. AS 42.05.171 is amended to read: Sec. 42.05.171. Formal hearings. A formal hearing that the commission has power to hold may be held by or before three or more commissioners, a hearing officer, or an administrative law judge designated for the purpose by the commission. In appropriate cases, a formal hearing may be held before an arbitrator designated for the purpose by the commission. The testimony and evidence in a formal hearing may be taken by the commissioners, by the hearing officer, [OR] by the administrative law judge, or by the arbitrator to whom the hearing has been assigned. A commissioner who has not heard or read the testimony, including the argument, may not participate in making a decision of the commission. In determining the place of a hearing, the commission shall give preference to holding the hearing at a place most convenient for those interested in the subject of the hearing." Renumber the following bill sections accordingly. AN UNIDENTIFIED COMMITTEE MEMBER objected. CHAIRMAN ROKEBERG commented he didn't know if he liked arbitration. The chairman asked Mr. Cotten's opinion of Amendment 7 regarding arbitration, indicating Mr. Cotten had testified the commission is required to use arbitration under the Telecommunications Act of 1996. MR. COTTEN responded that the commission has a couple of choices there. Mr. Cotten noted the commission can act as the arbiter/arbitrator. Additionally, he described that in one case in an Anchorage where GCI and ATU [Anchorage Telephone Utility] entered into an inter-connection agreement, those two entities agreed upon an arbiter and agreed to pay for that person "to hammer out a lot of minor disputes." However, Mr. Cotten noted that is quite different than what this proposes as a formal hearing. The commission has not had any experience with a formal hearing in front of an arbiter although it does employ administrative law judges and, occasionally, hearing officers. He noted the commission is at least able to now use hearing officers. Therefore, this would be something new and he thinks the limited experience the commission has had so far has been successful; this would expand to it formal hearings and he is uncertain about that. CHAIRMAN ROKEBERG requested Mr. Stoops' comments and analysis of the intention. Number 0491 MR. STOOPS, representing GCI, stated he thinks the language is permissive, as in GCI's earlier proposed amendment. Noting the language beginning with "In appropriate cases,", Mr. Stoops indicated GCI's assumption is that this language adds a new method by which the commission might address certain cases but it is up to the commission to choose, not the parties themselves. Therefore, Mr. Stoops guesses the question should be whether it is objectionable to have this potential method available to the commission for future use. CHAIRMAN ROKEBERG expressed that he personally does not care for arbitration, adding that the provision here does not statutorily indicate whether it would be binding arbitration or not. REPRESENTATIVE BRICE commented it would not be binding. CHAIRMAN ROKEBERG indicated, then, he understands it would not be binding because of that. MR. STOOPS thought it would be up to the commission to make that determination. In the case cited by Mr. Cotten, it wasn't a formal hearing but the procedure for resolving disputes between GCI and ATU on local competition worked quite well. CHAIRMAN ROKEBERG asked if that was what GCI had in mind when this amendment was requested. MR. STOOPS answered in the affirmative, adding, "Although the way that this is drafted ... Chairman Cotten is correct that -- I mean they may not have technically called that a formal hearing, I think ... that was certainly one of the cases that we viewed favorably that ought to be expanded, and perhaps Chairman Cotten would have a different term of art." CHAIRMAN ROKEBERG indicated the language is being inserted into an existing heading, with regards to drafting, and perhaps that has something to do with it. The chairman questioned if GCI's intention was more informal arbitration, such as it had experienced [with ATU]. MR. STOOPS replied that GCI would accept either advisory or binding arbitration as alternative, because sometimes it is the fastest way to resolve certain issues. He emphasized that this is simply an option for the commission; it would not be required to do this. CHAIRMAN ROKEBERG commented, "Right. Well I would take informal as - as something..." MR. STOOPS interjected that if the chairman has a different terminology which would be appropriate, that would be fine. Number 0590 REPRESENTATIVE BRICE suggested the possible removal of "formal", and be silent on it. CHAIRMAN ROKEBERG noted that "formal" is used in the heading and also the other existing law, so he would be reluctant to change it there. The chairman questioned the definition of "formal" as opposed to "informal". REPRESENTATIVE BRICE thought a formal hearing would be a hearing where the decision is made, the final last step, as opposed to an informal hearing, or secondary or tertiary hearing. CHAIRMAN ROKEBERG questioned whether Mr. Cotten or Mr. Lohr had any further comment on that. MR. COTTEN noted he had been unsure that he had gotten the exact question; he asked if they had been speaking of the formal hearing here. CHAIRMAN ROKEBERG agreed, noting it is in that section of the existing statute. The chairman asked if this concept of arbitration needs to be removed and reinserted elsewhere. MR. COTTEN noted that, after hearing Mr. Stoops' comments, he (Mr. Cotten) thinks it appears to offer the commission another opportunity to do something besides hold the hearing itself. He understands that the current law allows the commission to assign that to a hearing officer who would then deliver a decision to the commission for approval or disapproval. This also applies to the administrative law judge, and he indicated that apparently the situation would also be the same with an arbiter. In that regard, Mr. Cotten indicated he does not think it would probably cause any problems. CHAIRMAN ROKEBERG stated that both parties would have to submit to the arbitration and apparently agree to the arbitrator. Therefore, it seems to him that this is a positive tool but both parties would have to agree to it. He asked Mr. Stoops if that would be the intention. Number 0678 MR. STOOPS agreed, noting the amendment is silent on whether it is binding or advisor [arbitration]. Since it is optional anyway, it would be up to the commission. CHAIRMAN ROKEBERG commented, then, the rules of the game would be established by the parties to it. This merely authorizes the commission to allow for arbitration. Chairman Rokeberg asked if that is correct. He questioned if everyone had an understanding of what they were doing here. He asked if there were any objections to the amendment. There being none, Amendment 7 was adopted. MR. COTTEN indicated hearing officers, administrative law judges, or possibly other public employees, act in an arbitration function for the state. Therefore, from the drafting of the amendment, he is not sure he understands the difference between hiring an arbitrator and hiring a hearing officer, and having each return with a decision. CHAIRMAN ROKEBERG responded it is his understanding an arbitrator has to be a member of the American Arbitration Association, and, therefore, may not be on the employment roles of the state. This would be a step toward privatization. The chairman indicated this may be a positive thing, as an alternative conflict resolution device that can expedite the commission's matters, because the commission does not have to take up the issue itself but it would be addressed under the auspices of the commission. Chairman Rokeberg asked Mr. Stoops if that is correct. MR. STOOPS agreed. CHAIRMAN ROKEBERG stated the committee has before it the last amendment of the evening, the corrected Amendment 8 by Representative Halcro. Number 0766 REPRESENTATIVE HALCRO made a motion to adopt Amendment 8. Amendment 8, an unlabeled printed amendment [the printed amendment was numbered lines 1-5, but written in continuous paragraph form] read: Page 1, line 8, following "(b) The" delete "governor shall designate one member of the commission as chair. The chair shall serve as chair for a term of four years, but may be appointed for successive terms." and insert "commission shall select one member of the commission to serve as chair for a term of two years. A commissioner may be elected to successive terms as chair of the commission." REPRESENTATIVE BRICE objected. REPRESENTATIVE HALCRO spoke to the amendment. He commented that this amendment came from someone very close to the APUC who feels that with all of the overhaul being done, this is one way to depoliticize the commission ["board"] a bit more; create a better working environment where commission members would select their chairman rather than having the governor appoint. Representative Halcro said he feels, in listening to her [unidentified] suggestion and then reviewing the bill, they go to great lengths in this legislation to provide the commissioners some increased powers. Representative Halcro indicated he thinks allowing the majority of the commissioners to elect their chair follows this. The chair would be appointed for a two-year period, with the commissioners then voting to either retain the current chair for an additional two years or electing a new one. REPRESENTATIVE BRICE spoke to his objection. He thinks they should just let the Governor do it. It is something the governors have been doing; Representative Brice noted it has not been a problem brought to his attention by any of the commissioners. He does not know where the amendment is coming; he has not heard any controversy or complaint. CHAIRMAN ROKEBERG noted there had been similar testimony in the special committee. He asked if Mr. Wilcox recalled that. Number 0856 MR. WILCOX said he had spoken with the chairman of the special committee [Representative Bill Hudson] on this particular matter. It was Representative Hudson's opinion that the special committee had reached no conclusion because the members really did not care whether it was two years or four years. CHAIRMAN ROKEBERG questioned, however, about the election of the [APUC] chair by the membership. MR. WILCOX believed there had been some discussion on that particular point and an amendment proposed by Representative Rokeberg that was deemed to be somewhat unconstitutional. Mr. Wilcox indicated there appeared to be some conflict with Article III, Section 26, of the Alaska State Constitution. He commented this issue had just been discussed with Mr. Baldwin, indicating they would need more time to address it. [Constitution of the State of Alaska, Article III, Section 26 reads: SECTION 26. BOARDS AND COMMISSIONS. When a board or commission is at the head of a principal department or a regulatory or quasi-judicial agency, its members shall be appointed by the governor, subject to confirmation by a majority of the members of the legislature in joint session, and may be removed as provided by law. They shall be citizens of the United States. The board or commission may appoint a principal executive officer when authorized by law, but the appointment shall be subject to the approval of the governor.] CHAIRMAN ROKEBERG invited Mr. Baldwin forward again. MR. BALDWIN commented he is pained because he does not know the answer to this. He referred to the constitutional language, "The board or commission may appoint a principal executive officer when authorized by law, but the appointment shall be subject to the approval of the governor." Mr. Baldwin said he thinks there is some concern about whether the reference to "principal executive officer" would cover a chairmanship. He reiterated he does not know the answer. Number 0926 CHAIRMAN ROKEBERG noted, then, they were skating on thin constitutional ice, without further analysis. He asked if that would be a fair assessment. MR. BALDWIN indicated he agreed and needed further time. MR. WILCOX requested that staff be given an opportunity to get a legal opinion from legislative counsel. REPRESENTATIVE HALCRO said he would appreciate and accept that recommendation. Number 0950 CHAIRMAN ROKEBERG indicated the amendment would be held in abeyance until a legal opinion could be received. He questioned who would take responsibility for the legal opinion. MR. WILCOX offered to do so, noting this question has arisen previously and he is probably the most familiar with it. CHAIRMAN ROKEBERG indicated a House Labor and Commerce Standing Committee substitute would be brought forward at the next meeting on April 28. [HB 183 WAS HELD]
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