Legislature(2001 - 2002)
04/19/2001 01:18 PM House TRA
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 88-METROPOLITAN PLANNING ORGANIZATIONS CHAIR KOHRING announced that the next order of business would be SENATE BILL NO. 88, "An Act relating to metropolitan planning organizations and to establishment of a metropolitan planning organization for the Anchorage metropolitan area; and providing for an effective date." JANET OATES, Staff to Senator Randy Phillips, Alaska State Legislature, came forth on behalf of Senator Phillips, sponsor of SB 88. She stated: Basically, the purpose of this bill is to assist in the Anchorage Metropolitan Area Transportation Study [AMATS], which does the planning for the Anchorage area road system. Senator Phillips and other legislators have been approached by many of our constituents who are frustrated with the process now, finding that many times priorities that community councils and community groups have established somehow are lost along the way when it comes to the actual carrying out of the priorities for the communities. And so Senator Phillips has introduced this bill that would put two legislators on the [AMATS Policy Committee]. Number 1286 REPRESENTATIVE MASEK indicated legislators already have connections with [DOT&PF] (Department of Transportation & Public Facilities) [because of the budget]. She mentioned the regional director of [DOT&PF], the commissioner of DEC (Department of Environmental Conservation), the mayor of Anchorage, and two municipal assembly members. She said she thinks the idea was that the Senate President and the Speaker of the House would designate a representative from each to be on the board. She added that it doesn't seem to fit in properly. MS. OATES responded that she believes the feeling is that because state dollars are involved, there should be a tie-in with members of the legislature. REPRESENTATIVE KOOKESH noted that the Municipality of Anchorage, by resolution, voted not to support this legislation. Second, one question from testifiers at the previous meeting was that if two legislators were put on the panel, how would they get away to go to the monthly meetings in Anchorage? Third, no matter how this is done, if legislators picked by the Senate or the House leadership are on the panel, there is going to be a bias. REPRESENTATIVE KOOKESH noted that finally, there was a lot of discussion about the State of Hawaii allowing legislators to sit on its same board, and there is a constitutional question that still has to be answered. He said he doesn't think the legislature wants to get into a position [of having to] defend a constitutionally flawed position. Number 1549 REPRESENTATIVE SCALZI remarked that he likes the concept of this, and thinks getting a couple of legislators on the board may be helpful. For example, he said the legislator that represented his district before had some frustrations as to why projects weren't being completed on time. On the other hand, he said, he knows there are two things that get in the way of this. REPRESENTATIVE SCALZI stated that he doesn't think the constitutionality of providing the dual office on one board is such a big hurdle, but the way the board mandates the appointments is a problem for him. He said it is his understanding that the proper procedure is to be voted onto the board; the latitude for this group to do that now is available. He asked whether the Senator or other [legislators] interested in being on that board have submitted a proposal or a request that they be appointed. MS. OATES responded that she would have to check with Senator Phillips. REPRESENTATIVE KAPSNER stated that during the previous meeting there was reference to the possibility of disbanding AMATS if the legislature wasn't accommodated. She said it is her understanding that Anchorage wouldn't receive that federal funding anymore if there wasn't a municipal organization to deal with. Number 1702 DAVID MILLER, Division Administrator, Federal Highway Administration (FHWA), came forth and stated that his program provides the vast majority of highway funding in the state. REPRESENTATIVE KAPSNER asked, if there wasn't a municipal planning organization, what that would do to the transportation needs in Anchorage. MR. MILLER responded that Title 23 requires that there be a metropolitan planning organization (MPO) for all areas over 50,000 in population. Without an MPO in place and without funding to it, there could be no federal highway funds going into Anchorage or the Matanuska-Susitna area. REPRESENTATIVE KAPSNER asked what the dollar figure is on that. MR. MILLER answered that he couldn't say off hand. REPRESENTATIVE KOOKESH asked whether the federal statute also explains how people get put on the board. MR. MILLER responded that it does. He said it is very specific. He stated: A metropolitan planning organization may be redesignated by agreement between the governor and units of general-purpose local government that together represent at least 75 percent of the effective population, including the central city or cities as defined by the bureau of census as appropriate to carry out this section. MR. MILLER stated that there was an original designation at some point in the past, and there are bylaws in place as to how new membership is added. In general, when the local affected officials, the AMATS board, and the local government change membership in accordance with their bylaws, that really doesn't constitute a designation that has happened in the past. An instance such as this, when the state legislature interjects itself into the existing process, would be considered a redesignation and would require undergoing that process. Number 1882 REPRESENTATIVE KOOKESH asked whether that process requires input and involvement of the governor. MR. MILLER responded that it does. If this legislation passes and the governor vetoes it or approves it, there would be implications down the road. REPRESENTATIVE KOOKESH remarked that if there was a redesignation, it wouldn't guarantee that two legislators would be put on it, because a redesignation could mean just including two more members from the public. MR. MILLER replied that that could very well be. He added that FHWA would like to see those decisions made at the local level under existing procedures and policies. REPRESENTATIVE KAPSNER asked Mr. Miller whether he was opposed to this legislation. MR. MILLER responded that he doesn't believe it is consistent with "134" in the intent of the federal legislation. Number 1983 DOUGLAS GARDNER, Assistant Attorney General, Transportation Section, Civil Division (Juneau), Department of Law, came forth and stated that it is [the department's] position that the bill is unconstitutional as it's drafted. Having legislators place themselves upon a board that exercises executive powers - such as when a project will be built, which project will be built, how it will be funded, and where it will be placed on the priority list - is the type of activity that Article II, Section 2, of the Alaska constitution addresses with respect to "dual office" holding. MR. GARDNER stated that he thinks it was Representative Masek who said the legislators have a key role in funding [DOT&PF] budgets and projects, but the implementation of those projects is an executive type of function. From the legal standpoint, he said, the department feels that this bill falls more into the category of the exercise of some of those executive powers. REPRESENTATIVE KAPSNER noted that the Legislative Affairs Agency had supplied the committee with a legal opinion that says Hawaii has the same kind of prohibitions on dual office holdings. She asked Mr. Gardner whether there had been court contests. MR. GARDNER responded that he has recently seen a memo [from legislative legal counsel] that identifies the fact that there is this similar constitutional provision on dual office holding in Hawaii, but he didn't see any case citations in the memo. He added that he can't say what the law is in Hawaii; however, he thinks he can say with confidence that [the department's] position is based on what it has been for the last 30 years. Number 2205 REPRESENTATIVE KAPSNER disagreed with the premise that because Hawaii does this, even though it has the same prohibition against dual office holding in its constitution, it's something [Alaska] should do. She remarked that Hawaii does a lot of things that Alaska's not willing to do, such as allowing for aboriginal hunting rights, having two official state languages, having all streets named in the official language, and having "immersion" schools. Representative Kapsner said she doesn't think Alaska has taken the pattern of emulating Hawaii, and doesn't think [Alaska] should start now with AMATS. She added that she doesn't think it has been contested in Hawaii that the list changes with every different office holder. REPRESENTATIVE SCALZI asked whether any part of the bill specifically speaks through the constitution about the dual office holding. He referred to a letter [dated March 14] from the Office of the Attorney General that states that the disqualifications speak to holding an office for pay. He asked whether the position on the board is a paid position. MR. GARDNER answered that he does not know the parameters of the positions on AMATS in terms of payment. REPRESENTATIVE SCALZI said that's the only thing in Section 5 on disqualifications that would preclude someone from having the inability to serve in two positions, unless they were both paid [positions]. Referring to wording on the second page [of the letter], he said it is an interpretation; if the interpretation is just from the statutory language, he thinks it's inadequate. MR. GARDNER responded that the interpretation that was given of SB 88 in that letter was based on a number of prior attorney general opinions in Alaskan cases that were attached to [the letter]; unfortunately, he said, Representative Scalzi may not have had those attachments. With respect to payment, he said he doesn't think that whether the position is paid or unpaid changes the analysis. In an attorney general opinion from December 27, 1996, it quotes language from an Alaskan case that may address Representative Scalzi's opinion. Mr. Gardner read to the committee: The purpose of the prohibition is to guard against conflicts of interest, self-aggrandizement, concentration of power, and dilution of separation of powers in regard to the exercise of the executive, judicial, and legislative functions of our government. MR. GARDNER added that he hadn't considered payment prior to this testimony, but can reconsider it if the committee would like. However, he thinks that was a strong statement by the Alaska Supreme Court. Mr. Gardner said he thinks the best answer is that separation of powers is designed to prevent the concentration of power in that AMATS board, which is really what the legislature would be doing if it placed two members on that board. Number 2424 REPRESENTATIVE SCALZI commented that if that's the only language that case law was derived from, it seems inadequate; he thinks the argument expanded from this simple interpretation of having a dual office that pays is this: [a legislator] may not hold another office position for profit. MR. GARDNER replied that the constitution is a document that ultimately is the Alaska Supreme Court's job to interpret. He said he just tried to convey to the committee the interpretation that his office has given, as part of its function in the constitutional system. CHAIR KOHRING shared that he likes the concept of the legislation; however, he doesn't thinks there are the votes to move it out of the committee. Therefore, [the committee] will hold the bill over indefinitely. [SB 88 was held over.]
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