Legislature(1999 - 2000)
03/16/1999 08:06 AM House STA
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HJR 18-CONST. AM: ADMINISTRATIVE HEARINGS CHAIR JAMES announced HJR 18, Proposing an amendment to the Constitution of the State of Alaska relating to an office of administrative hearings is before the committee. Number 0015 REPRESENTATIVE OGAN mentioned that the Administration repeatedly said that the administrative hearing law judges would thwart the ability of the Administration to set policy. He said that the policy is set by regulation and that administrative law judges will interpret that legislation very much like the Alaska Supreme Court interprets Alaska statutes. REPRESENTATIVE OGAN referred to the comment that HJR 18 also creates the fourth branch of government. He indicated that the fourth branch of government is the bureaucracy . Representative Ogan further stated that, "There's no separation of powers, the due process is cloudy at best, and I feel very strongly that this approach would at least create some fairness in due process to that fourth branch of government that the legislature has created through statute." REPRESENTATIVE OGAN offered Amendment 1 which reads: Page 1, line 1: Delete: "an amendment" Insert: "amendments" Page 1, following line 13: Insert a new section to read: "*Sec.2. Article XV, Constitution of the State of Alaska, is amended by adding a new section to read: Section 30. Application of Amendment Relating to Administrative Hearings. The 2000 amendment relating to administrative hearings made in Section 28 of Article III applies only to administrative hearing begun on or after July 1, 2002." Renumber the following section accordingly. Page 1, line 14: Delete: "amendment" Insert: "amendments" REPRESENTATIVE OGAN explained that Amendment 1 would extend the effective date two years after the constitutional amendment is passed which would give the Administration and the legislature time to implement the statutes and the program. Number 0080 CHAIR JAMES asked whether there was any objection to the amendment. There being none, Amendment 1 was adopted. REPRESENTATIVE KERTTULA said that Ms. Cook, [Director, Legal and Research Division, Legislative Affairs Agency] said she couldn't tell the committee what HJR 18 was going to do in terms of: was it going to include all hearings, including correctional hearings and all agencies. REPRESENTATIVE OGAN responded that the constitution is intended to be written simplistically so that it could be interpreted rather broadly. The intent of the amendment is to remove the power to hold in-house administrative hearings and set up an independent agency, which is very much like the judiciary oversees Alaska's statues, and that the administrative law judges would adjudicate regulations. REPRESENTATIVE KERTTULA said she believes that this is the "cart before the horse." She asked Representative Ogan if he intended to include the judicial council, if so there would be a separation of powers. She also asked Representative Ogan if he intended to include all correctional hearings and all "good-time" hearings. Number 0174 REPRESENTATIVE KERTTULA stressed that, "The problem with HJR 18 is that we will run into constitutional issues and that this is too broad as a start." She asked what the cost would be in the long run because she read that it cost Colorado and Maryland millions of dollars to set up something like this. REPRESENTATIVE OGAN responded that he believes the state will realize millions in savings. He said "We identified about $7 million a year in the fiscal notes on our bill last year that we spent for administrative adjudication process and it was a very difficult fiscal note to sort out and some of the agencies didn't respond." REPRESENTATIVE KERTTULA said she sincerely doesn't believe that that's the case, HJR 18 is creating another huge bureaucracy that has no sidebars on it. She further stated, "I don't think that the resolution says that you've got the administrative law judges deciding regulations and I think if you did you'd have another separation of powers issue. ... You're going to cost more money, you're going to create another bureaucracy." REPRESENTATIVE OGAN disagreed. CHAIR JAMES noted that Representative Cissna is present. Number 0242 TERESA WILLIAMS, Assistant Attorney General, Fair Business Practices Section, Civil Divisions, Department of Law, testified via teleconference from Anchorage. She said Representative Kerttula has raised some of the concerns that the Department of Law has seen on this bill [HJR 18]. Ms. Williams further stated that, "We've got a creation, by constitution, as was reported by Representative Ogan, to be broadly interpreted. Representative Ogan himself said that he identified a number of persons within the Administration who carry out adjudicative functions who are not hearing officers, these people are not attorneys, they're people who's career it is to adjudicate matters. If those functions are centralized in a central office, they could not be carried out by the 14 to 16 persons that Representative Ogan is visualizing, it would have to be a much larger office. In addition, that office would have to have its own experts in order to - in any way try to simulate the level of expertise that would be available in the agency where you're having a person with a lifetime of experience adjudicating matters which are within that area of expertise." CHAIR JAMES noted that she worked on the negotiated regulation making bill which the past last year. She stated that the legislature, by the Administrative Procedures Act, has given the authority to the Administration to provide for the Administrative Code which is law. Chair James also said that she has heard huge outcries from the Administration, however, they did not come forward with ideas and stood pat that they are doing a good job. CHAIR JAMES stated that she tried to create a central location for writing regulations by professional staff. She mentioned that the writers of the regulations hate it because it interferes with their other duties and that after the regulations have been reviewed by the Office of the Attorney General they do not come back as they were originally written. Chair James referred to a memorandum from Governor Knowles which listed five or six points on how he was going to streamline the regulation process. One point that was made was that they were to be written in plain English so that an ordinary person could understand it. She said that she hasn't noticed any difference. Number 0315 CHAIR JAMES stated that her biggest concern is that the people who write the regulation should not be the people who enforce the law, and that the people who enforce the law should not be the people who take the appeals. House Joint Resolution 18 is intended to fix that. CHAIR JAMES indicated that she also tried to get the cost of writing down. If the state had people that did nothing else but write regulations, and that they had all the tools they needed, they could also schedule regulation hearings through noticing. CHAIR JAMES mentioned that she hears complaints from the public regarding regulations. She reiterated that most of these folks have no money to go to court and that whatever they get out of the department is the end of the road for them. Number 0372 REPRESENTATIVE KERTTULA mentioned that she has been the attorney for many (indisc.--coughing) agencies, worked with hearing officers, and has gone through this process. She pointed out that the agencies and the administrative hearing officers, who are independent of the agencies, have an ethical duty and that they have bent over backwards to help people, including the individuals who don't have the money to go forward. Representative Kerttula said she thinks there is a misperception about independence from the agency and believes that that needs to be looked at to be sure to keep that integrity in the system or to bolster it where it is necessary. REPRESENTATIVE COGHILL asked if HJR 18 is designed to hold agencies accountable, and if there was an appeal, is this a final court of appeal. REPRESENTATIVE OGAN replied that this is not a final court, as with all hearing officers and adjudication of administrative law, citizens have the right to appeal to the superior court. This is simply a stop gap to that if they're not happy with the outcome. Number 0413 REPRESENTATIVE OGAN referred to a memorandum which was written by a hearing officer on April 30, 1997 to then Commissioner Hensley. Representative Ogan read the following: It is vitally important that the hearing officer remain truly neutral and impartial party to that end. The sections should continue to be treated separately with its own secretary and offices. Offices should not be located within the physical parameters of the Division of Occupational Licensing since the tendency to engage in causal conversation is too great and any new office space configuration, the department should also seriously consider giving the Division of Occupational Licensing, boards and commissions, in the hearing officer's sections, their own separate hearing and meeting room. The boards and commissions are forced to find various meeting rooms all over town which leads to confusion of the public. The hearing officer section is constantly scrambling to find an available space which many times is not appropriate for the number of people involved in the hearing or the type of hearing being held. It is also disturbing for the members of the public to have to walk all over the building to various offices to find a hearing. In several cases we have not been able to use our recording equipment because of disturbances from offices next door. The spacious, well functioning hearing and meeting room reserved for this use should be included in any plans for remodeling office spaces. REPRESENTATIVE OGAN said that this memorandum speaks to the conflict of interest. CHAIR JAMES noted that her previous comments were not meant to be derogatory to anyone. She asked Representative Kerttula if she was hired as an outside hearing officer. REPRESENTATIVE KERTTULA replied that she was serving as the Department of Law's attorney and that hearing officers were hired in some cases. Number 0451 REPRESENTATIVE COGHILL referred to experiences with families that went through horrific circumstances when the agencies were the authority over them. Quite often the people in the "hot-seat" have felt that they are outside the loop and had no recourse and became frustrated with the whole process. Representative Coghill stated that, "But their life was in the hands of these people who were almost in a closed loop even though they were supposed to be independent of each other. And it's so frustrating when it's your child who might be taken away based on a misunderstanding of the charge and you can't break that loop. And I think this would hold an accountability to the agency and kind of separate that loop a little bit." REPRESENTATIVE OGAN mentioned that Dave Stancliff, Legislative Assistant to Representative Ogan, spoke with Ms. Cook (Director, Legal and Research Division, Legislative Affairs Agency), Ed Hein (former legal drafter and now administrative a law judge for the federal government) and Ed Felder (Colorado's chief administrative law judge who is a nationally recognized expert on central panels), and all agreed that the wording of this act [HJR 18] does not prohibit exemptions for certain agencies. The intent is to allow the legislature to have some latitude when the statutes are drafted on who is in and who is out because there are some inherent conflicts with the judicial council. He said he could recognize that that could be a separation of powers and it would be appropriate if they weren't included. REPRESENTATIVE OGAN further stated that all the parties agreed that HJR 18 doesn't create a fourth branch of government and that it preempts the executives' ability to carry out policy because the Administration has the ability to write policy in the regulation. He said they also do not agree that the language interferes with the judicial branch, especially if we have the latitude to exclude the judicial council. Number 0493 REPRESENTATIVE COGHILL moved to report HJR 18 as amended out of committee with individual recommendations and the accompanying fiscal notes. REPRESENTATIVE KERTTULA objected. Upon a roll call vote, Representatives Coghill, Whitaker, James and Ogan voted in support of moving HJR 18. Representatives Smalley and Kerttula voted against it. Therefore, CSHJR 18(STA) passed by a vote of 4-2.
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