Legislature(2001 - 2002)

04/19/2001 01:18 PM TRA

Audio Topic
* first hearing in first committee of referral
+ 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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