Legislature(1995 - 1996)

02/23/1995 08:05 AM STA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
 HSTA - 2/23/95                                                                
 HB 83 - REVIEW OF FEDERALLY MANDATED PROGRAMS                               
                                                                               
 CHAIR JAMES stated that next on the agenda was CSHB 83.  She asked            
 if Representative Ogan was ready to present his bill.                         
                                                                               
 REPRESENTATIVE OGAN asked for a brief recess to prepare.                      
                                                                               
 Number 624                                                                    
                                                                               
 REPRESENTATIVE OGAN stated that during the last hearing of this               
 bill, there were some concerns raised by the Office of Management             
 and Budget, that this could be interpreted as getting too detail              
 oriented with regards to federal mandates and could affect trivial            
 mandates such as the requirement to have fire exits marked.  He               
 said his aide and a representative from OMB had discussed the issue           
 and resolved it.  Another concern raised by Representative Brian              
 Porter was that the bill was conceived to be more reactive than               
 proactive, in that it did not have provisions to try and intercede            
 before federal mandates were finalized.  He brought with him an               
 amendment, which he was hesitant to introduce, but said he would be           
 happy to have it discussed by the committee.  He said they did have           
 a brief presentation with visual aids that his assistant could                
 conduct.                                                                      
                                                                               
 Number 647                                                                    
                                                                               
 ALAN KINGMAN, Legislative Aide to Representative Ogan, said he was            
 there to present a visual overview to demonstrate how the committee           
 substitute for HB 83 would restructure the review of federal                  
 mandates in Alaska.  He stated that Representative Ogan was                   
 concerned that there was some confusion as to how CSHB 83(STA)                
 actually worked.  To begin, he defined the type of mandate this               
 bill would effect as a federal law that implements a desired                  
 federal policy by requiring state or local governments to                     
 participate in or administer a program.  He said this bill requires           
 a review of federally mandated programs.  It does not review                  
 federal preemptions or laws that place limits on states or on                 
 people.  He said it only addresses laws that require the state to             
 act to implement or administer a program.  Examples of these could            
 be environmental laws, public health laws, welfare programs, and              
 public safety programs such as the Brady Bill.  These are the types           
 of programs that CSHB 83(STA) is dealing with, not things such as             
 building codes that a state or individual may have to comply with.            
                                                                               
 MR. KINGMAN said he also wanted to address unfunded mandates, which           
 he defined as a mandate in which a state or local entity must raise           
 the money to pay for their required participation in this program.            
 He reiterated though, that unfunded mandates were not the only type           
 of mandate that this bill was dealing with.  Some mandates are                
 funded, but may not be cost-effective or efficient, suited for                
 Alaska's conditions, or exceed constitutional authority.  CSHB                
 83(STA), he said, is designed to be an immunization against                   
 excessive mandates.  He said the current version of this bill,                
 adopted by this committee earlier, had two separate provisions to             
 deal with existing mandates and newly passed mandates.  For                   
 existing mandates, CSHB 83(STA) would require the OMB to select               
 one-fourth of the existing mandates for review every year.  Thus,             
 every four years, there would be an opportunity for all mandates to           
 be reviewed.  At the end of this time, there would be a different             
 administration who may have a different perspective.  They might              
 want to conduct their own review.  At this point, OMB, the                    
 Department of Law, and the implementing agency would review the               
 mandate for these criteria:  1) Has the federal government exceeded           
 their authority; 2) Are the requirements consistent with Alaska               
 state policy and suitable for Alaska; 3) Are the requirements                 
 cost-effective to implement.  Once the review is completed, a                 
 report is drafted, which is sent to the Governor, House and Senate            
 Judiciary Committees, and the Legislative Budget and Audit                    
 Committee by February 1, of that year.  At this point, they will              
 review this report.  For mandates that come down from Congress                
 after the passage of this bill, the agency head will learn of the             
 new mandate and will review it for the above mentioned criteria.              
 They will then draft a report and send it to the Governor and House           
 and Senate Judiciary Committees.  The agency will not be allowed to           
 implement the mandate until the Governor approves the report and              
 gives the go ahead.  The Judiciary Committees would also do their             
 own review.  The final step, for all mandates, establishes the                
 review of the report coming from either the OMB or the implementing           
 agency by the judiciary committees, who do their own analysis of              
 the mandate.  They would have the option to contract with a legal             
 firm and then make their report to the Governor and the Alaska                
 congressional delegation.  Their recommendations would be of the              
 nature of whether there is a need to seek a change in the federal             
 mandate, possible ways to modify the program to make it more                  
 cost-effective, or if it would be advisable to legally challenge              
 the mandate.  Also, once the agency gets authorization from the               
 Governor to implement a mandate, this bill would require them to              
 develop the program and implement the mandate according to the                
 financial constraints of the state at the time and weighing the               
 costs of implementation against the long-term Alaska benefit.  Mr.            
 Kingman said this was how the bill currently functioned.  The                 
 suggestion made by Representative Porter, at an earlier committee,            
 dealt with adding a section to this bill, which would allow the               
 state to become active with federal mandates when they still are              
 under consideration by the U.S. Congress, before they become law.             
 He thought it might be possible to include this in the bill, by               
 having the Washington D.C. Office of the Governor, monitor                    
 legislation and then give the implementing state agency an early              
 warning of a potential mandated program for that agency.  At this             
 point, the agency would conduct an early expedited review and                 
 report back to the Governor.  The Governor could then make a                  
 decision as to whether Alaska should try to intervene in the                  
 legislation process.  This could either be added into this bill by            
 the proposed amendment before the committee, or might be something            
 that should be a totally separate bill.                                       
                                                                               
 CHAIR JAMES asked if there were any questions or comments from the            
 committee.                                                                    
                                                                               
 TAPE 95-20, SIDE B                                                            
 Number 200                                                                    
                                                                               
 REPRESENTATIVE WILLIS stated he still was not sure he understood              
 the total process of this bill and wanted to know how this bill               
 would effect existing programs such as the Davis Bacon Act.                   
                                                                               
 MR. KINGMAN stated he was not familiar with this act by that name             
 and asked for some more detail.                                               
                                                                               
 REPRESENTATIVE WILLIS said that essentially, when a contractor does           
 work on a federal project, they must pay workers the prevailing               
 union wage.                                                                   
                                                                               
 MR. KINGMAN was not sure that this act would be affected by CSHB              
 83(STA), in that it does not require by his description, the state            
 to implement a federal program.                                               
                                                                               
 CHAIR JAMES thought she might clarify how the Davis Bacon Act                 
 actually works, in that it does require the state to do some                  
 things.  She said the state must determine what the prevailing wage           
 actually is, but that the money in the contract is federal money              
 and not state money.                                                          
                                                                               
 Number 258                                                                    
                                                                               
 REPRESENTATIVE OGAN said he believed this act also applied to state           
 jobs as well and that essentially non-union contractors must pay              
 the same rate as union contractors.  Thus, the idea is that it                
 levels the playing field between non-union and union contractors.             
                                                                               
 MR. KINGMAN said that based on this description, the fact that the            
 state is required to determine the prevailing wage, that this might           
 be considered a mini-program and be subject to review by this bill.           
 He reminded the committee that this bill does not make any                    
 determinations as to whether the state should participate in a                
 federal program, it just gives us a better understanding of the               
 costs of our participation.                                                   
                                                                               
 REPRESENTATIVE WILLIS asked for further clarification as to how               
 this bill would function and offered the Americans With                       
 Disabilities Act as an example to see how it would fit under this             
 legislation.                                                                  
                                                                               
 MR. KINGMAN responded that to the extent the state is charged with            
 implementing this act, then it would certainly be subject to review           
 under CSHB 83(STA).                                                           
 Number 287                                                                    
                                                                               
 CHAIR JAMES clarified that this bill would require a calculation of           
 the dollar figure of implementing a program as a part of the                  
 report.  She thought that this was good and stated that the public            
 would probably have apoplexy if we knew what these programs were              
 costing us.                                                                   
                                                                               
 MR. KINGMAN agreed, saying this was one of the benefits of this               
 bill, is that it allows us to see what those costs really are, in             
 that it requires to check whether there might be a more                       
 cost-effective approach.                                                      
                                                                               
 Number 331                                                                    
                                                                               
 REPRESENTATIVE ROBINSON  stated that some federal laws have a time            
 line in which they must be implemented.  She asked how this bill              
 proposes to conduct its review before that time limit is reached.             
                                                                               
 MR. KINGMAN replied that this would essentially be up to the                  
 Administration, but that this was why this bill allowed for a                 
 program to be implemented before the entire review had been                   
 completed.  What would be required before implementation could go             
 ahead, is the initial analysis report of the implementing agency.             
 Upon receiving this report, the Governor can either authorize                 
 complete implementation or implementation in a certain fashion.               
 This allows for the committees to complete their review and                   
 determine a more long term approach.                                          
                                                                               
 REPRESENTATIVE ROBINSON asked if it would be in the report in the             
 case of mandates where there is a penalty for not complying with a            
 particular mandate.                                                           
                                                                               
 CHAIR JAMES followed up by asking if they were just considering the           
 expense of the state or if they were factoring the costs to the               
 public and the private sector as well.                                        
                                                                               
 MR. KINGMAN said that essentially they were just talking about                
 state spending, but that there was nothing to prevent the OMB or              
 the implementing agency from extending their review to include                
 costs to the public.                                                          
                                                                               
 Number 353                                                                    
                                                                               
 REPRESENTATIVE OGAN stated that when a new administration came in,            
 unless the mandate had changed considerably, their review might               
 consist of just reviewing the existing data and making a decision.            
 He said that they did not have to "reinvent the wheel."  He added             
 their hope was this review would cause some of these mandates to be           
 challenged in court, as he believed the federal government                    
 routinely oversteps its constitutional authority.                             
                                                                               
 REPRESENTATIVE ROBINSON noticed that the fiscal note was relatively           
 small.  She wondered if she had all of the documentation.                     
                                                                               
 MR. KINGMAN stated that in their packets, there should be an                  
 overview sheet.                                                               
                                                                               
 CHAIR JAMES said there was, but that it did not reflect the reduced           
 fiscal note.                                                                  
                                                                               
 Number 382                                                                    
                                                                               
 MR. KINGMAN added that the overview sheet and the existing fiscal             
 notes reflected the old version of this bill, which required that             
 the review be done annually and not every four years.  He said that           
 they believed the fiscal note would be considerably reduced in this           
 new version.  He noted that the last few pages in their packet                
 reflected the reduced fiscal notes from the last committee.                   
                                                                               
 CHAIR JAMES stated she would think the intent of this bill should             
 in practice already be being done and that it would be allowed to             
 be done without this bill, but probably wouldn't.  She said her               
 biggest concern is the relatively large fiscal note, although she             
 recognized the presumption was that there would actually be a                 
 cost-savings by this review and possibly challenging some of these            
 mandates in court.  She said this was a premise and not necessarily           
 a fact, as we had no backup for this.  Chair James also stated that           
 she wished that there was a list of programs that would be reviewed           
 under this legislation and those that would not be.  She thought              
 that as it went through the committee process, this bill might be             
 very vulnerable because of it's large fiscal note.  She said they             
 were in a cost-cutting mode.  She suspected that if this bill were            
 passed, it would not be funded, and so be ineffective.  She gave an           
 example of a past bill that fit this category, in that it passed              
 the legislature and has not been funded for the past ten years.               
                                                                               
 Number 442                                                                    
                                                                               
 REPRESENTATIVE PORTER said he appreciated the sponsor offering this           
 amendment.  Realizing that the amendment might create a separations           
 of power issue, he felt that looking back on it, it might be better           
 to not include it in this bill after all, and that as the motivator           
 of this idea, he would withdraw his suggestion.  He reiterated                
 though, that he appreciated the effort.                                       
                                                                               
 CHAIR JAMES noted that this bill had a further referral to the                
 judiciary committee.  She asked for a motion to pass this bill to             
 the next committee of referral.                                               
                                                                               
 REPRESENTATIVE OGAN commented for the record, that as the sponsor,            
 if the committee felt this bill would not save the state money,               
 then he would prefer that it not pass out of this committee.  He              
 believed it would save money and that the states were crying out              
 for relief from the tyranny of these federal mandates.  He said               
 this bill would depend a lot on the governor pursuing this issue              
 and challenging many of these mandates.  He stated he came down to            
 Juneau to try and reduce the size of government, and he reiterated            
 if this bill did not save the state money, then he would rather not           
 pass it out of committee.                                                     
                                                                               
 Number 488                                                                    
                                                                               
 REPRESENTATIVE PORTER said that considering this, the question                
 still remained as to how to overcome the supremacy of federal law             
 over state law, although he recognized that many of the 10th                  
 Amendment suits currently being pursued would answer many of those            
 questions.  He wasn't sure whether we had the authority to do                 
 anything about it, once we found out how bad many of these federal            
 mandates really are.                                                          
                                                                               
 CHAIR JAMES agreed, saying that many of these mandates still                  
 awaited court decision as to whether they fit under the Tenth                 
 Amendment rights of the states.  She added though, that there were            
 cases, such as highway funds, where the state could choose whether            
 to accept them and the strings attached or not.  She felt that this           
 was an area where there should be a cost-benefit analysis done.               
 Once we did this review, we could determine whether the costs of              
 implementing these programs were really covered by the federal                
 monies or not.  Chair James said she suspected that, in many cases,           
 they were not.  She said these programs added to the bureaucratic             
 growth by requiring additional employees to run them.  She said               
 many of these mandate issues would have to be settled in a court of           
 law to determine their constitutionality.                                     
                                                                               
 REPRESENTATIVE PORTER wasn't sure that those cases where there was            
 a choice of whether or not to take federal monies to implement a              
 program would fall under the review of this bill.                             
                                                                               
 Number 561                                                                    
                                                                               
 REPRESENTATIVE ROBINSON stated she agreed that the intent of this             
 bill was excellent, but she shared many of the same concerns                  
 already expressed.  She thought that with the new Congress, this              
 bill might already be a mute point.  She added she thought that it            
 might just come down to the legislature doing a better analysis,              
 before they accepted federal monies for a program.  She also stated           
 this was something the state legislature needed to look at, because           
 in many cases they put money in to start a program, but do not do             
 an analysis to see what the true costs are of that program.                   
                                                                               
 CHAIR JAMES thought that possibly, this bill might have more impact           
 if it interceded in the formulation stage of mandates verses after            
 the fact.  She said she had discovered this in drafting her                   
 regulation reform bill.  She asked for the committee's decision as            
 to whether to pass this bill out of committee.                                
 Number 600                                                                    
                                                                               
 REPRESENTATIVE PORTER moved to pass CSHB 83(STA) to the next                  
 committee with attached fiscal notes and individual                           
 recommendations.  He stated that as the chair of the judiciary                
 committee, he would be willing to try and solve many of the above             
 mentioned legal issues in that committee.                                     
                                                                               
 CHAIR JAMES asked if there were an objection.  Hearing none, the              
 bill was moved out of committee.                                              

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